Dimauro v. Colvin

Filing 16

ORDER granting in part and denying in part 12 Motion for Judgment on the Pleadings; granting in part and denying in part 14 Motion to Affirm the Decision of the Commissioner. Signed by Judge Dominic J. Squatrito on 3/23/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NATALE DIMAURO,
Plaintiff,
v.
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 3:15cv1485 (DJS)

RULING ON THE PLAINTIFF’S MOTION TO REVERSE AND THE DEFENDANT’S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
This is an administrative appeal following the denial of an application filed by the
plaintiff, Natale DiMauro (“DiMauro”), for disability insurance benefits (“DIB”) and
supplemental security income benefits (“SSI”).2 It is brought pursuant to 42 U.S.C. §§ 405 (g)
and 1383 (c)(3).
DiMauro now moves for an order reversing the decision of the Commissioner of the
Social Security Administration (“Commissioner”). In the alternative, DiMauro seeks an order
remanding his case for a rehearing. The Commissioner, in turn, has moved for an order affirming

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore
substituted for Carolyn W. Colvin as the defendant pursuant to Fed. R. Civ. P. 25(d).
2

Under the Social Security Act, the “Commissioner of Social Security is directed to make
findings of fact, and decisions as to the rights of any individual applying for a payment under [the
Act].” 42 U.S.C. § 405(b)(1). The Commissioner’s authority to make such findings and decisions
is delegated to administrative law judges (“ALJs”). See 20 C.F.R. §§ 404.929 et seq. Claimants
can in turn appeal an ALJ’s decision to the Social Security Appeals Council. See 20 C.F.R.
§404.967. If the Appeals Council declines review or affirms the ALJ opinion, the claimant may
appeal to the United States district court. Section 205 (g) of the Social Security Act provides that
“[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405 (g).

her decision.
The issues presented are whether the ALJ: (1) properly weighed the medical opinion
evidence; and (2) properly evaluated DiMauro’s credibility with regard to his symptoms. For the
following reasons, DiMauro’s motion for an order reversing or remanding the Commissioner’s
decision is granted in part and denied in part, and the Commissioner’s motion for an order
affirming her decision is granted in part and denied in part.
FACTS3
DiMauro filed applications for DIB and SSI on November 30, 2013, and December 18,
2013, respectively, for an alleged disability that commenced on August 1, 2013. For purposes of
DIB, DiMauro’s date last insured (“DLI”) is September 30, 2017.4 His applications were denied
both initially and upon reconsideration.
On April 9, 2015, DiMauro appeared with counsel for a hearing before an ALJ. On April
23, 2015, the ALJ issued a decision denying benefits. On August 26, 20156, the appeals council
denied DiMauro’s request for review of that decision, thereby making the ALJ’s decision the
final decision of the Commissioner. This appeal followed.
DiMauro, who was born in 1964, has a high school education. His relevant past work
experience was as a stucco setter helper and a tile setter. According to DiMauro, he had to stop
working in August 2013 because of constant pain in his neck and back due to a pinched nerve.

3

The facts are derived from the joint stipulation of facts filed by the parties, as well as
from medical records, the transcript of the administrative hearing, and the decision of the ALJ.
4

In order to be entitled to disability benefits, a plaintiff must “have enough social security
earnings to be insured for disability, as described in § 404.130.” 20 C.F.R. § 404.315 (a)(1).

Medical Evidence
Middlesex Orthopedic Surgeons
DiMauro was evaluated for lower back and neck pain by Janice Desi, P.A.-C (Certified
Physician Assistant) on January 14, 2013. Although DiMauro indicated that he had intermittent
neck pain, his principal complaint was lower back pain that radiated from his back down both of
his legs into his feet along with numbness and tingling. DiMauro further indicated that increasing
pain was affecting his ability to work. Lumbar radiculopathy5 was diagnosed and Percocet was
prescribed. He was also scheduled for an epidural steroid injection.
DiMauro was seen again by P.A. Desi on three occasions between April and June 2013.
On April 5, 2013, he indicated that he had not gotten the epidural injection because his pain had
improved. He also stated that he had increasing pain in his right elbow and had trouble lifting
objects. He had numbness in his fingers and had been dropping things. At that time he was
diagnosed with resolving lumbar radiculopathy, medial epicondylitis6 right elbow, and ulnar
neuropathy7 right elbow. On May 2, 2013, he was seen for neck pain with limited mobility and

5

Lumbar radiculopathy is defined as “[n]erve irritation caused by damage to the discs
between the vertebrae.” www.medicinenet.com/script/main/art.asp?articlekey=26093 (last visited
March 17, 2017).
6

