Sanford v. Commissioner

Filing 23

RULING. For the reasons set forth in the attached Ruling, plaintiff's 20 Motion to Reverse the Decision of the Commissioner is GRANTED, to the extent plaintiff seeks a remand for further administrative proceedings, and defendant's 22 Motion to Affirm the Decision of the Commissioner is DENIED. Signed by Judge Sarah A. L. Merriam on 2/4/2019. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
GERALD SANFORD
:
:
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION
:
:
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Civ. No. 3:18CV01019(SALM)

February 4, 2019

RULING ON CROSS MOTIONS
Plaintiff Gerald Sanford (“plaintiff”), brings this appeal
under §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying his application for
Supplemental Security Income (“SSI”) under the Act. Plaintiff
has moved for an order reversing the decision of the
Commissioner. [Doc. #20]. Defendant has filed a cross-motion
seeking an order affirming the decision of the Commissioner.
[Doc. #22].
For the reasons set forth below, defendant’s Motion for an
Order Affirming the Decision of the Commissioner [Doc. #22] is
DENIED, and plaintiff’s Motion for Order Reversing the Decision
of the Commissioner [Doc. #20] is GRANTED, to the extent
plaintiff seeks a remand for further administrative proceedings.

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I.

PROCEDURAL HISTORY1
Plaintiff filed an application for SSI on May 3, 2012,

alleging disability beginning June 17, 2008. See Certified
Transcript of the Administrative Record, Doc. #16-1, compiled on
July 15, 2018, (hereinafter “Tr.”) at 181-89.2 Plaintiff’s
application for SSI was denied initially on June 1, 2012, see
Tr. 109-12, and upon reconsideration on November 20, 2012, see
Tr. 116-18.
Following the denial of plaintiff’s SSI application, on
June 12, 2014, plaintiff, represented by Attorney John P.
Spilka, appeared and testified by video teleconference at a
hearing before Administrative Law Judge Daniel J. Driscoll (“ALJ
Driscoll”). See Tr. 35-72. Vocational Expert (“VE”) Lawrence P.
Takki also testified at the hearing. See Tr. 62-68; see also Tr.
155-57. On July 3, 2014, ALJ Driscoll issued an unfavorable
decision. See Tr. 17-34. On July 30, 2015, the Appeals Council
denied plaintiff’s request for review, thereby making ALJ

Plaintiff filed with his motion the parties’ Joint Statement of
Material Facts. See Doc. #20-2.
1

Plaintiff previously filed an application for SSI on February
14, 2011, alleging a disability onset date of June 17, 2008. See
Tr. 171-80. That application was denied on April 13, 2011. See
Tr. 105-08. Plaintiff did not appeal that denial. Thus, the only
application under consideration is the application dated May 3,
2012.
2

~ 2 ~

Driscoll’s July 3, 2014, decision the then-final decision of the
Commissioner. See Tr. 1-7.
On September 25, 2015, plaintiff, still represented by
Attorney Spilka, filed a complaint in the United States District
Court for the District of Connecticut seeking review of ALJ
Driscoll’s July 3, 2014, decision. See Sanford v. Colvin, No.
3:15CV1412(VLB) (D. Conn. Sept. 25, 2015). On April 18, 2016,
defendant filed a Consent Motion to Remand to Agency Under
Sentence Four of 42 U.S.C. §405(g). See id. at Doc. #15. On
April 20, 2016, Judge Vanessa L. Bryant granted that motion. See
id. at Doc. #16. Following the Court’s remand, on August 3,
2016, the Appeals Council issued a Notice of Order of Appeals
Council Remanding Case to Administrative Law Judge. See Tr. 897902.
Following the Appeals Council’s remand of plaintiff’s case,
on January 23, 2017, plaintiff, again represented by Attorney
Spilka, appeared and testified in person at a second hearing
before a different administrative law judge, Alexander Peter
Borré (hereinafter the “ALJ” or “ALJ Borré”). See Tr. 818-53. VE
Renee Jubry testified at the hearing by telephone. See Tr. 821,
Tr. 844-49; see also Tr. 987-89. On April 24, 2017, ALJ Borré
issued an unfavorable decision. See Tr. 797-817. On April 20,
2018, the Appeals Council denied plaintiff’s request for review,
thereby making ALJ Borré’s April 24, 2017, decision the final
~ 3 ~

