Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TAMMY LESTINGI,
Plaintiff,
-against-
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM AND ORDER
Case No. 1:24-CV-6025
Appearances:
For the Plaintiff:
HAROLD SKOVRONSKY
Harold Skovronsky
1222 Avenue M, Suite 501
Brooklyn, NY 11230
For the Defendants:
ANNE M. ZEIGLER
NICKEITTA ZIMMERMAN
SHANNON FISHEL
SSA – Office of the General Counsel
6401 Security Boulevard
Baltimore, MD 21235
BLOCK, Senior District Judge:
Plaintiff Tammy Lestingi seeks review of the Commissioner of the Social Security
Administration’s (“the Commissioner”) denial of her application for Social Security Disability
Insurance benefits under Title II of the Social Security Act. Both parties moved for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons,
Lestingi’s motion is GRANTED to the extent that the case is remanded for further proceedings
consistent with this decision; accordingly, the Commissioner’s motion is DENIED.
I. Background
Lestingi suffers from long COVID, or post-acute sequelae of COVID-19 (“PASC”). Tr. at
46, ECF No. 4.1 Specifically, Lestingi has been diagnosed with post-COVID chronic urticaria
1 The Commissioner filed the administrative transcript of the proceedings before the Social Security Administration
at ECF No. 4. All references to ECF No. 4 are denoted as “Tr. __.”
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(hives) and complains of brain fog/cognitive impairment. Id. at 358, 392. Lestingi has also been
diagnosed with type II diabetes. Id. at 389.
Lestingi applied for Social Security Disability Insurance benefits on July 7, 2022, with an
alleged disability onset date of June 27, 2022. Id. at 17. Lestingi claimed that she is disabled by
her post-COVID urticaria and her diabetes. Id. at 63. Lestingi previously worked as a security
guard at an elementary school, id. at 44, but has not worked in that capacity since June 2022. Id.
at 19, 71.
After a hearing before an administrative law judge (“ALJ”), the ALJ issued a decision
finding Lestingi not disabled. Id. at 14–27. The ALJ found that Lestingi had not engaged in
substantial gainful activity since the alleged disability onset date and that her post-COVID
urticaria and diabetes constituted severe impairments. Id. at 19. The ALJ found, however, that
Lestingi is able “to perform a full range of work at all exertional levels,” and, therefore, she is
not disabled. Id. at 20–24.
The Appeals Council denied review of the ALJ’s decision, id. at 1, and Lestingi thereafter
commenced this action.
II. Discussion
District courts reviewing the Commissioner’s determinations under 42 U.S.C. § 405(g)
must “conduct a plenary review of the administrative record to determine if there is substantial
evidence, considering the record as a whole, to support the Commissioner’s decision and if the
correct legal standards have been applied.”2 Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir.
2022). They may not conduct a de novo review or substitute their judgment for that of the ALJ,
see Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), reversing the ALJ “only if the
2 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations, and adopts all
alterations, unless otherwise indicated.
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factual findings are not supported by substantial evidence or if the decision is based on legal
error,” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). “Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
The Commissioner employs a five-step inquiry to evaluate Social Security disability
claims. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). At step one, the ALJ found that
Lestingi had not engaged in substantial gainful activity since the alleged disability onset date. Tr.
at 19. At step two, the ALJ concluded that Lestingi’s post-covid urticaria and diabetes constituted
severe impairments. Id. at 19–20. At step three, the ALJ found that these impairments did not
meet or equal the severity of the specified impairments in the Listing of Impairments. Id. at 20.
At step four, the ALJ conducted a residual functional capacity (“RFC”) analysis, concluding that
Lestingi “has the residual functional capacity to perform a full range of work at all exertional
levels,” including her past work, with minor non-exertional limitations. Id. at 20–24.
Lestingi now contends that the ALJ’s RFC findings concerning her mental capacity and
physical abilities are not supported by substantial evidence. She asserts that the ALJ erred in
relying on the opinions of the State Agency medical consultants and the consultative examiner
over those of her physicians, in failing to sufficiently develop the record, and in improperly
discounting her brain fog.
