Ross v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
THOMAS R.,
Plaintiff,
v. 	6:24-CV-01226
(LEK/DJS)
FRANK BISIGNANO, Acting Commissioner of
Social Security,
Defendant.
____________________________________
APPEARANCES: 	OF COUNSEL:
HILLER COMERFORD INJURY & 	JUSTIN M. GOLDSTEIN,
DISABILITY LAW 	ESQ.
Attorney for Plaintiff
6000 North Bailey Avenue - Suite 1a
Amherst, New York 14226
U.S. SOCIAL SECURITY ADMIN. 	CANDACE BROWN CASEY,
OFFICE OF REG’L GEN. COUNSEL 	ESQ.
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER1
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a
decision by the Commissioner of Social Security that Plaintiff was not disabled. 	Dkt.
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(e).
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No. 1. Currently before the Court are Plaintiff’s Motion for Judgment on the Pleadings
and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 11, 15, & 16. For
the reasons set forth below, it is recommended that Plaintiff’s Motion for Judgment on
the Pleadings be granted, and Defendant’s Motion for Judgment on the Pleadings be
denied. 	The Court, therefore, recommends that the matter be remanded for further
proceedings.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born in 1969. Dkt. No. 8, Admin. Tr. (“Tr.”) at p. 206. He has a
tenth-grade education. 	Tr. at pp. 35-36. 	He has past work experience as a delivery
driver, handyman, concrete truck driver, and order filler. Tr. at pp. 36, 38, 40, & 211.
Plaintiff alleges disability based upon degenerative disc disease of the lumbar spine with
radiculopathy, deep venous thrombosis, and saddle pulmonary embolism. Tr. at pp. 58
& 210.
B. Procedural History
Plaintiff applied for disability and disability insurance benefits on May 10, 2022.
Tr. at p. 56. He alleged a disability onset date of March 17, 2022. Tr. at p. 56. Plaintiff’s
application was initially denied on January 4, 2023. Tr. at p. 84. Reconsideration was
denied on April 27, 2023, Tr. at pp. 97-104, after which Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), Tr. at pp. 105-106. Plaintiff appeared at
a hearing before ALJ Kenneth Theurer on March 7, 2024, at which Plaintiff and a
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vocational expert testified. 	Tr. at pp. 30-55. 	On March 19, 2024, the ALJ issued a
written decision finding Plaintiff was not disabled. Tr. at pp. 16-25. On August 9, 2024,
the Appeals Council denied Plaintiff’s request for review, thereby making the ALJ’s
decision the final decision of the Commissioner. Tr. at pp. 1-7.
C. The ALJ’s Decision
In his decision, the ALJ made the following findings of fact and conclusions of
law. First, the ALJ found that Plaintiff met the insured status requirements of the Social
Security Act on September 30, 2023. Tr. at p. 18. Second, the ALJ found that Plaintiff
did not engage in substantial gainful activity during the period from his alleged onset
date of March 17, 2022, through his date last insured of September 30, 2023. Id. Third,
the ALJ found that, through the date last insured, Plaintiff had the following severe
impairments: 	deep 	venous 	thrombosis, 	saddle 	pulmonary 	embolism, 	hernia, 	and
degenerative disc disease of the lumbar spine. Id. Fourth, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, App.
1 (the “Listings”). 	Tr. at p. 19. 	The ALJ then found that Plaintiff had the residual
functional capacity to perform less than the full range of light work, and more
specifically:
he could occasionally lift and carry twenty pounds, frequently lift
and carry ten pounds, sit for up to six hours, and stand or walk for
approximately six hours in an eight-hour day with normal breaks.
He could occasionally climb ramps or stairs; never climb ladders,
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ropes or scaffolds; and occasionally balance, stoop, kneel, crouch,
and crawl.
Id.
The ALJ then found that Plaintiff was unable to perform his past relevant work.
Tr. at p. 23. Next, the ALJ found that transferability of job skills was “not material to
the determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the [Plaintiff] is ‘not disabled,’ whether or not the
[Plaintiff] has transferable job skills.” Tr. at p. 24. The ALJ then determined that, based
on Plaintiff’s age, education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national economy that Plaintiff could
have performed. Tr. at pp. 24-25. The ALJ, therefore, concluded that Plaintiff was not
under a disability at any time from March 17, 2022, the alleged onset date, through
September 30, 2023, the date last insured. Tr. at p. 25.
II. RELEVANT LEGAL STANDARDS
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. 	42 U.S.C. § 405(g); Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). 	Rather, the Commissioner’s
determination will be reversed only if the correct legal standards were not applied, or it
was not supported by substantial evidence. 	See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied
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correct legal principles, application of the substantial evidence standard to uphold a
finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). 	“Substantial evidence” is evidence that
amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than
one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford
v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that
the court’s independent analysis of the evidence may differ from the [Commissioner’s].”
Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner’s determination considerable deference, and may not
substitute “its own judgment for that of the [Commissioner], even if it might justifiably
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have reached a different result upon a de novo review.” 	Valente v. Sec’y of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
404.1520, 416.920. 	The Supreme Court has recognized the validity of this sequential
evaluation process. 	Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). 	The five-step
process is as follows:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. 	If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his 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
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
has the residual functional capacity to perform his past work. Finally, if
the claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant could perform.
Under the cases previously discussed, the claimant bears the burden of the
proof as to the first four steps, while the [Commissioner] must prove the
final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758
F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can
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be made, the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S.
20, 24 (2003).
III. ANALYSIS
Plaintiff raises two claims of error for review in this proceeding. First, Plaintiff
claims that the ALJ erred in his evaluation of the opinions of Doctors Distefano, Kircher,
and Qandah and Physician Assistant Carangelo by failing to articulate the evidence in
relation to the supportability and consistency factors and by failing to accurately
describe Plaintiff’s work requirements following his injury. Dkt. No. 11, Pl.’s Mem. of
Law at pp. 10-21. Second, Plaintiff claims that the ALJ erred by failing to evaluate the
medical 	opinions 	and 	prior 	administrative 	medical 	findings 	pursuant 	to 	revised
regulations. 	Id. at pp. 21-24. 	Defendant responds that the ALJ properly analyzed
Plaintiff’s disability claim and that the ALJ’s findings are supported by substantial
evidence. Dkt. No. 15, Def.’s Mem. of Law at pp. 5-16.
With regard to the opinions of Doctors Distefano, Kircher, and Qandah and
Physician Assistant Carangelo, the ALJ found these opinions less persuasive because
they were issued in 2020 or 2021 and thus were rendered prior to the alleged onset date
of May 17, 2022, and were not supported by examination findings since the alleged
onset date. 	Tr. at pp. 22-23. 	Additionally, the ALJ found these opinions inconsistent
with other evidence in the record since the alleged onset date, including the objective
medical evidence, as well as Plaintiff’s negative clinical findings and limited treatment
history. Id.
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Initially, the Court recognizes that, in determining whether the opinions of
Doctors 	Distefano, 	Kircher, 	and 	Qandah 	and 	Physician 	Assistant 	Carangelo 	are
persuasive, it would be acceptable for the ALJ to consider whether or not these opinions
were rendered before the alleged onset date, as “[m]edical evidence that predates the
alleged disability onset date is ordinarily not relevant to evaluating a claimant’s
disability.” Melissa R. v. Comm’r of Soc. Sec., 2021 WL 4844153, at *4 (N.D.N.Y. Oct.
18, 2021). Additionally, it would be reasonable for the ALJ to consider whether these
opinions are supported by examination findings since the alleged onset date and
consistent with other evidence in the record since the alleged onset date. 	See, e.g.,
Adams v. Saul, 2020 WL 1526918, at *7 (W.D.N.Y. Mar. 31, 2020) (“[T]he subsequent
medical evidence in the record . . . does not support the finding of a marked limitation
in any . . . exertional requirements.”).
Significantly, however, the ALJ noted that, after Doctors Distefano, Kircher, and
Qandah and Physician Assistant Carangelo rendered their opinions in 2020 and 2021,
Plaintiff “was able to perform heavy work” and, in doing so, the ALJ misstated the
record. Tr. at p. 23. More specifically, the ALJ stated that Plaintiff “worked for Tractor
Supply” “[f]rom April 2021 to March 2022” and “testified that his work for Tractor
Supply required lifting 75 to 100 pounds.” Id. Instead, the record reflects that Plaintiff
began working for Tractor Supply in 2018 and that, while Plaintiff’s job duties originally
required working on his feet and lifting between 75 to 100 pounds, following Plaintiff’s
alleged injury in 2020, Plaintiff was put on “light duty.” 	Tr. at pp. 39-45 & 196-99.
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Further, Plaintiff testified that “light duty” consisted of him “watching people work”
and “making sure the lines didn’t get clogged” while “sit[ting] in the chair,” and Plaintiff
confirmed that he did not do any lifting in this role. Tr. at pp. 44-45.
Where an 	ALJ 	mischaracterizes 	testimony, such 	mischaracterizations may
“render[] the ALJ’s conclusions . . . unsupported by substantial evidence,” thereby
warranting remand. Joyner v. Comm’r of Soc. Sec., 2009 WL 5214949, at *6 (N.D.N.Y.