“Medial epicondylitis, also known as golfer’s elbow, . . . is characterized by pain from
the elbow to the wrist on the inside (medial side) of the elbow. The pain is caused by damage to
the tendons that bend the wrist toward the palm.”
http://www.hopkinsmedicine.org/healthlibrary/conditions/orthopaedic_disorders/medial_epicond
ylitis_golfers_and_baseball_elbow_85,P00928/ (last visited March 17ulnar neuropathyu, 2017).
7

“Ulnar neuropathy, also known as cubital tunnel syndrome, puts pressure on the ulnar
nerve each time the elbow is bent, reducing the supply of blood to the nerve. This causes damage
to the nerve over time.”
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also for pain in his upper back. Cervical spine x-rays revealed mild degenerative disc disease and
a straightening of the cervical curve. On June 28, 2013, DiMauro reported low back and right
elbow pain and indicated that his right elbow pain worsened when he lifted heavy loads at work.
At that visit P.A. Desi diagnosed lumbar radiculopathy and lateral epicondylitis8 of the right
elbow.
Dr. Bruce H. Moeckel (“Dr. Moeckel”), an orthopedic surgeon, saw DiMauro on July 26,
2013 for continued back and right elbow pain. At that time DiMauro reported having difficulties
with day-to-day activities due to pain. Dr. Moeckel’s physical examination found tenderness
across the lower back, pain into the buttocks caused by a straight leg raise, tenderness over the
lateral epicondyle, and pain with resisted wrist extension. Dr. Moeckel administered a cortisone
shot in the right elbow. On August 23, 2013, DiMauro reported significant right elbow pain as
well as pain on the inside of his right arm with numbness and tingling in his right hand. At that
time, Dr. Moeckel diagnosed lumbar radiculopathy, lateral epicondylitis of the right elbow, and
ulnar neuropathy involving the right elbow. Dr. Moeckel stated he was concerned about
DiMauro’s severe elbow and back symptoms and whether he could continue working.
On September 25, 2013, Dr. Moeckel completed a Summary Impairment Questionnaire
concerning DiMauro. Dr. Moeckel indicated diagnoses of lumbar radiculopathy, lateral

http://www.acsneuro.com/conditions_and_treatments/peripheral_nerves_detail/ulnar_neuropathy
(last visited March 17, 2017).
8

Lateral epicondylitis, or tennis elbow, “is a condition in which there is inflammation of
the tendons (tendonitis) attached to the outside, or lateral side, of the elbow at the bony
prominence of the arm bone (humerus).”
http://www.hopkinsmedicine.org/healthlibrary/conditions/adult/orthopaedic_disorders/lateral_epi
condylitis_tennis_elbow_85,p00925/ (last visited March 17, 2017).
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epicondylitis of the right elbow, and ulnar neuropathy. The clinical and laboratory findings cited
by Dr. Moeckel in support of his diagnoses were tenderness across DiMauro’s lower back,
decreased range of motion, and increased pain with range of motion. DiMauro’s primary
symptoms were listed as lower back pain, right elbow pain, and increased pain when attempting
to lift heavy loads. Dr. Moeckel offered his opinion that DiMauro was able to sit less than one
one hour and stand/walk less than one hour in an eight-hour workday. He further opined that it
was medically necessary for Dimauro to elevate both of his legs to waist level at all times when
seated, that DiMauro was incapable of lifting and/or carrying even five pounds, and that he had
significant limitations that allowed only occasional use of his hands/fingers for fine
manipulation. The doctor indicated that DiMauro was likely to be absent from work more than
three times a month as a result of his impairments or treatments. According to Dr. Moeckel,
DiMauro’s limitations applied at least as far back as August 1, 2013.
Dr. Moeckel evalutated DiMauro again on October 4, 2013, at which time DiMauro
indicated that his biggest problem was pain and stiffness in his neck. He also had pain in his
lower back and trouble with day-to-day activities. Dr. Mockel ordered cervical and lumbar MRIs
and continued Percocet at a higher dose. On November 7, 2013, DiMauro reported to Dr.
Moeckel that he continued to have right elbow, neck, and back pain. On that occasion, a steroid
injection was administered to his right elbow and prescribed medications were continued.
On December 27, 2013, the cervical and lumbar MRIs that had been ordered by Dr.
Moeckel were performed. The results of the cervical spine MRI were interpreted as showing mild
degenerative changes of the cervical spine and no abnormal signal in the cervical spinal cord.
The results of the lumbar spine MRI were interpreted as showing stable mild degenerative
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changes of the lumbar spine.
DiMauro was seen by Dr. Moeckel again on January 8, 2014, and February 5, 2014. Dr.
Moeckel continued to feel that DiMauro was disabled. There were no changes made to
prescribed medications. Findings based on the doctor’s physical examination of DiMauro
remained unchanged from previous visits. According to Dr. Moeckel’s February 5, 2014 note,
DiMauro was trying to arrange a cervical epidural steroid injection.
DiMauro saw P.A. Desi on March 6, 2014 for increased pain in his back and down both
legs. He indicated that he had been clearing snow and experienced increased pain in his lower
back and down both legs. He complained of trouble with day-to-day activities and was unable to
lift anything. On March 26, 2014, an epidural steroid injection was administered to DiMauro.
On April 2, 2014, DiMauro reported to Dr. Moeckel that his back pain continued,
although the epidural steroid injection gave him some relief. Dr. Moeckel referred DiMauro for a
second lumbar injection which was administered on April 23, 2014. No significant changes were
noted at subsequent follow-up visits through October 13, 2014.
Dr. Moeckel completed a second Summary Impairment Questionnaire on October 13,
2014. He indicated diagnoses of lumbar radiculopathy, cervical radiculopathy, and status post
shoulder surgery9. Dr. Moeckel listed MRIs of the cervical and lumbar spines as the clinical
findings that supported his diagnoses. DiMauro’s primary symptoms were reported as neck and
back pain. According to Dr. Moeckel, DiMauro was able to sit for up to two hours and
stand/walk for no more than one hour in an eight- hour workday. He could occasionally lift

