Lancto v. Bisignano

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
JEFFREY A. L.,
Plaintiff,
v.
No. 8:24-CV-1084
COMMISSIONER OF SOCIAL SECURITY, 	(AMN/PJE)
Defendant.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Hiller Comerford Injury & Disability Law 	JUSTIN M. GOLDSTEIN, ESQ.
6000 North Bailey Avenue- Suite 1A
Amherst, New York 14226
Attorneys for plaintiff
Social Security Administration 	FERGUS J. KAISER, ESQ.
Office of the General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for defendant
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
Jeffrey A. L.2 (“plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) seeking
review of a decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying his application for disability insurance benefits (“DIB”). See Dkt.
1 This matter was referred to the undersigned for Report-Recommendation and in accordance with General
Order 18 and N.D.N.Y. L.R. 72.3(e).
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to 	better 	protect 	personal 	and 	medical 	information 	of 	non-governmental 	parties, 	this 	Report-
Recommendation and Order will identify plaintiff’s last name by initial only.
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 1 of 19

2
No. 1. 	Plaintiff moves for the Commissioner’s decision to be reversed or remanded for
further proceedings. See Dkt. No. 12. The Commissioner cross-moves for the decision
to be affirmed. See Dkt. No. 14.3 Plaintiff filed a reply. See Dkt. No. 15. For the following
reasons, it is recommended that plaintiff’s motion be granted, the Commissioner’s motion
be denied, and the Commissioner’s decision be remanded for further proceedings.
I. Background
On June 13, 2022, plaintiff filed an application for DIB under Title II and Title XVIII
of the Social Security Act, alleging a disability onset date of February 4, 2011. See T. at
163-694 (Dkt. No. 8-5).5 	On September 1, 2022, the Social Security Administration
(“SSA”) denied plaintiff’s claims. See id. at 69-82 (Dkt. No. 8-4). On September 12, 2022,
plaintiff sought reconsideration, which the SSA denied on January 3, 2023. See id. at 83-
97 (Dkt. No. 8-4). Plaintiff appealed and requested a hearing. See id. at 98-99 (Dkt. No.
8-4). On January 16, 2024, a hearing was held before Administrative Law Judge (“ALJ”)
Jeremy G. Eldred. See id. at 28-37 (Dkt. No. 8-2). During the hearing, plaintiff amended
his date of onset to December 30, 2016. 	See id. at 35 (Dkt. No. 8-2). 	On January 30,
2024, the ALJ issued an unfavorable decision. See id. at 14-27 (Dkt. No. 8-2). On July
9, 2024, the Appeals Council denied plaintiff’s request for review, and the decision
became final. 	See id. at 1-6 (Dkt. No. 8-2). 	Plaintiff timely commenced this action on
September 6, 2024. See Dkt. No. 1.
3 This matter has been treated in accordance with General Order 18. Under that General Order, once issue
has been joined, an action such as this is considered procedurally as if cross-motions for judgment on the
pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
4 “T.” followed by a number refers to the pages of the administrative transcript. See Dkt. No. 8. Citations
to the administrative transcript refer to the pagination in the bottom, right-hand corner of the page. Citations
to the parties’ briefs refers to the pagination generated by the Court’s electronic filing and case management
program, located at the header of each page.
5 Due to the voluminous nature and separately-docketed portions of the administrative transcript, in addition
to the record citation, the undersigned includes the docket citations for factual citations.
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 2 of 19