decision of the Commissioner. See Tr. 785-90. The case is now
ripe for review under 42 U.S.C. §405(g).
Plaintiff timely filed this action for review. See Doc. #1.
He now moves to reverse the Commissioner’s decision. [Doc. #20].
On appeal, plaintiff argues:
1. The ALJ erred at step two of the sequential evaluation;
2. The ALJ failed to properly weigh the medical opinion
evidence;
3. The ALJ failed to properly assess plaintiff’s subjective
symptoms of pain; and
4. The ALJ’s Residual Functional Capacity (“RFC”)
determination is undermined by his errors in weighing the
opinion evidence and assessing plaintiff’s subjective
complaints.3
See generally Doc. #20-1. As set forth below, the Court finds
that the ALJ erred by placing “great weight” on the opinion of
the state reviewing, non-examining physician, Dr. Heller. See
Tr. 808.
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in

The Court has reordered the sequence in which plaintiff has
presented the arguments in his motion.
3

~ 4 ~

making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation
omitted). Substantial evidence is evidence that a reasonable
mind would accept as adequate to support a conclusion; it is
more than a “mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). The reviewing court’s responsibility is
to ensure that a claim has been fairly evaluated by the ALJ. See
Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation
omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d
Cir. 1999))). “Where there is a reasonable basis for doubt
whether the ALJ applied 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
~ 5 ~

deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alterations added) (citing Treadwell v. Schweiker, 698 F.2d
137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject
the testimony of any witness, but 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, 26061 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, No. 3:13CV00073(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v.
Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D. Ill. Nov. 4,
1994)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
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reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)).
Finally, some of the Regulations cited in this decision,
particularly those applicable to the review of medical source
evidence, were amended effective March 27, 2017. Those “new
regulations apply only to claims filed on or after March 27,
2017.” Smith v. Comm’r, 731 F. App’x 28, 30 n.1 (2d Cir. 2018)
(summary order). Where a plaintiff’s claim for benefits was
filed prior to March 27, 2017, “the Court reviews the ALJ’s
decision under the earlier regulations[.]” Rodriguez v. Colvin,
No. 3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6 (D. Conn. Sept.
4, 2018); White v. Comm’r, No. 17CV4524(JS), 2018 WL 4783974, at
*4 (E.D.N.Y. Sept. 30, 2018) (“While the Act was amended
effective March 27, 2017, the Court reviews the ALJ’s decision
under the earlier regulations because the Plaintiff’s
application was filed before the new regulations went into
effect.” (citation omitted)).

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III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that he is
unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§423(d)(2)(A); 20 C.F.R. §416.920(c) (requiring that the
impairment “significantly limit[] ... physical or mental ability
to do basic work activities” to be considered “severe”
(alterations added)).
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §416.920. In the Second
Circuit, the test is described as follows:

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First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary 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 Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
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
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform

~ 9 ~

given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (alteration added) (citing 68 Fed. Reg. 51155
(Aug. 26, 2003)); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (per curiam)). The RFC is what a person is still capable
of doing despite limitations resulting from her physical and
mental impairments. See 20 C.F.R. §416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that ‘the Social Security Act is a remedial statute to be
broadly construed and liberally applied.’” Id. (quoting Haberman
v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).
IV.