9

In the Questionnaire, Dr. Moeckel reports that DiMauro had shoulder surgery at an
earlier period of time. This prior surgery was not mentioned in Dr. Moeckel’s first Questionnaire.
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and/or carry up to five pounds, but never more than five pounds. He could only occasionally use
his hands and fingers for fine manipulation. Dr. Moeckel further opined that DiMauro was likely
to be absent from work more than three times per month due to his impairments or treatments.
On January 14, 2015, DiMauro reported that his neck and back pain had worsened.
Physical examination revealed tenderness across the lower back, pain into his buttocks caused by
a straight leg raise, and neck pain radiating into his shoulder blades caused by range of motion of
his neck. At the same time, physical examination also revealed that “upper extremity motor
strength is 5/5, sensation is intact [and] [r]eflexes are symmetric.” (Doc. # 9-8, at 71, p. 435). 10
On April 11, 2015, Dr. Moeckel completed a Disability Impairment Questionnaire in
which he repeated the findings reported in his second Summary Impairment Questionnaire. Dr.
Moeckel again listed MRIs of the cervical and lumbar spines, as well as an x-ray, as the clinical
findings that supported his diagnoses of cervical radiculopathy and lumbar radiculopathy. He also
opined that it was medically necessary for DiMauro to avoid continuous sitting in an eight-hour
workday, and that if seated, he would need to get up and move around every 15-20 minutes for a
period of 15-20 minutes before sitting again. DiMauro could occasionally lift and/or carry up to
ten pounds but never more. He could frequently use his hands and fingers for fine manipulations,
but could only occasionally grasp, turn, and twist objects. According to Dr. Mocekel, DiMauros’s
pain, fatigue, and other symptoms were frequently severe enough to interfere with his attention
and concentration. He would need to take unscheduled rests at unpredictable intervals during an