Dec. 28, 2009); see also Lloyd v. Comm’r of Soc. Sec., 335 F. Supp. 3d 472, 479
(W.D.N.Y. 2018) (holding that an ALJ’s mischaracterization of testimony in the record
is 	“improper 	and 	cannot 	constitute 	a 	good 	reason 	for 	rejecting 	the 	opinion 	of
a . . . physician”). For example, in Joyner v. Comm’r of Soc. Sec., the court held that it
was reversible error for the ALJ to state in his decision “that [p]laintiff could lift 20
pounds with his left arm and up to 20 pounds with his right arm before his shoulder
hurts” where the plaintiff “actually testified that he d[id] not lift heavy things.” 	2009
WL 5214949, at *4 (emphasis added). 	Similarly, in Lugo v. Chater, the court reversed,
remanded, and held that “[t]he ALJ erred . . . by mischaracterizing [plaintiff’s] own
testimony” where the ALJ stated that the plaintiff “does housework and uses public
transportation” as a basis to bolster the ALJ’s skepticism about plaintiff’s reports of pain
and this statement was “simply wrong” because plaintiff “testified that he did not do
housework and was unable to take public transportation by himself because of his
vision.” 932 F.Supp. 497, 503 (S.D.N.Y.1996) (emphasis in original).
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Here, like in Joyner and Lugo, in stating that Plaintiff “was able to perform heavy
work” “after the . . . 2020 and 2021 opinions were rendered,” Tr. at p. 23, the ALJ
misstated the record because Plaintiff testified that, while his job duties at Tractor
Supply originally required working on his feet and lifting between 75 to 100 pounds,
following his alleged injury in 2020, he was put on “light duty” and did not do any
lifting. Tr. at pp. 23 & 39-45. Furthermore, the ALJ appears to have improperly relied
on his misunderstanding of the record to discredit the opinions of Doctors Distefano,
Kircher, and Qandah and Physician Assistant Carangelo. Tr. at pp. 22-23 (“I also note
that after the above 2020 and 2021 opinions were rendered, the claimant was able to
perform heavy work.”).
Defendant asserts that “the ALJ’s misstatement about the exertional level of
Plaintiff’s work activity prior to the alleged onset date is not a reason for remand”
because the medical opinions of Doctors Distefano, Kircher, and Qandah and Physician
Assistant Carangelo “had little probative value” and “the ALJ otherwise provided
sufficient reasons for finding these medical opinions unpersuasive or less persuasive.”
Def.’s Mem. of Law at p. 15. 	However, because “[t]he ALJ did not provide a logical
bridge between the evidence and [his] conclusions,” the Court is “unable to fathom the
ALJ’s rationale in relation to the evidence in the record.” Dezarea W. v. Comm’r of Soc.
Sec., 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (citations and quotations
omitted) (cleaned up). 	Instead, the ALJ’s opinion “requires the [C]ourt to guess,”
Rebecca S. v. O’Malley, 2024 WL 3298956, at *5 (N.D.N.Y. Apr. 15, 2024), report and
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recommendation adopted sub nom. Rebecca S. v. Comm’r of Soc. Sec., 2024 WL
2889127 	(N.D.N.Y. 	June 	10, 	2024), 	how 	heavily 	the 	ALJ 	relied 	on 	his
mischaracterization of Plaintiff’s work requirements to discredit the opinions of Doctors
Distefano, Kircher, and Qandah and Physician Assistant Carangelo. “This Court cannot
determine whether a proper analysis would have altered [the] ALJ[’s] conclusion.” Id.
(citations omitted). As such, the ALJ’s error is not harmless, and remand is warranted
so that the ALJ can provide “further findings or a clearer explanation for the decision”
that “articulate[s] how [the ALJ] relied on or rejected [the] evidence, and how [he]
reached [the] determination.” Dezarea W. v. Comm’r of Soc. Sec., 2023 WL 2552452,
at *1 (citations and quotations omitted).
Accordingly, 	the 	Court 	recommends 	that 	the 	matter 	be 	remanded 	for
reconsideration and further explanation of the ALJ’s evaluation of the opinions of
Doctors Distefano, Kircher, and Qandah and Physician Assistant Carangelo in light of
the record evidence.
IV. CONCLUSION
ACCORDINGLY, it is
RECOMMENDED, that Plaintiff’s Motion for Judgment on the Pleadings be
GRANTED; and it is further
RECOMMENDED, that Defendant’s Motion for Judgment on the Pleadings be
DENIED; and it is further
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RECOMMENDED, 	that 	Defendant’s 	decision 	denying 	Plaintiff 	disability
benefits be REMANDED pursuant to sentence four; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Report-
Recommendation and Order on the parties.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within
which to file written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court . FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED . R. CIV . P. 72
& 6(a).
Dated: October 29, 2025
Albany, New York
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