THE ALJ’S DECISION
Following the above-described five-step evaluation process,

ALJ Borré concluded that since the application date of May 3,
2012, through the date of his decision, plaintiff was not
disabled under the Act. See Tr. 801, Tr. 810. At step one, the
ALJ found that plaintiff had not engaged in substantial gainful
activity since May 3, 2012, the application date. See Tr. 803.
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At step two, the ALJ found that plaintiff had the severe
impairments of: “chronic back strain, right shoulder
degenerative joint disease and degenerative joint disease of the
knees bilaterally.” Id. The ALJ found plaintiff also suffered
from the non-severe impairments of “hernia and breathing
difficulty.” Id.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See id. The ALJ specifically considered
listings 1.02 (major dysfunctions of a joint) and 1.04
(disorders of the spine). See Tr. 803-04.
Before moving on to step four, the ALJ found plaintiff
had the RFC
to perform light work as defined in 20 CFR 416.967(b)
except no climbing of ladders, ropes and scaffolds; no
exposure to unprotected heights or other hazards;
occasionally climb ramps and stairs, frequently balance,
occasionally stoop, kneel, crouch and crawl; occasional
overhead reaching bilaterally and frequent fingering and
handling.
Tr. 804 (sic). At step four, the ALJ concluded that plaintiff
was unable to perform his past relevant work as a “roofer.” Tr.
809. At step five, and after considering plaintiff’s age,
education, work experience and RFC, as well as the testimony of
the VE, the ALJ found that other jobs existed in significant

~ 11 ~

numbers in the national economy that plaintiff could perform.
See Tr. 809-10.
V.

DISCUSSION
Plaintiff raises several arguments in support of reversal

or remand, the most compelling of which is that the ALJ erred in
the weight he afforded to the medical opinion evidence.
Plaintiff contends that the ALJ failed to evaluate the
opinions of his treating physician “in accordance with the
applicable law and failed to give sufficient reasons for the
weight accorded to his opinions.” Doc. #20-1 at 3. Part of that
argument asserts that the “ALJ erred in giving significant
weight to Dr. Heller’s opinion that was provided in 2011 for a
prior SSI disability application.” Id. at 6. Defendant responds
that “the ALJ appropriately relied upon the opinion of Dr.
Heller, who reviewed the evidence in the record on March 23,
2011 and provided an assessment that was consistent with
exertionally light work.” Doc. #22-1 at 4.
The ALJ afforded “great weight to the opinion of Dr.
Stephen F. Heller,” a state reviewing, non-examining physician,
who opined in 2011 (in connection with plaintiff’s prior, denied
application) that plaintiff “was able to perform light work with
postural and right overhead reaching limitations.” Tr. 808. In
deciding to afford “great weight” to Dr. Heller’s opinion, the
ALJ reasoned: “Dr. Heller’s opinion is consistent with the
~ 12 ~

positive findings of tenderness in the right shoulder, knees and
low back with pain on range of motion as well as left knee
crepitus on examination. Exhibits 3F, 7F, 12F, 18F. It is also
consistent with the claimant’s level of daily activity as
described above.” Id. By contrast, the ALJ afforded “little
weight” to each of the four opinions authored by plaintiff’s
long-time treating physician, Dr. Richard A. Matza. Tr. 807-08.
A.

Applicable Law

“The SSA recognizes a ‘treating physician’ rule of
deference to the views of the physician who has engaged
in the primary treatment of the claimant,” Green–
Younger, 335 F.3d at 106. According to this rule, the
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.” 20 C.F.R.
§404.1527(d)(2); see, e.g., Green–Younger, 335 F.3d at
106; Shaw, 221 F.3d at 134.
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008); see also 20
C.F.R. §416.927(c).
However, “the opinions even of non-examining sources may
override treating sources’ opinions and be given significant
weight, so long as they are supported by sufficient medical
evidence in the record.” Correale-Englehart v. Astrue, 687 F.
Supp. 2d 396, 427 (S.D.N.Y. 2010); see also Little v. Colvin,
No. 5:14CV63(MAD), 2015 WL 1399586, at *9 (N.D.N.Y. Mar. 26,
2015) (“State agency physicians are qualified as experts in the

~ 13 ~

evaluation of medical issues in disability claims. As such,
their opinions may constitute substantial evidence if they are
consistent with the record as a whole.”).
“[M]edical source opinions that are conclusory, stale, and
based on an incomplete medical record may not be substantial
evidence to support an ALJ finding.” Camille v. Colvin, 104 F.
Supp. 3d 329, 343 (W.D.N.Y. 2015) (citation and internal
quotation marks omitted), aff’d, 652 F. App’x 25 (2d Cir. 2016);
accord Biro v. Comm’r of Soc. Sec., No. 6:17CV06098(EAW), 2018
WL 4666068, at *4 (W.D.N.Y. Sept. 28, 2018). “A medical opinion
may be stale if it does not account for the claimant’s
deteriorating condition. However, a medical opinion is not
necessarily stale simply based on its age. A more dated opinion
may constitute substantial evidence if it is consistent with the
record as a whole notwithstanding its age.” Biro, 2018 WL
4666068, at *4.
B.