10

The designation “at 71” refers to the page number (indicated at the top of the page)
assigned by the Court’s electronic filing system within the cited document (in this instance,
document 9-8). The designation “p. 435” refers to the page number (indicated at the bottom of
the page) assigned within the administrative record filed by the Commissioner.
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eight-hour workday for 10-15 minutes each time before returning to work. Dr. Moeckel
estimated that DiMauro was likely to be absent from work two or three times per month as a
result of his impairments or treatment.
Pranav Kapoor, M.D.
Dr. Pranav Kapoor (“Dr. Kapoor”), DiMauro’s primary care physician, first saw DiMauro
on December 10, 2013. At that time Dr. Kapoor diagnosed obesity, elevated blood pressure
without diagnosis of hypertension, and gastroesophageal reflux disease (“GERD”). At a followup visit on January 20, 2014, Dr. Kapoor diagnosed hypertension and chronic back pain.
On January 24, 2014, Dr. Kapoor completed a Mental Impairment Questionnaire at the
request of the Social Security Administration. He diagnosed a prior history of depression and
listed medications that included Escitalopram, which is used to treat anxiety and major
depressive disorder. DiMauro’s mental status was reported as appropriate and normal. According
to Dr. Kapoor, DiMauro had a slight problem using appropriate coping skills to meet the ordinary
demands of a work environment, but had a serious problem performing work activity on a
sustained basis due to his physical limitations from chronic pain.
On March 10, 2014, DiMauro reported to Dr. Kapoor that he had experienced a little
dizziness and shortness of breath. DiMauro expressed his belief that these symptoms were
“secondary to back pain when he was replacing parts on the ventilation unit above his range. He
was twisted in an unusual position and when he stood up straight he began to feel symptoms and
sharp pain.” (Doc. # 9-8, at 51, p. 415). During the period from March 2014 through October
2014 DiMauro saw Dr. Kapoor on three occasions. During these visits DiMauro reported feeling
anxious and depressed. He indicated that he had tried to go back to work but had to stop after
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three weeks due to unbearable pain. Dr. Kapoor diagnosed hypertension, depression, chronic low
back pain, and being overweight. He prescribed medications that included antidepressants.
On February 13, 2015, Dr. Kapoor completed a Disability Impairment Questionnaire. He
indicated diagnoses of GERD, hypertension, depression, impaired fasting glucose (pre-diabetes),
and chronic low back pain. DiMauro’s primary symptoms of depression were listed as poor sleep
and increased stress. According to Dr. Kapoor, DiMauro’s symptoms and limitations applied as
far back as August 1, 2013. Dr. Kapoor stated that he only treated DiMauro for his blood
pressure and impaired fasting glucose and that another doctor treated him for his back pain. He
also indicated that he had not assessed DiMauro’s capacity for work.
In a report dated March 23, 2015, Dr. Kapoor stated that he believed chronic back pain
was the primary basis of DiMauro’s disability. He reported that DiMauro’s hypertension and
GERD were well controlled with medication. Dr. Kapoor also indicated that DiMauro’s
depression had worsened lately and that his medication had been changed to a different antidepressant.
Patrick J. Russolillo, Ph.D.
Dr. Patrick Russolillo (“Dr. Russolillo”), a licensed psychologist, evaluated DiMauro on
March 4, 2014. DiMauro stated that he had no history of mental health issues, but began
experiencing stress three years earlier when he lost his job. At that time, his doctor prescribed an
anti-depressant. DiMauro descibed his problem as a “money depression,” as well as pain and
stress. Dr. Russolillo diagnosed adjustment disorder with mixed anxiety and depressed moodchronic.