The Court agrees that the ALJ erred in its determinations for two primary reasons: (1) for
relying on contradictory findings and not developing the record in light of these inconsistencies,
and (2) in making an RFC finding not supported by substantial evidence.
A claimant’s RFC represents the most that can be done despite any limitations based on
the record. 20 C.F.R. § 404.1545(a)(1). In making its determination, the ALJ correctly followed a
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two-step process. Tr. at 21; see 20 C.F.R. § 404.1529(a). First, the ALJ assessed whether any
medically determinable impairments could reasonably be expected to produce Lestingi’s
symptoms. Tr. at 21. Second, the ALJ assessed those symptoms to determine the extent to which
they limited Lestingi’s work-related activities. Id.
The ALJ determined that Lestingi’s medically determinable impairments—her post-
COVID urticaria and her diabetes—could be expected to cause only some of her alleged
symptoms, and that Lestingi’s statements concerning her symptoms were not entirely consistent
with the medical evidence in the record. Id. One reason for this, the ALJ explained, is evidence
in the record that Lestingi had worked since her alleged disability onset date. Id. Specifically, a
report from a doctor’s visit on July 18, 2022 (a few weeks after the alleged onset date) noted that
Lestingi had asked “if she needs a note for work for [a medication] given that she sits at the front
desk of a facility.” Id. at 284. However, at step one, the ALJ had determined that Lestingi had not
engaged in substantial gainful activity since her alleged onset date. Id. at 19; 20 C.F.R. §
404.1520(4)(i) (“At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.”). Thus, the ALJ’s findings
appear to contradict themselves.
The Seventh Circuit, considering a more modest contradiction, concluded that the ALJ
had committed reversible error. Poole v. Kijakazi, 28 F.4th 792, 793 (7th Cir. 2022). There, the
ALJ found that the claimant was both limited to sedentary work and could alternate all day long
between sitting and standing every 15 minutes. Id. at 795–96. The Seventh Circuit explained that
“the ALJ’s decision rested on two contradictory findings, and so we reverse and remand this case
to the agency for further proceedings.” Id. at 793. Thus, at a minimum, the ALJ erred in using
evidence of Lestingi having worked as a reason to conclude that she was not disabled despite
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finding that she had not engaged in substantial gainful activity since the alleged onset date. See
id. at 796.
An ALJ “has an affirmative obligation to develop the administrative record,” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996), which includes a duty to clarify the record when presented
with inconsistencies. Pope v. Barnhart, 57 F. App'x 897, 899 (2d Cir. 2003) (“An ALJ has an
independent duty to resolve ambiguities and inconsistencies.”); Lori S. v. O'Malley, 727 F. Supp.
3d 78, 83 (D. Conn. 2024) (“An ALJ has a duty to develop the record where obvious
inconsistencies exist.”). Accordingly, the ALJ erred in failing to develop the record to resolve
this inconsistency. On remand, the ALJ should develop the record to ascertain whether Lestingi
has, in fact, engaged in substantial gainful activity.
The ALJ then reviewed Lestingi’s medical records, noting that she had “gone into
anaphylaxis and required emergency room treatment at least ten times in the previous year.” Tr.
at 21. Lestingi, however, had apparently not been hospitalized since the alleged onset date. Id.
The ALJ explained that treatments for Lestingi’s urticaria, including regular injections, were
progressing well. Id. at 22. Regarding Lestingi’s brain fog, the ALJ discounted Lestingi’s
symptoms as unsupported by the medical evidence because a physician “only advised the
claimant to continue[] crossword puzzles and brain teasers.” Id. The ALJ also described
Lestingi’s diabetes as “doing well.” Id.
The ALJ then reviewed the opinions of the State Agency medical consultants, the
consultative examiner, and Lestingi’s physicians. Id. at 22–23. Dr. Tayab and Dr. Levit, State
Agency medical consultants, opined that Lestingi had no exertional limitations. Id. at 66, 77.