3
II. Legal Standards
A. Standard of Review
“In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled.” 	Joseph J. B. v. Comm’r of Soc.
Sec., No. 1:23-CV-652 (BKS/CFH), 2024 WL 4217371, at *1 (N.D.N.Y. Aug. 29, 2024),
report and recommendation adopted, No. 1:23-CV-652 (BKS/CFH), 2024 WL 4216048
(N.D.N.Y. Sept. 17, 2024) (citing 42 U.S.C. §§ 405(g), 1388(c)(3)); see also Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). 	“Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence.” 	Id. (citing Johnson v.
Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987)); see also Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). “Substantial evidence is ‘more than a mere scintilla,’ meaning that in
the record one can find ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971))). 	“The
substantial evidence standard is a very deferential standard of review . . . [This] means
once an ALJ finds facts, we can reject [them] only if a reasonable factfinder would have
to conclude otherwise.” 	Id. (quoting Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,
448 (2d Cir. 2012) (per curiam)) (internal quotations marks omitted). 	“Where there is
reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion is arguably
supported by substantial evidence.” Id. (citing Martone v. Apfel, 70 F. Supp. 2d 145, 148
(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986)). 	“However, if the correct legal
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 3 of 19

4
standards were applied and the ALJ’s finding is supported by substantial evidence, such
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].’” Id. (quoting Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.
1992)).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . . benefit
. . . .” 	42 U.S.C. § 423(a)(1)(E). 	Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months[.]” 	Id. § 423(d)(1)(A). 	“A medically-determinable impairment is an
affliction that is so severe that it renders an individual unable to continue with his or her
previous work or any other employment that may be available to him or her based upon
age, education, and work experience.” Joseph J. B., 2024 WL 4217371, at *2 (citing 42
U.S.C. § 423(d)(2)(A)). “Such an impairment must be supported by ‘medically acceptable
clinical and laboratory diagnostic techniques.’” 	Id. (citing 42 U.S.C. § 423(d)(3)).
“Additionally, the severity of the impairment is ‘based on objective medical facts,
diagnoses[,] or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.’” 	Id. (quoting
Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21,
2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983))).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520,
to determine whether an individual is entitled to disability benefits:
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 4 of 19

5
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity.
If he [or she] is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits his [or her] physical or
mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him [or her] disabled without
considering 	vocational 	factors 	such 	as 	age, 	education, 	and 	work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a “listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry
is whether, despite the claimant’s severe impairment, he [or she] has the
residual functional capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform . . .
Berry, 675 F.2d at 467 (spacing added). 	“If at any step a finding of disability or non-
disability can be made, the SSA will not review the claim further.” Joseph J. B., 2024 WL
4217371, at *2 (quoting Barnhart v. Thomas, 540 U.S. 20, 24 (2003)). “The plaintiff bears
the initial burden of proof to establish each of the first four steps.” Id. (citing DeChirico v.
Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467)). 	“If the
inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that
the plaintiff is still able to engage in gainful employment somewhere.” 	Id. (citing
DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467)).
III. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ first determined that
plaintiff “did not engage in substantial gainful activity during the period from his amended
alleged onset date of December 30, 2016[,] through his date last insured of December
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 5 of 19

6
31, 2016.” T. at 19 (Dkt. No. 8-2). At step two, the ALJ noted that “[p]rior to the date last
insured, the claimant had the following medically determinable impairments: degenerative
disc disease and stenosis of the lumbar spine,” but found that “[t]hrough the date last
insured, the claimant did not have an impairment or combination of impairments that
significantly limited his ability to perform basic work-related activities for 12 consecutive
months; therefore, the claimant did not have a ‘severe’ impairment or combination of
impairments.” Id. at 19-20 (Dkt. No. 8-2). The ALJ concluded that plaintiff “was not under
a disability, as defined in the Social Security Act, at any time from December 30, 2016,
the amended alleged onset date, through December 31, 2016, the date last insured.” Id.
at 21 (Dkt. No. 8-2).
IV. Discussion
A. The Parties’ Arguments
Plaintiff 	argues 	that 	the 	ALJ 	erred 	in 	the 	“assessment 	of 	[his] 	medically
determinable impairments” and by “failing to proceed past step two of the sequential
evaluation.” Dkt. No. 12 at 8. Plaintiff claims that his “original onset date was February
4, 2011,” and “he stopped working because of his conditions on February 4, 2011.” Id. at
11. 	He also claims that his current impairments are consistent with his medical records
from 2011 documenting several conditions of the lumbar spine and cervical spine,
including degenerative disease and stenosis, for which he received treatment and
underwent lumbar spine surgery in March 2011. 	Id. at 11-12. (citing T. at 296, 298-99,
301-306, 1487-89). 	Plaintiff acknowledges a September 21, 2011, treatment record
noting that he was “receiving good relief from electrical stimulation and that [he] wanted
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 6 of 19