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State Agency Physicians
Dr. Robert Mogul (“Dr. Mogul”), a state agency physician, reviewed DiMauro’s claim
file in February 2014 and opined that DiMauro could occasionally lift 50 pounds and frequently
lift 25 pounds, stand and/or walk about six hours in an eight-hour workday, and sit for six hours
in an eight-hour workday. The specific facts upon which Dr. Mogul based his conclusions were
the 2013 MRIs of DiMauro’s cervical and lumbar spine and Dr. Moeckel’s treatment note
regarding DiMauro’s visit on November 7, 2013. The February 11, 2014 disability determination
that included Dr. Mogul’s opinions stated that “[t]here is no indication that there is medical or
other opinion evidence.” (Doc. # 9-4, at 9, p. 99).
A second state agency physician, Dr. Khurshid Khan (“Dr. Khan”), reviewed DiMauro’s
claim file in June 2014. The opinions and conclusions reached by Dr. Khan, as reflected in the
disability determination dated June 16, 2014, are a mirror image of those expressed by Dr. Mogul
in the February 11, 2014 disability determination. As was the case with Dr. Mogul, Dr. Khan
identified the specific facts upon which he based his conclusions as the 2013 MRIs of DiMauro’s
cervical and lumbar spine and Dr. Moeckel’s treatment note regarding DiMauro’s visit on
November 7, 2013. Likewise, the June 16, 2014 disability determination states that “[t]here is no
indication that there is medical or other opinion evidence.” (Doc. # 9-4, at 38, p. 128).
Hearing Testimony
At the April 9, 2015 hearing before the ALJ, DiMauro testified that he had to stop
working as a tile setter in August 2013 because of constant pain in his neck and back due to a
pinched nerve. He stated that he has shooting pain down both legs and into his toes. The pain in
his neck shoots down his left arm and numbs his fingers. He also has issues with pain around his
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right elbow. He can only drive for about 15 minutes and then has to pull over and stretch due to
back pain. He also testified that he had done some light work on a part-time basis in 2014.
Although back surgery has been discussed as a treatment option, DiMauro is afraid to
have surgery, since his orthopedic surgeon told him there was only a 50% chance it would help.
Physical therapy sessions have not helped him. He testified further that he cannot stand for any
period of time because of back pain. Sitting hurts as well, but he can tolerate sitting for anywhere
from 15 minutes to half an hour. He cannot lift much weight due to numbness in his fingers and
grip weakness. He cannot bend, stoop, or crawl due to his back. On his worst days DiMauro
walks with a cane, which helps take some of the pressure off his back.
DiMauro lives in a house with his wife and two children. During the day, he naps,
watches television, walks around the house, and applies ice and heat to his neck and back.
He does no cooking, cleaning, shopping, or yardwork. DiMauro has no hobbies or outside
interests. One of his neighbors stops by almost every day to help with home repairs and take out
the trash. During his testimony, DiMauro had to stand up and stretch.
A vocational expert (“VE”) also testified at the hearing. According to the VE, a
hypothetical individual of DiMauro’s age, education, and work background, who was limited to
work at the light exertional level and who could occasionally balance, stoop, kneel, crouch and
crawl, but must avoid climbing ladders, ropes, and scaffolds and exposure to hazards such as
open moving machinery and vibration, and who could engage in frequent reaching with the right
extremity and frequent fingering and handling bilaterally could not perform DiMauro’s past
work. Such an individual could perform work as an office cleaner, a price marker, and a cafeteria
attendant. If that person was further limited to only occasional reaching with the right dominant
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upper extremity, that person would not be able to perform the three jobs mentioned above, but
could perform the jobs of a parking lot attendant, a self-service gas station attendant, and a
greeter.
The VE also testified that if an individual was: (1) off task 15% of the time, (2) absent
from work two times a month, or (3) limited to only lifting and carrying up to five pounds
occasionally and sitting for a total of only two hours in and eight-hour workday and standing
and/or walking less than one hour in an eight-hour workday, that individual could not perform
any work.
The ALJ’s Decision
In his April 23, 2015 decision, the ALJ found that DiMauro had not engaged in
substantial gainful activity since the alleged onset date of August 1, 2013, and had the following
severe impairments: degenerative disc disease and peripheral neuropathy/epicondylitis. He also
found, however, that DiMauro did not have an impairment that met or equaled the severity
requirements of an impairment listed in the pertinent regulations. The ALJ further determined
that DiMauro had the residual functional capacity to perform light work with specified
limitations and that there were jobs that exist in significant numbers in the national economy that
he could perform. Consequently, the ALJ concluded that DiMauro was not disabled for purposes
of the Social Security Act.
In reaching his decision, the ALJ afforded little weight to the opinions of Dr. Moeckel.
The ALJ found Dr. Moeckel’s opinions to be “not supported with explanation,” “not consistent
with the record as a whole,” or “vague and conclusory.” (Doc. # 9-3, at 33, p. 32). The ALJ gave
“great weight . . . to the June 16, 2014 opinion of Khurshid Kahn [sic], M.D., a Disability
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Determination Services medical consultant, who opined that the claimant could do a range of
medium work within 12 months of onset.” (Doc. # 9-3, at 34, p. 33). The ALJ went on to note
that while DiMauro may not have improved to the extent expected by Dr. Khan, DiMauro’s
“residual functional capacity has been reduced to light [work] to account for the claimant’s
slower than anticipated improvement.” (Id.).
STANDARD
“A district court reviewing a final . . . decision [of the Commissioner of Social Security]
pursuant to section 205 (g) of the Social Security Act, 42 U.S.C. § 405 (g), is performing an
appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). “The findings of
the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are]
conclusive . . . .” 42 U.S.C. § 405 (g). Accordingly, the court may not make a de novo
determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.;
Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 860 (2d Cir. 1990). Rather,
the court’s function is to ascertain whether the Commissioner applied the correct legal principles
in reaching her conclusion, and whether the decision is supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, this court may
not set aside the decision of the Commissioner if it is supported by substantial evidence. Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner’s decision is
supported by substantial evidence and not affected by legal error, that decision will be sustained,
even where there may also be substantial evidence to support the plaintiff’s contrary position.
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
The Second Circuit has defined “substantial evidence” as “‘such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.’” Williams on Behalf of
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). Substantial evidence must be “more than a mere scintilla or a touch of proof
here and there in the record.” Williams, 859 F.2d at 258.
The Social Security Act establishes that benefits are payable to individuals who have a
disability. 42 U.S.C. § 423 (a)(1). “The term ‘disability’ means . . . [an] inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . .” 42 U.S.C. § 423 (d)(1). In order to determine whether a claimant is disabled
within the meaning of the Social Security Act, the ALJ must follow a five-step evaluation
process as promulgated by the Commissioner.11
In order to be considered disabled, an individual’s impairment must be “of such severity
that he is not only unable to do his previous work but cannot . . . engage in any other kind of
substantial gainful work which exists in the national economy . . . .” 42 U.S.C. § 423 (d)(2)(A).
“‘[W]ork which exists in the national economy’ means work which exists in significant numbers