This is in contrast to Lestingi’s treating physician, Dr. Cheek, who opined that Lestingi had
significant exertional limitations. Id. at 387. For example, Dr. Cheek opined that Lestingi could
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occasionally lift 10 pounds, frequently lift less than 10 pounds, stand or walk about four hours in
an eight-hour day, and use her hands for fine motor activities only occasionally. Id. at 387–88.
The ALJ discounted the opinion of Dr. Cheek and adopted the views of Drs. Tayab and Levit—
that Lestingi could engage in “a full range of work at all exertional levels.” Id. at 20, 22–23.
Although the ALJ does not explain this, a finding that Lestingi has the RFC to perform
work at “all exertional levels” means the ALJ found that Lestingi can perform everything from
“sedentary work” to “very heavy work.” 20 C.F.R. § 404.1567; Kaitlyn S. v. Comm’r of Soc.
Sec., No. 20-CV-0728-MJR, 2021 WL 4077328, at *5 (W.D.N.Y. Sep. 7, 2021) (“By concluding
that plaintiff could perform work at all exertional levels, the ALJ implicitly determined that
plaintiff could also perform ‘very heavy work,’ which is defined as ‘lifting objects weighing
more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds
or more.”) (quoting 20 C.F.R. § 404.1567(e)). However, aside from the cursory conclusions of
the state examiners, no record evidence supports such a conclusion. The ALJ, rather than
supporting this finding with evidence, “appears to have assumed that a claimant who does not
suffer any exertional limitations can be presumed to be capable of lifting and carrying 100
pounds occasionally and 50 pounds frequently.” Catalano v. Berryhill, No. 17-CV-7120 (SN),
2018 WL 6437059, at *8 (S.D.N.Y. Dec. 7, 2018) (quotation omitted). As the Southern District
explained, “[t]hat presumption is flawed, however, because “a person without any medically
recognizable impairments may be unable to lift and carry such weights.” Id. (quotation omitted).
Furthermore, as the ALJ found, Lestingi has severe impairments, which make such a conclusion
even less convincing. Tr. at 19.
In support of its conclusion, the ALJ noted that “the treatment records regularly show
normal gait and no abnormalities on musculoskeletal examinations. The claimant has full range
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of motion of all extremities and has good and equal strength and intact hand dexterity. She is also
independent with her activities of daily living and continues to drive.” Id. at 23. None of these
findings, however, support the notion that Lestingi can perform work at “all exertional levels,”
including “very heavy work.” See Catalano, 2018 WL 6437059, at *8 (explaining why similarly
slight evidence cannot support a finding that claimant had the RFC to perform work at all
exertional levels).
On the contrary, evidence in the record supports Lestingi’s contention that she has a more
modest RFC than the ALJ found. Evidence shows that Lestingi is an obese, diabetic woman who
suffers from long COVID and brain fog. Id. at 406, 423. At the time of the ALJ’s decision, she
was 59 years old, which under agency regulations, means she was a “person of advanced age.”
20 C.F.R. § 404.1563(e). Lestingi testified that she cannot comfortably stand for more than an
hour without having to sit down, which Dr. Cheek’s opinion would tend to support. Id. at 47,
387. As the ALJ noted, Lestingi had “gone into anaphylaxis and required emergency room
treatment at least ten times in the previous year.” Id. at 21 (emphasis added). It is difficult to
believe that such a person could perform all work at any exertional level, including “very heavy
work,” and the Court cannot find evidence in the record to support such a conclusion.
Lestingi’s mental limitations are also concerning. A September 2023 report from another
personal physician, Dr. Muttreja, notes that Lestingi reports having “significant memory
concerns.” Id. at 401. Dr. Muttreja noted that “[i]f [Lestingi] does not write things down she does
not remember them. She is always walking around with notepads to assist.” Id. Dr. Muttreja then
referred Lestingi for a cognitive evaluation—contrary to the ALJ’s determination that Lestingi
was only ever advised to do “brain teasers.” Id. at 22, 401. Although Lestingi’s mental
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limitations are “non-exertional,” they are nevertheless “relevant to Plaintiff's capacity to return to
work[.]” Lim v. Colvin, 243 F. Supp. 3d 307, 317 (E.D.N.Y. 2017).