7
to go back to work soon,” but contends that this treatment record does not reflect that he
never returned to work. Id. at 12 (citing T. at 303).
Plaintiff also argues that the ALJ failed to consider any evidence generated after
the date of last insured in determining his level of impairment. See Dkt. No. 12 at 12-13
(citing Matthew P. v. Comm’r of Soc. Sec., No. 3:20-CV-1586 (TWD), 2021 WL 5629070,
*3 (N.D.N.Y. Dec. 1, 2021)). 	Plaintiff acknowledges that there is a gap in his treatment
records “from September 2011 to December 2017,” but asserts that his “treatment records
from 2017 through 2019 show that [he] continued to have medical findings relating to his
medically determinable impairments that existed in 2011” and “[t]he record does not show
any injury since December 31, 2016, the alleged onset date, that would have been the
cause of [his] symptoms and functional limitations in 2017 and onwards.” 	Id. at 13.
Plaintiff asserts that his conditions are degenerative, not traumatic, in origin; therefore,
his “first day of treatment for the impairment after the date last insured is not an accurate
onset date.” 	Id. 	He claims that the ALJ erred by failing to address the entire record,
including any evidence generated after December 31, 2016, and not analyzing whether
this evidence related back to his 2011 conditions. See id. at 17-19.
Additionally, plaintiff also argues that the ALJ erred by concluding that “Dr.
Lorensen’s opinion is inconsistent with the medical evidence from period prior to the
expiration of the date last insured” because Dr. Lorensen “based her opinion upon
impairments that existed prior to the date last insured, including back pain status post
lumbar spine surgery.” Dkt. No. 12 at 15, 19 (citing T. at 21, 61). Similarly, plaintiff argues
that the ALJ erred by not obtaining a medical opinion to establish an onset date. See id.
at 21. Plaintiff explains that it is unclear how the ALJ was able to render a determination
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 7 of 19

8
on the issue of disability through the date of last insured when the prior administrative
medical findings concluded that there was a lack of evidence to reach such a conclusion.
See id. at 19-20. 	He claims the ALJ should have ordered a further medical opinion or
obtained additional medical expert testimony to address this discrepancy. See id. at 20-
21. Finally, plaintiff argues that the ALJ “did not evaluate [his] other alleged impairments,
including COPD, cervical radiculopathy, and obesity.” Id. at 8.
The Commissioner argues that the ALJ’s determination should be affirmed. 	See
generally Dkt. No. 18. 	The Commissioner argues that plaintiff has failed to meet his
burden of demonstrating that he suffered from a severe impairment during the relevant
period because there is “no evidence of record that Plaintiff received any medical
treatment [in the] five years prior to the start of the relevant period, and not until a year
after the close of the relevant period.” Id. at 7-8. The Commissioner claims that plaintiff’s
treatment records from 2011 do not establish a severe impairment, and Dr. Lorensen’s
August 2022 consultative examination report has “no relevance to Plaintiff’s functioning
during the period at issue” because it was rendered six years after the relevant period
and does “not refer back to the relevant period, but, even if [it] had, there is no evidence
contemporaneous to the relevant period which could validate such an opinion. Id. at 8-9
(citing T. at 611-14). Although Dr. Lorensen’s opinion may refer to conditions that were
present prior to the relevant period, the Commissioner argues that Dr. Lorensen’s opinion
does not address plaintiff’s functional limitations during the relevant period as step two
requires. See id. at 10.
Further, the Commissioner argues that plaintiff’s reliance on Matthew P. is
misplaced because the evidence relied on in Matthew P. “post-dated the relevant period
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 8 of 19