Analysis

Dr. Heller opined on March 23, 2011, that plaintiff was
capable of light work. See Tr. 80-82. His opinion states that it
was a “[c]urrent assessment[.]” Tr. 80. As to plaintiff’s
exertional limitations, Dr. Heller found, inter alia, that
plaintiff could stand and/or walk for a total of six hours in an
eight-hour work day and occasionally stoop, kneel, crouch, and
crawl. See Tr. 81. Notably, the medical evidence of record upon
~ 14 ~

which Dr. Heller based his opinion was limited to just two
treatment notes authored by Dr. Matza -- one dated January 5,
2011, and the other dated February 2, 2011. See Tr. 79.4 One
record related to plaintiff’s right shoulder pain; and the
other, to plaintiff’s back strain. See id. Dr. Heller reviewed
no opinion evidence from Dr. Matza, or any other source. See Tr.
74-75, Tr. 78-79. Dr. Heller’s opinion, and the evidence upon
which it was based, predates plaintiff’s current SSI application
by over one year and fails to consider any evidence of record
from 2012 through 2017.
That is significant, particularly because evidence from
that relevant time period demonstrates plaintiff’s knee
impairments, which Dr. Heller did not consider.5 See, e.g., Tr.
582 (October 15, 2013, MRI of the right knee reflecting: “Tear
of the inferior surface of the posterior horn of the medial
meniscus.”); Tr. 1058 (September 22, 2015, MRI of the right knee
reflecting “degenerative changes. Horizontal tear of the

The denial of plaintiff’s prior SSI application states that
three other reports were used to decide plaintiff’s claim. See
Tr. 105. Although the Disability Determination Explanation lists
that same information under “Evidence of Record,” Tr. 74-75, the
“Findings of Fact and Analysis of Evidence” makes specific
reference only to the two treatment notes authored by Dr. Matza.
See Tr. 78-79.
4

The evidence from this time period also reflects plaintiff’s
cervical and low back strains, for which he was being treated by
Dr. Matza. See, e.g., Tr. 573, Tr. 574.
5

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interior surface of the posterior horn of the medial meniscus
with a moderate knee joint effusion.”).
From 2013 to 2016, Dr. Matza saw plaintiff on numerous
occasions to address plaintiff’s complaints of knee pain
(amongst other issues). Dr. Matza’s records from this time
period reflect examinations of plaintiff’s knees, and
plaintiff’s complaints of knee pain related to internal
derangement, arthritis, and meniscal tear(s), for which
plaintiff was prescribed narcotic pain medication. See Tr. 577
(Dr. Matza treatment note dated October 28, 2013: “This patient
is being followed along for right medial meniscal injury[.] ...
He still has pain in his right knee. MRI revealed a undersurface
tear of the posterior horn of the medial meniscus. The patient
has tenderness in the right knee medial joint line and positive
McMurray’s. ... Recommend pain management with Percocet, Valium,
and Xanax.” (sic)); Tr. 578 (Dr. Matza treatment note dated
September 30, 2013: “The patient has tenderness in the right
knee over the medial joint line with a moderate effusion of the
right knee and a positive McMurray.”); Tr. 575 (Dr. Matza
treatment note dated December 23, 2013: “The patient is being
followed along for ... right knee internal derangement. He is
still having pain in his right knee[.]”); Tr. 572 (Dr. Matza
treatment note dated March 24, 2014: “The patient is being
followed along for degenerative arthritis of the left knee. ...
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The patient has tenderness of the left knee, with pain on range
of motion[.] ... Recommend Vicodin ES for pain management.”);
Tr. 1045 (Dr. Matza treatment note dated September 12, 2016:
“The patient has tenderness in the right knee, with pain on
range of motion of the knee, with normal neurovascular
function[.] ... Impression: ... right knee degenerative
arthritis. ... Recommend that we treat with oxycodone, Xanax,
Biofreeze, and weight loss.”) Tr. 1042 (Dr. Matza treatment note
dated December 7, 2016: “This patient is being followed along
for degenerative arthritis of the right knee[.] ... He still has
pain in the right knee[.] ... Recommend use of oxycodone, Xanax,
and Biofreeze.”).
Dr. Heller’s 2011 opinion was based on a dearth of
information which failed to address the totality of plaintiff’s
physical impairments. Thus, because Dr. Heller’s opinion was not
based on a full record -- indeed it failed to consider nearly
five years of medical evidence -- the ALJ should not have relied
heavily on that opinion, and certainly should not have allowed
it to override the opinions of Dr. Matza. See, e.g., Tarsia v.
Astrue, 418 F. App’x 16, 18 (2d Cir. 2011) (“Because it is
unclear whether [the state agency medical consultant] reviewed
all of Tarsia’s relevant medical information, his opinion is not
‘supported by evidence of record’ as required to override the
opinion of [the] treating physician[.]”); Jazina v. Berryhill,
~ 17 ~