11

The five steps are as follows: (1) The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether
the claimant has a “severe impairment” which limits his mental or physical ability to do basic
work activities; (3) if the claimant has a “severe impairment,” the Commissioner must ask
whether, based solely on the medical evidence, the claimant has an impairment listed in
Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the
Commissioner will automatically consider him disabled, without considering vocational factors
such as age, education, and work experience; (4) if the impairment is not “listed” in the
regulations, the Commissioner then asks whether, despite the claimant’s severe impairment, he
has the residual functional capacity to perform his past work; and (5) if the claimant is unable to
perform his past work, the Commissioner then determines whether there is other work which the
claimant could perform. The Commissioner bears the burden of proof on this last step, while the
claimant has the burden on the first four steps. 20 C.F.R. § 416.920 (a)(4)(i)-(v).
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either in the region where such individual lives or in several regions of the country.” Id.12

DISCUSSION
A. Medical Opinion Evidence
DiMauro argues that the ALJ failed to properly weigh the medical opinion evidence.
Specifically, he contends that the ALJ misapplied the treating physician rule, because “the
opinions from treating orthopedist Dr. Moeckel are based on appropriate clinical and diagnostic
testing and are uncontradicted by other substantial evidence in the record. Therefore, Dr.
Moeckel’s opinions should have been given controlling weight.” (Doc. # 13, at 7).
The Commissioner responds that the ALJ properly evaluated the medical opinion
evidence. Specifically, she argues that “the ALJ fulfilled the Commissioner’s regulatory
responsibility by giving good reason for giving Dr. Moeckel’s assessments little weight.” (Doc. #
14, at 4). These good reasons, according to the Commissioner, were that Dr. Moeckel’s opinions
were “not supported by an explanation and not consistent with the record as a whole.” (Id.).
“[T]he opinion of a claimant’s treating physician as to the nature and severity of the
impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1527(d)(2)). On the other hand, “the opinion of the treating physician is not

12

The determination of whether such work exists in the national economy is made without
regard to: (1) “whether such work exists in the immediate area in which [the claimant] lives”; (2)
“whether a specific job vacancy exists for [the claimant]”; or (3) “whether [the claimant] would
be hired if he applied for work.” 42 U.S.C. § 423 (d)(2)(A).
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afforded controlling weight where . . . the treating physician issued opinions that are not
consistent with other substantial evidence in the record, such as the opinions of other medical
experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). Here there are
opinions of other medical experts, i.e., the state agency physicians, that are not consistent with
Dr. Moeckel’s opinions. For that reason, the Court finds no error in the ALJ’s decision not to
afford controlling weight to Dr. Moeckel’s opinions.
The conclusion that Dr. Moeckel’s opinions were not entitled to controlling weight does
not end the inquiry into the ALJ’s treatment of the medical opinion evidence: “[E]ven if
controlling weight is not given to the opinions of the treating physician, the ALJ may still assign
some weight to those views, and must specifically explain the weight that is actually given to the
opinion.” Shrack v. Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009). “To override the opinion
of the treating physician, we have held that the ALJ must explicitly consider, inter alia: (1) the
frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting
the opinion; (3) the consistency of the opinion with the remaining medical evidence; and, (4)
whether the physician is a specialist.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal
quotation marks and alterations omitted). The governing regulations require the Commissioner to
“always give good reasons in our . . . decision for the weight we give your treating source’s
medical opinion.” 20 C.F.R. § 404.1527 (c)(2). Accordingly, “[t]he failure to provide good
reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand.”
Greek, 802 F.3d at 375 (internal quotation marks omitted).
With regard to the opinion of Dr. Khan, one of the state agency consulting physicians, the
regulations provide as follows with regard to how the medical opinions of nonexamining
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physicians are considered for purposes of determining whether a claimant is disabled:
because nonexamining sources have no examining or treating
relationship with you, the weight we will give their medical opinions
will depend on the degree to which they provide supporting
explanations for their medical opinions. We will evaluate the degree
to which these medical opinions consider all of the pertinent evidence
in your claim, including medical opinions of treating and other
examining sources.
20 C.F.R. § 404.1527 (c)(3).
On the basis of the rationale articulated in the ALJ’s April 23, 2015 decision, the Court
cannot conclude that the ALJ properly evaluated the medical opinion evidence that was before
him. The Court is particularly concerned with the ALJ’s reliance on the opinion of Dr. Khan and
how that reliance affected the decision to give little weight to the opinions of Dr. Moeckel. The
entirety of the ALJ’s discussion of Dr. Khan’s opinion is as follows:
Lastly, great weight is given to the June 16, 2014 opinion of Khurshid
Kahn [sic], M.D., a Disability Determination Services medical
consultant, who opined that the claimant could do a range of
medium work within 12 months of onset. Counsel argued this
opinion was based on anticipated improvement after one year,
which did not occur. The residual functional capacity has been
reduced to light to account for the claimant’s slower than
anticipated improvement.
(Doc. # 9-3, at 34, p. 33). While the ALJ states that he gave great weight to the opinion of Dr.
Khan, he did not indicate any reason why he gave great weight to that opinion. To override the
opinion of a treating physician, the ALJ must consider, among other factors, “whether the
physician is a specialist.” Greek, 802 F.3d at 375. As an orthopedic surgeon, Dr. Moeckel clearly
was a specialist in a field related to the severe impairments the ALJ found applicable to
DiMauro’s applications for benefits. The ALJ’s decision refers to Dr. Khan solely as “a