9
by only a few months” whereas “the evidence cited by Plaintiff post-dates the close of the
relevant period by almost two years.” 	Dkt. No. 18. at 10 (first quoting Matthew P., 2021
WL 5629070, *4, then citing Morgan v. Saul, No. 19-CV-5915 (AYS), 2021 WL 4551937,
at *10 (E.D.N.Y. Oct. 5, 2021) and Dale A. M. v. Comm’r of Soc. Sec., No. 19-CV-1150
(FJS), 2021 WL 1175160, at *13 (N.D.N.Y. March 29, 2021)).
Additionally, the Commissioner argues that it is unnecessary to obtain additional
medical expert testimony because (1) the decision to obtain a medical expert opinion is
at the discretion of the ALJ, and (2) “the record contains no evidence from the relevant
period which would allow a medical expert to form an opinion on his functioning during
that time.” Dkt. No. 18 at 11. Similarly, the Commissioner states that it is unnecessary to
obtain additional medical opinions because plaintiff’s counsel affirmed at the hearing that
no further development of the record was needed and “it is entirely unclear how an opinion
proffered years after the close of a relevant period during which no medical treatment was
sought or received would be of any use.” 	Id. at 12. 	Finally, the Commissioner asserts
that there is no evidence to support a claim that plaintiff’s chronic obstructive pulmonary
disorder (COPD) constituted a severe impairment because the first mention of upper
respiratory issues in plaintiff’s treatment records is from December 16, 2017. See id.
B. ALJ’s Step Two Determination
1. Severe Impairment
“To qualify for benefits, [a plaintiff] must have been disabled within the meaning of
the Social Security Act between the alleged onset date . . . through the date of last
insured.” McKinstry v. Astrue, 511 F. App’x 110, 111 (2d Cir. 2013) (summary order) (citing
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)); Ashley E. v. Comm’r of Soc. Sec., No.
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 9 of 19

10
6:22-CV-299 (GTS/CFH), 2023 WL 6217792, at *4 (N.D.N.Y. Aug. 21, 2023), report and
recommendation adopted, No. 6:22-CV-299 (GTS/CFH), 2023 WL 6215829 (N.D.N.Y.
Sept. 25, 2023) (citing Jaquish v. Comm’r of Soc. Sec., No. 8:16-CV-0399 (GTS), 2017
WL 3917019, at *6 (N.D.N.Y. Sept. 6, 2017) (“The relevant period for the Title II claim
spans between the . . . alleged onset date to the date last insured . . . .”)).
“[A]t the second step of [the] sequential evaluation it must be determined whether
medical evidence establishes an impairment or combination of impairments ‘of such
severity’ as to be the basis of a finding of inability to engage in any [substantial gainful
employment].” 	Loni S. v. Comm’r of Soc. Sec., No. 3:22-CV-805 (CFH), 2023 WL
4195887, at *10 (N.D.N.Y. June 27, 2023) (quoting SSR 85-28, Titles II & Xvi: Med.
Impairments That Are Not Severe, 1985 WL 56856, at *3 (S.S.A. 1985); see also 20 C.F.R.
§§ 416.920(c), 416.921. 	“An impairment or combination of impairments is found ‘not
severe’ and a finding of ‘not disabled’ is made . . . when medical evidence establishes
only a slight abnormality or a combination of slight abnormalities which would have no
more than a minimal effect on an individual's ability to work . . . .” 	Id. (quoting SSR 85-
28, 1985 WL 56856, at *3). “Although an impairment is not severe if it has no more than
a minimal effect on an individual's physical or mental ability(ies) to do basic work activities,
the possibility of several such impairments combining to produce a severe impairment
must be considered.” Id. (quoting SSR 85-28, 1985 WL 56856, at *3). “If such a finding
is not clearly established by medical evidence, however, adjudication must continue
through the sequential evaluation process.” Id. (quoting SSR 85-28, 1985 WL 56856, at
*3). “SSR 85-28 instructs that ‘[g]reat care should be exercised in applying the not severe
impairment concept.” Id. (quoting SSR 85-28, 1985 WL 56856, at *4). “If an adjudicator
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 10 of 19