No. 3:16CV1470(JAM), 2017 WL 6453400, at *7 (D. Conn. Dec. 13,
2017) (“The ALJ erred in assigning significant weight to the
state agency medical consultants’ under-informed opinions and in
allowing their opinions to override those of plaintiff’s
treating physicians.”); Beutel v. Berryhill, No.
3:17CV1193(SALM), 2018 WL 3218662, at *7 (D. Conn. July 2, 2018)
(“The opinion of the non-examining physician ... was rendered
without the benefit of plaintiff’s missing treatment records. It
was also rendered without the benefit of [the treating source’s]
opinions. Because that opinion was not based on a full record,
the ALJ should not have relied heavily on it.”).
Defendant’s arguments justifying the ALJ’s reliance on Dr.
Heller’s opinion are misplaced. First, defendant submits that
because plaintiff’s 2012 SSI application alleged a disability
onset date of June 17, 2008 (the same alleged in plaintiff’s
prior, denied, application), the ALJ’s reliance on Dr. Heller’s
opinion was appropriate because “he still reviewed evidence that
plaintiff submitted to support his allegation of disability
since June 17, 2008.” Doc. #22-1. That argument fails to account
for the evidence that post-dates Dr. Heller’s opinion. Defendant
also does not consider the explicit findings of the ALJ,
concluding that plaintiff had “not engaged in substantial
gainful activity since May 3, 2012, the application date[.]” Tr.
803 (emphasis added). The ALJ also specifically found that
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plaintiff “has not been under a disability ... since May 3,
2012, the date the application was filed.” Tr. 801 (emphasis
added). The ALJ made no findings as to the time period before
that. Thus, any attempt by defendant to connect plaintiff’s
current application to his previously denied application is
unpersuasive.
Second, defendant asserts that “Dr. Heller’s opinion is in
line with the later opinions of two other State agency
physicians, Dr. Golkar and Dr. Khan, who reviewed the evidence
in the record on May 31, 2012, and November 19, 2012,
respectively, ... and who assessed that plaintiff could do
medium work[.]” Doc. #22-1 at 5. That argument ignores the fact
that much of the evidence of record, and specifically the
evidence relating to plaintiff’s knees, also post-dates those
two opinions. Accordingly, to the extent the opinions of Dr.
Heller, Dr. Golkar, and Dr. Khan are consistent, that is likely
because not one of them considered any evidence after November
19, 2012. See Tr. 86 (Evidence of Record before Dr. Golkar); Tr.
87-88 (Findings of Fact and Analysis of Evidence by Dr. Golkar
summarizing two of Dr. Matza’s treatment records from February
and May 2012 relating to plaintiff’s back pain); Tr. 96-97
(Evidence of Record before Dr. Khan); Tr. 99-100 (Findings of
Fact and Analysis of Evidence by Dr. Khan summarizing two of Dr.
Matza’s treatment records from August and November 2012 relating
~ 19 ~