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Disability Determination Services medical consultant.” (Doc. # 9-3, at 34, p. 33). The Court
recognizes that state agency medical consultants are considered to be “highly qualified and
experts in Social Security disability evaluation.” 20 C.F.R. § 404.1513a (b)(1). At the same time,
however, the parties’ joint stipulation of facts refers to Dr. Khan as a pulmonologist13, which is a
specialty field not related to DiMauro’s severe impairments of degenerative disc disease and
peripheral neuropathy/epicondylitis. In light of these facts, the Court currently is unable to
conclude that the ALJ explicitly considered all of the factors enumerated in Greek in connection
with his determination to give little weight to the opinions of Dr. Moeckel.
The weight given to the opinion of a nonexamining source, such as Dr. Khan, depends in
part on “the degree to which these medical opinions consider all of the pertinent evidence in your
claim, including medical opinions of treating and other sources.” 20 C.F.R. § 404.1527 (c)(3). As
previously noted, Dr. Khan’s June 2014 opinions and conclusions are a mirror image of those
expressed by Dr. Mogul in February 2014. Both state agency physicians identified the 2013
MRIs of DiMauro’s cervical and lumbar spine and Dr. Moeckel’s treatment note regarding
DiMauro’s visit on November 7, 2013 as the specific facts upon which they based their
conclusions. These three pieces of evidence do not constitute all of the pertinent evidence
regarding DiMauro’s claim. Additionally, both the February 2014 and June 2014 disability
determination reports stated that “[t]here is no indication that there is medical or other opinion
evidence.” (Doc. # 9-4, at 9, p. 99, and at 38, p. 128). Dr. Moeckel completed his initial
Summary Impairment Questionnaire concerning DiMauro on September 25, 2013, well before
13