11
is unable to determine clearly the effect of an impairment or combination of impairments
on the individual's ability to do basic work activities, the sequential evaluation process
should not end with the not severe evaluation step. 	Rather, it should be continued.” Id.
(quoting SSR 85-28, 1985 WL 56856, at *4)
“The claimant bears the burden of presenting evidence establishing severity.” Loni
S., 2023 WL 4195887, at *11 (quoting Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y.
2012)). “[T]he standard for a finding of severity under Step Two of the sequential analysis
is de minimis and is intended only to screen out the very weakest cases.” 	Id. (quoting
McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995))). 	“However, the mere presence of a disease or impairment, or
establishing that a person has been diagnosed or treated for a disease or impairment’ is
not, by itself, sufficient to render a condition ‘severe.” Id. (quoting Taylor, 32 F. Supp. 3d
at 265 (quoting Coleman v. Shalala, 895 F. Supp. 50, 54 (S.D.N.Y. 1995))) (internal
quotation marks omitted).
“The Second Circuit ‘has observed, repeatedly, that evidence bearing upon an
applicant’s condition subsequent to the date up to which the earning requirement . . . was
last met is pertinent evidence in that it may disclose the severity and continuity of
impairments existing before the earning requirement date.’” 	Brian C. v. Comm’r of Soc.
Sec., No. 3:22-CV-1292 (LEK/TWD), 2024 WL 1468869, at *7 (N.D.N.Y. Feb. 20, 2024),
report and recommendation adopted sub nom. Brian C. v. Comm’r of Soc. Sec., No. 3:22-
CV-1292 (LEK/TWD), 2024 WL 1069877 (N.D.N.Y. Mar. 12, 2024) (quoting Tari L. E. v.
Comm'r of Soc. Sec., No. 1:21-CV-1283 (DEP), 2023 WL 395189, at *4 (N.D.N.Y. Jan.
24, 2023) (quoting Guarino v. Comm’r of Soc. Sec., No. 7:07-CV-1252 (GLS/VEB), 2010
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 11 of 19

12
WL 199721, at *7 (N.D.N.Y. Jan. 14, 2010))); see Lisa v. Sec’y of Dep’t of Health & Human
Servs., 940 F.2d 40, 44 (2d Cir. 1991) (same); Karen S. v. Comm'r of Soc. Sec., No. 20-
CV-0960 (CFH), 2022 WL 462086, at *9 (N.D.N.Y. Feb. 15, 2022) (quoting Carter v.
Comm’r of Soc. Sec., No. 5:14-CV-1315 (GTS/WBC), 2015 WL 8029511, at *4 (N.D.N.Y.
Nov. 12, 2015), report and recommendation adopted sub nom. Carter v. Colvin, No. 5:14-
CV-1315 (GTS/WBC), 2015 WL 8180368 (N.D.N.Y. Dec. 7, 2015) (“[M]edical evidence
obtained after a plaintiff's [date last insured] can be used to show that a plaintiff was
disabled prior to that date as long as it pertains to already-existing impairments”); Zaida
B. v. Comm’r of Soc. Sec., No. 1:20-CV-9748, 2022 WL 3867523, at *5 (S.D.N.Y. June 1,
2022), report and recommendation adopted, 2022 WL 3867903 (S.D.N.Y. Aug. 30, 2022)
(quoting Martinez v. Massanari, 242 F. Supp. 2d 372, 378 (S.D.N.Y. 2003)) (noting that
opinion evidence “rendered after the date last insured, can nevertheless be indicative of
‘some enduring, preexisting, or even progressive condition, the permanent or variable
nature 	of 	[the] 	diagnoses 	and 	ailments, 	and, 	perhaps, 	any 	potential 	intervening
aggravating factors possibly accounting for some worsening of her condition.’”).
2. Analysis
As stated, the ALJ determined at step-two that, “[t]hrough the date last insured,”
December 31, 2016, “the claimant did not have an impairment or combination of
impairments that significantly limited his ability to perform basic work-related activities for
12 consecutive months; therefore, the claimant did not have a ‘severe’ impairment or
combination of impairments.” T. at 19-20 (Dkt. No. 8-2). The undersigned concludes that
the ALJ’s 	step-two 	determination 	failed 	to apply 	the appropriate 	standard by 	not
considering evidence generated after December 31, 2016, and is, therefore, unsupported
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 12 of 19