to plaintiff’s back pain). Notably, the evidence relating to
plaintiff’s knees all dates to after 2013. See discussion of
evidence, supra. Accordingly, the consistency of these opinions
does not support the weight afforded to Dr. Heller’s opinion,
because each state reviewing, non-examining physician failed to
consider roughly five years of evidence, including each of Dr.
Matza’s four opinions. See Tr. 560-63 (Dr. Matza’s May 7, 2013,
Medical Report for Incapacity); Tr. 773-76 (Dr. Matza’s May 30,
2014, Medical Report for Incapacity); Tr. 779-81 (Dr. Matza’s
June 3, 2014, Lumbar Spine Medical Source Statement); Tr. 107578 (Dr. Matza’s January 10, 2017, “Medical Opinion Re: Ability
to Do Work-Related Activities (Physical)” (sic)).
Third, defendant contends that the opinions of Dr. Heller,
Dr. Golkar, and Dr. Khan “are consistent with the treatment
notes in the record from 2010 through 2016[.]” Doc. #22-1 at 7.
The Court cannot reasonably conclude that each of the state
reviewing, non-examining physicians’ opinions would remain
unchanged had each doctor had the benefit of reviewing Dr.
Matza’s later treatment records and four opinions. This is
particularly so with respect to the state reviewing, nonexamining physicians’ opinions as to plaintiff’s ability to
stand and/or walk, stoop, kneel, crouch, and crawl, all of which
are contradicted by Dr. Matza’s opinions. See Tr. 81, Tr. 89-90,
Tr. 101-02. Indeed, in 2017, Dr. Matza (who had been treating
~ 20 ~

plaintiff “monthly since 4/15/09,” see Tr. 779) opined that
plaintiff’s exertional levels were much more restricted. See Tr.
1075-76. He also opined that plaintiff is “unable to crawl,
kneel[.]” Tr. 1076; see also Tr. 779-82 (June 3, 2014, Dr. Matza
Opinion with similar exertional restrictions).
Finally, defendant contends that plaintiff’s activities of
daily living also support the weight afforded to the opinion of
Dr. Heller. See Doc. #22-1 at 8. The ALJ relied on plaintiff’s
“level of daily activity” to support an assignment of “great
weight” to Dr. Heller’s opinion. Tr. 808.6 Specifically,
throughout his decision, the ALJ points to plaintiff’s testimony
that “he is able to help care for his household and his 2 year
old child.” Tr. 807. The ALJ’s reliance on those activities to
support the weight afforded to the opinion of Dr. Heller was
erroneous.
The ALJ’s reliance on plaintiff’s limited childcare
activities fails to recognize the differences between occasional
childcare in a home setting “and performing substantial gainful
employment in the competitive workplace on a ‘regular and
continuing basis,’ i.e., ‘8 hours a day, for 5 days a week, or
an equivalent work schedule[.]’” Harris v. Colvin, 149 F. Supp.
3d 435, 444 (W.D.N.Y. 2016) (quoting SSR 96-8p, 1996 WL 374184,

The ALJ also relied on plaintiff’s levels of daily activity to
discount the opinions of Dr. Matza. See Tr. 807-08.
6