“Pulmonology is an area of medicine that focuses on the health of the respiratory
system.” http://www.healthline.com/health/what-is-a-pulmonologist#Overview1 (last visited
March 17 2017).
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Dr. Khan offered his opinion in June 2014. Dr. Moeckel’s September 25, 2013 Questionnaire
included medical opinions of a treating source which were not considered by Dr. Khan. Under
these circumstances, the Court must conclude that the ALJ failed “to provide good reasons for
not crediting the opinion of a claimant’s treating physician,” which “is a ground for remand.”
Greek, 802 F.3d at 375.
Because the Court cannot conclude that the ALJ properly evaluated the medical opinion
evidence that was before him, this matter must be remanded so that the ALJ may apply explicitly
the factors enumerated in Greek and, should the ALJ decide not to credit the opinions of Dr.
Moeckel, provide the required good reasons for not crediting those opinions.
B. Credibility - Pain Symptoms
DiMauro also argues that the ALJ failed to properly evaluate his credibility. Specifically,
he contends that the ALJ’s credibility determination “is not supported by substantial evidence.”
(Doc. # 13, at 9). The Commissioner responds that the ALJ’s finding with respect to DiMauro’s
credibility was proper and is supported by substantial evidence in the record.
In evaluating a claimant’s subjective complaints of symptoms and the limiting effects of
those symptoms, the ALJ must engage in a two-step process:
At the first step, the ALJ must decide whether the claimant
suffers from a medically determinable impairment that could
reasonably be expected to produce the symptoms alleged. . . .
If the claimant does suffer from such an impairment, at the
second step, the ALJ must consider the extent to which
the claimant’s symptoms can reasonably be accepted as
consistent with the objective medical evidence and other
evidence of record. The ALJ must consider statements the
claimant or others make about his impairments, his
restrictions, his daily activities, his efforts to work, or
any other relevant statements he makes to medical
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sources during the course of examination or treatment, or
to the agency during interviews, on applications, in letters,
and in testimony in its administrative proceedings.
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks, citations and
alterations omitted).
The ALJ “is not required to accept the claimant’s subjective complaints without question;
he may exercise discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.” Id. At the same time, however, “[a] finding that the witness is not
credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary
review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988).
With regard to the first step, the ALJ found that “the claimant’s medically determinable
impairment could reasonably be expected to cause the alleged symptoms . . . .” (Doc. # 9-3, at
30, p. 29). As to the second step, however, he found that “the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.” (Id.). The ALJ further explained his reasoning regarding
DiMauro’s credibility as follows:
The claimant’s alleged degree of pain and functional limitation
are disproportionate to the objective medical evidence. The
claimant has denied performing essentially all activities, yet
he was able to work part-time in a lighter position. Moreover,
the claimant testified to doing nothing around his house. When
questioned about the March 10, 2014 note of Dr. Kapoor’s that
he injured his back replacing parts on the ventilation unit above
the range, the claimant testified that a neighbor actually did the
repairs and he just watched; however, the claimant’s allegation
is not supported by the detailed account contained in Dr. Kapoor’s
treatment notes that the claimant was twisting in an unusual
position and began to feel sharp pain when he stood up straight.
Additional evidence that the claimant has a greater functional
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capacity than alleged is the March 6, 2014 treatment report that
the claimant alleged experiencing increased pain after clearing
snow.
(Id. at 33, p. 32).
While evidence of DiMauro’s part-time work and other activities may not foreclose the
possibility of his being disabled under the Social Security laws, such evidence can be considered
for purposes of assessing his credibility. See Durante v. Colvin, Civ. No. 3:13CV1298 (HBF),
2014 U.S. Dist. LEXIS 142053, at *52 (D. Conn. Aug. 6, 2014) (internal quotation marks
omitted) (“an ALJ’s consideration of a claimant’s part-time work is entirely proper and may
support an ALJ’s decision to discount a claimant’s credibility”). “Similarly, a claimant’s daily
activities are properly considered when evaluating credibility.” Id. at *54.
DiMauro also argues that the ALJ’s credibility determination is not supported by
substantial evidence because the ALJ improperly substituted his lay interpretation of DiMauro’s
MRIs for that of his treating physician Dr. Moeckel. The Commissioner responds that the ALJ
did not substitute his judgment for that of Dr. Moeckel, but instead relied upon the judgment of
the state agency physician Dr. Khan. The Court has already addressed the issues it finds with the
ALJ’s reliance on Dr. Khan’s opinion. With respect to the MRIs, however, the Court finds that
the ALJ’s decision merely reflects the impressions of the physician who interpreted the MRIs
that were ordered by Dr. Moeckel. As to the cervical spine MRI the doctor’s impression was
“[m]ild degenerative changes of the cervical spine . . . .” (Doc. # 9-8, at 13, p. 377). As to the
lumbar spine, the doctor’s impression was “[s]table mild degenerative changes of the lumbar
spine.” (Id. at 15, p. 379). The recitation of those impressions by the ALJ does not suggest that he
erred in his assessment of DiMauro’s credibility
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The Court finds that the ALJ did properly evaluate DiMauro’s credibility. As noted
earlier in this ruling, in the absence of legal error, this Court may not set aside the decision of the
Commissioner if it is supported by substantial evidence. With specific reference to credibility
determinations, the Second Circuit has stated that “[c]redibility findings of an ALJ are entitled to
great deference and therefore can be reversed only if they are patently unreasonable.” Pietrunti v.
Director, Office of Workers’ Compensation Programs, 119 F.3d 1035, 1042 (2d Cir. 1997)
(internal quotation marks omitted). In light of the evidence that was before the ALJ, the Court
cannot say that his findings as to DiMauro’s credibility are patently unreasonable. Consequently,
this Court must defer to those findings and conclude that the ALJ’s credibility determination is
supported by substantial evidence. Therefore, DiMauro’s motion to reverse on this ground is
denied and the Commissioner’s motion to affirm on this ground is granted.

CONCLUSION
For the reasons stated above, DiMauro’s motion to reverse or remand (doc. # 12) is
GRANTED in part and DENIED in part and the Commissioner’s motion to affirm (doc. # 14)
is GRANTED in part and DENIED in part.
This matter is remanded to the Commissioner for further proceedings consistent with this
decision.

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The Clerk is directed to enter judgment and close this case.

SO ORDERED this 23rd

day of March, 2017.

/s/ DJS
Dominic J. Squatrito
United States District Judge

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