13
by substantial evidence. Brian C., 2024 WL 1468869, at *7; Karen S., 2022 WL 462086,
at *9; Martinez, 242 F. Supp. 2d at 378; Joseph J. B., 2024 WL 4217371, at *1 (first citing
Johnson, 817 F.2d at 985-86, then quoting Halloran, 362 F.3d at 31).
In reaching the step-two determination, the ALJ considered plaintiff’s testimony
that he was unable to work since 2011 due to back pain, his back surgery did not help
alleviate his back pain, and he continues to have difficulty bending and standing for long
periods of time. 	See T. at 20 (Dkt. No. 8-2). 	The ALJ also considered plaintiff’s 2011
medical records documenting (1) diagnoses of DDD and stenosis of the lumbar spine,
(2) that plaintiff underwent back surgery in March 2011, and (3) physical therapy notes
from September 2011 noting that plaintiff “was getting good relief from an electrical
stimulation unit and that [he] wanted to go back to work soon.” Id. at 20-21 (Dkt. No. 8-
2) (citing T. at 303). The ALJ concluded:
Given the lack of longitudinal evidence establishing a 12-month period of
functional limitation prior to the expiration of the date last insured, as well
as the indications in September 2011 that the claimant was experiencing
relief from his pain and wanted to go back to work, I find that the evidence
does not support the claimant’s allegations regarding the extent of the
functional limitations caused by his symptoms, as those allegations relate
to the period prior to the expiration of the date last insured.
Id. at 21 (Dkt. No. 8-2).
Yet, the ALJ’s analysis does not consider any of plaintiff’s medical and treatment
records generated after December 31, 2016. 	See T. at 17-22 (Dkt. No. 8-2). 	The ALJ
stated that he considered all of plaintiff’s medical and treatment records following the date
of last insured, but the hearing decision does not list or discuss these records or provide
any meaningful analysis thereof. 	See id. at 17-27 (Dkt. No. 8-2). 	More specifically,
plaintiff’s records note that on December 16, 2017, plaintiff was documented as suffering
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 13 of 19

14
from “Spinal DJD.” Id. at 373 (Dkt. No. 8-7). On January 8, 2018, a chest x-ray revealed
“mild degenerative changes” of the “mid lower thoracic spine.” Id. at 364 (Dkt. No. 8-7).
On August 21, 2018, plaintiff was treated for right leg pain that radiated down the back of
his leg to his right foot. 	See id. at 921 (Dkt. No. 8-9). The treatment record states that
plaintiff had been suffering from leg pain for the prior “45 weeks” and “some low back pain
for the past several months.” Id. (Dkt. No. 8-9). During a physical examination, the right
leg straight leg raise test was positive, with the treatment provider noting “sacroiliac joint
tenderness.” 	Id. at 922 (Dkt. No. 8-9). 	Plaintiff was diagnosed with “Lumbago with
sciatica, right side” and prescribed an oral steroid and physical therapy. Id. at 924 (Dkt.
No. 8-9). On January 28, 2019, plaintiff was treated for “ongoing [right] low back pain that
radiates down mid buttocks and around the right side of his right thigh.” Id. at 904 (Dkt.
No. 8-9). 	Plaintiff reported the pain was “constant, throbbing, [and] stabbing”; was not
relieved by pain medication; and that his back pain prevented him from “cutting and
carrying his own firewood.” 	Id. (Dkt. No. 8-9). 	Plaintiff’s treatment records between
February 2019 and August 2019 document degenerative changes to his lumbar and
cervical spine, treatment for various forms of back pain that radiated to his right leg, and
that plaintiff was “able to ambulate with difficulty.” T. at 358; see T. at 358-61, 515, 633-
37, 898-904 (Dkt. Nos. 8-7, 8-9).
Most of the conditions described in the 2017 to 2019 medical and treatment
records appear to be the same or similar conditions to those plaintiff was treated for in
2011. As such, it appears these records may demonstrate at least di minimis evidence
that plaintiff suffered from a severe impairment during the relevant period that precluded
him from performing “basic work activities.” Loni S., 2023 WL 4195887, at *10-11.
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 14 of 19