The Commissioner contends that the ALJ appropriately weighed the conflicting opinions
of State Agency consultants, examiners, and Lestingi’s physicians and it was within the
discretion of the ALJ to conclude that Dr. Tayab’s, Dr. Levit’s, and Dr. Lambert-Doorn’s opinions
were more persuasive than Lestingi’s physicians’ opinions. The Commissioner is correct that the
old treating physician rule was abrogated and that the ALJ is not required to defer to a claimant’s
treating physician’s opinions. Rushford v. Kijakazi, No. 23-317, 2023 WL 8946622, at *1 (2d Cir.
Dec. 28, 2023). The ALJ must nevertheless assess medical opinions based on the factors set forth
at 20 C.F.R. § 404.1520c, the most important of which are supportability and consistency. See
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. at 5853 (“These
final rules help eliminate confusion about a hierarchy of medical sources and instead focus
adjudication more on the persuasiveness of the content of the evidence.”); see also Acosta
Cuevas v. Comm’r of Soc. Sec., No. 20-CV-0502 (AJN) (KHP), 2021 WL 363682, at *9
(S.D.N.Y. Jan. 29, 2021) (Noting that analysis under the new regulations is similar to the treating
physician rule because, “under the old rule, an ALJ had to determine whether a treating
physician’s opinion was supported by well-accepted medical evidence and not inconsistent with
the rest of the record before controlling weight could be assigned.”).
The ALJ concluded that the assessments of Drs. Tayab, Levit, and Lambert-Doorn were
“representative of the available medical evidence,” and that Dr. Cheek’s opinions were not. The
significant record evidence of Lestingi’s limitations, however, undermines the supportability and
consistency of the opinion that she has no exertional limitations. Although it is for the ALJ to
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weigh the evidence, for the reasons explained above, the ALJ’s conclusion that Lestingi can
“perform a full range of work at all exertional levels” is not supported by substantial evidence.
The Court further concludes that this error is not harmless. The ALJ made the
determination that Lestingi could perform her past work as a security guard—which required her
to be able to perform medium exertional work—based on its hypothetical posed to the vocational
expert that Lestingi had no exertional limitations. Tr. at 23, 54. Because the RFC determination
was not supported by substantial evidence, the ALJ’s reliance on the vocational expert’s
conclusion was also erroneous. See McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (“An
ALJ may rely on a vocational expert’s testimony regarding a hypothetical as long as there is
substantial record evidence to support the assumptions upon which the vocational expert based
his opinion.”).
The Court is cognizant of its limited role here: “the reviewing court’s task is limited to
determining whether substantial evidence exists to support the ALJ's fact-finding; it may not
reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is
susceptible of more than [one] interpretation.” Rivera v. Comm’r of Soc. Sec., 368 F. Supp. 3d
626, 642 (S.D.N.Y. 2019). The Court concludes that the ALJ’s findings concerning Lestingi’s
RFC, and thus her ability to perform her past relevant work, were not supported by substantial
evidence. It may be the case that Lestingi is not disabled, but the Court is not in a position to
make that determination. It is the duty of the ALJ to further develop the record and reweigh the
evidence on remand in light of the Court’s concerns.
III. Conclusion
Given the ample record support for some level of physical or mental limitations, the
Court concludes that “no reasonable factfinder could have reached the same conclusion as the
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ALJ” on the issue of Lestingi’s RFC. Schillo, 31 F.4th at 69. The ALJ’s disability determination
is thus not supported by substantial evidence. This case is remanded for further proceedings
consistent with this decision.
SO ORDERED.
_/S/ Frederic Block______________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 4, 2025
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