15
Therefore, the ALJ’s step-two determination is not supported by substantial
evidence and remand is necessary to consider the evidence dated after December 31,
2016. See Cedric B. v. Comm’r of Soc. Sec., No. 22-CV-558 (MJR), 2024 WL 4834223,
at *5 (W.D.N.Y. Nov. 20, 2024) (citing Ruth H-Z. v. Comm'r of Soc. Sec., No. 1:20-CV-
1859 (EAW), 2022 WL 2586533, at *7 (W.D.N.Y. July 8, 2022)) (concluding that the ALJ
committed error and remand was required because, although “the ALJ's step two
determination is entitled to deference if it is free from error and supported by substantial
evidence, . . . the ALJ's step two finding here, that Plaintiff's [conditions] were so clearly
insubstantial so as to not meet the de minimis standard, is not supported by substantial
evidence.”); Ruth H-Z., 2022 WL 2586533, at *7 (citing Dawn Lyn C, v. Acting Comm’r of
Soc. Sec., Defendant., No. 3:20-CV-545 (TOF), 2021 WL 4398372, at *8 (D. Conn. Sept.
27, 2021) (“Viewing the record in its entirety, and considering the ‘low,’ ‘de minimis’
standard that applies here, the Court concludes that the ALJ’s decision to reject the
Plaintiff’s claim at Step Two is not supported by substantial evidence.”).
Although the Commissioner argues that plaintiff’s reliance on Matthew P. is
misplaced because “the evidence cited by Plaintiff post-dates the close of the relevant
period by almost two years,” the undersigned disagrees. Dkt. No. 14 at 10. In Matthew
P., the ALJ concluded that the plaintiff “did not have a medical determinable impairment
prior to his date last insured of December 31, 2018.” Matthew P., 2021 WL 5629070, at
*2. 	There, the plaintiff “first obtained medical treatment for his heart condition in 2011,”
continued to receive medical treatment until 2012 when he lost his health insurance, and
began receiving medical treatment again in April 2019, when he was admitted to the
emergency room for “chest pain, shortness of breath, and numbness in both of his legs”
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 15 of 19

16
that he “reported experiencing . . . intermittently for the previous six months.” 	Id. at *4.
The record in Matthew P. contains medical and treatment records from 2019 following
plaintiff’s hospitalization. 	See id. at *4-6. 	Matthew P. concluded that the ALJ’s
determination “is at odds with the governing legal standard for analyzing claims at step
two, and it is unsupported by substantial evidence” because the ALJ failed to consider
medical evidence post-dating the relevant period by four to six months. 	Id. at *6. 	The
Court explained that “[a]lthough it would be easier for Plaintiff to satisfy this standard with
contemporary medical records, he can do so with evidence from before or after the
relevant time period. 	He has done so here, and substantial evidence does not support
the ALJ's conclusion to the contrary.” Id. (internal citations omitted).
Here, plaintiff’s August 21, 2018, treatment record noted that he was suffering from
back pain for “the past several months” and had associated pain that radiated down his
right leg for “45 weeks” prior. T. at 921 (Dkt. No. 8-9). Forty-five weeks before to August
21, 2018, is October 10, 2017, approximately ten months after the date of last insured.
The undersigned concludes that the ALJ erred in reaching his step-two determination by
failing to consider the evidence post-dating December 31, 2016. 	See T. at 20-21 (Dkt.
No. 8-2). Accordingly, the ALJ’s decision is not supported by substantial evidence. The
undersigned recommends remand to address this deficiency because the evidence
generated after the date of last insured could change the ALJ’s step 2 analysis and overall
conclusion. 	See Brian C., 2024 WL 1468869, at *7; Karen S., 2022 WL 462086, at *9;
Martinez, 242 F. Supp. 2d at 378; Cedric B., 2024 WL 4834223, at *5; Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 16 of 19

17
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.”).
Plaintiff also argues that the ALJ erred by (1) not considering whether his COPD is
a severe impairment; and (2) finding Dr. Lorensen’s opinion and the prior administrative
medical findings unpersuasive because they were not supported by, and inconsistent
with, the evidence of record. See Dkt. No. at 2, 19-20. On remand, the undersigned also
recommends that the ALJ be instructed to consider whether COPD constitutes a severe
impairment because this condition was not analyzed in the hearing decision on appeal.
Similarly, the undersigned recommends that the ALJ be instructed to reevaluate his
conclusions regarding the supportability and consistency factors of state consultative
examiner Dr. Elke Lorensen, M.D.’s opinion and the prior administrative medical findings,
as the ALJ’s analysis may change after considering the evidence generated after
December 31, 2016. See T. at 21 (Dkt. No. 8-2); see also Lena Nicole H. v. Comm’r of
Soc. Sec., No. 1:23-CV-826 (MAD/TWD), 2024 WL 4133819, at *5 (N.D.N.Y. July 30,
2024) (quoting 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (“An ALJ is specifically
required to explain how [he or she] considered the supportability and consistency factors
for a medical opinion.”) (internal quotation marks omitted)).
Plaintiff further argues that the ALJ erred by not ordering additional medical
opinions and additional medical expert testimony to reach his step-two determination.
See Dkt. No. 12 at 19-23. 	It is not necessary to address these arguments at this time
because, as stated above, the ALJ’s analysis may change after considering the evidence
generated after the date of last insured. Until the ALJ reviews the additional evidence, it
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 17 of 19

18
is unclear whether additional medical expert testimony or an additional medical opinion
is necessary for the ALJ to reach the step-two determination. It would be improper for the
undersigned to pre-adjudicate the ALJ’s determination on remand. 	See Devra B. B. v.
Comm’r of Soc. Sec., No. 6:20-CV-643 (BKS), 2021 WL 4168529, at *8 (N.D.N.Y. Sept.
14, 2021) (“Because the Court has determined that remand is required, the Court does
not reach Plaintiff's remaining arguments.”); Shields v. Astrue, No. 11-CV-2088 (FB), 2012
WL 1865505, at *3 (E.D.N.Y. May 22, 2012) (“In light of the decision to remand this case
with instructions to consider new evidence on Shields's cardiac condition, it is not
necessary to address this argument.”); Savo v. Astrue, No. 3:10-CV-1612 (CFD/TPS),
2011 WL 5025488, at *1 (D. Conn. Oct. 21, 2011) (“Because the Court has ordered the
case remanded for further proceedings based on the ALJ’s evidentiary error, it is not
necessary to address the plaintiff’s remaining contentions.”).
V. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that plaintiff’s cross-motion (Dkt. No. 12) be GRANTED; and it
is further
RECOMMENDED, 	that 	the 	Commissioner’s 	cross-motion 	(Dkt. 	No. 	14) 	be
DENIED, and the Commissioner’s decision be reversed and remanded for further
proceedings consistent with this Report-Recommendation and Order; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 18 of 19

19
Pursuant to U.S.C. §636(b)(1) and Local Rule 72.1(c), 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)); 28 U.S.C. §636(b)(1); FED. R. CIV P. 6(a), 6(e), 72.
Dated: December 17, 2025
Albany, New York
Case 8:24-cv-01084-AMN-PJE Document 16 Filed 12/18/25 Page 19 of 19