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at *2 (S.S.A. July 2, 1996)). There “is no evidence that
[plaintiff] engaged in any of these activities for sustained
periods comparable to those required to hold [substantial
gainful employment].” Balsamo, 142 F.3d at 81 (alterations
added) (internal quotation marks omitted) (quoting Carroll, 705
F.2d at 643). To the contrary, plaintiff testified that he is
unable to “pick up a child[,]” Tr. 832, and that his older
daughter helps him with the younger children. See Tr. 824.
Plaintiff further testified that his older daughter moved to
Connecticut to help plaintiff care for the youngest child, has
provided “[a] lot of help” with that child, and changes most of
the child’s diapers. Tr. 839; see also Tr. 60.
Even if plaintiff is able to perform some household chores,
“[t]here are critical differences between activities of daily
living (which one can do at his own pace when he is able) and
keeping a full time job.” Moss v. Colvin, No.
1:13CV731(GHW)(MHD), 2014 WL 4631884, at *33 (S.D.N.Y. Sept. 16,
2014). Indeed, plaintiff testified that his older children
perform the majority of the household chores, including:
laundry, vacuuming, outdoor chores, and grocery shopping. See
Tr. 833; see also Tr. 60. Plaintiff testified he is able to do
“[l]ittle bits[]” of cooking and cleaning, like “clean the
counter top.” Tr. 833. That does not support a finding that
plaintiff is able to perform light work.
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Defendant cites to portions of the record which reflect
plaintiff’s activities of daily living that were not explicitly
considered by the ALJ, and which allegedly support a finding
that plaintiff is capable of light work. See Doc. #22-1 at 8.
Defendant asserts:
He went snowmobiling in 2013 (Tr. 407; see Tr. 59, 834).
He went fishing (Tr. 280). He went to church (Tr. 62,
280). He sometimes exercised (Tr. 701, 706-7, 709). He
drove (Tr. 52, 278). He went to drive-in movies (Tr.
62). He traveled by walking (Tr. 278). He took public
transportation (Tr. 825). He took day trips to the
beaches of Rhode Island (Tr. 835). He went out to eat
(Tr. 833). He took care of his own personal grooming
needs (Tr. 274, 276).
Id. “[T]wo sporadic occurrences such as [fishing and
snowmobiling] might indicate merely that [plaintiff] was
partially functional on two days. Disability does not mean that
a claimant must vegetate in a dark room excluded from all forms
of human and social activity.” Smith v. Califano, 637 F.2d 968,
971 (3d Cir. 1981); accord Hilsdorf v. Comm’r of Soc. Sec., 724
F. Supp. 2d 330, 352 (E.D.N.Y. 2010); Kane v. Astrue, No.
11CV6368(MAT), 2012 WL 4510046, at *17 (W.D.N.Y. Sept. 28,
2012). Further, “[i]t is well-settled in the Second Circuit that
the capacity to care for oneself does not, in itself, contradict
a claim of disability as people should not be penalized for
enduring the pain of their disability in order to care for
themselves.” Moss, 2014 WL 4631884, at *33 (citation and
internal quotation marks omitted).
~ 23 ~

Plaintiff testified that he went to church “twice a
month[]” for “[a]bout 45 minutes, an hour.” Tr. 62. Although
plaintiff testified in 2012 that he drove, Tr. 52, at his second
hearing in 2017, he testified that he cannot drive. See Tr. 825.
Similarly, in 2012 plaintiff testified that he went to drive-in
movies. See Tr. 62. However, at his hearing in 2017, plaintiff
testified that he does not go to the movies. See Tr. 833. In
2017, plaintiff also testified that he “like[s] going out to
eat[,]” but did not testify that he does go out to eat, or, if
he does, the frequency with which he does so. Id. Defendant
fails to appreciate that testimony in her brief.
Regardless, defendant essentially suggests that for
plaintiff to be found disabled he must be completely unable to
function. That is not the case. “To receive benefits under the
Social Security Act, one need not be completely helpless or
unable to function[.] The mere fact that he is mobile and able
to engage in some light tasks at his home does not alone
establish that he is able to engage in substantial gainful
activity.” Gold v. Sec’y of Health, Ed. & Welfare, 463 F.2d 38,
41 n.6 (2d Cir. 1972) (citation and internal quotation marks
omitted); accord Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir.
1983). Neither the ALJ, nor defendant, appreciated the
differences between plaintiff’s testimony regarding his daily

~ 24 ~

activities and the ability to sustain substantial employment on
a full-time basis.
For those reasons, the ALJ impermissibly relied on the
opinion of Dr. Heller, a state-reviewing, non-examining
physician, to the exclusion of that of plaintiff’s treating
physician, Dr. Matza. Accordingly, remand is appropriate in
light of the erroneous weight afforded to the stale opinion of
Dr. Heller. In light of this finding, the Court need not reach
the merits of plaintiff’s remaining arguments. On remand the
Commissioner shall address the other claims of error not
discussed herein.
Finally, the Court notes that this will be the second
remand of plaintiff’s case from the District Court. “Sentence
four of 42 U.S.C. §405(g) provides that, after reviewing the
Commissioner’s determination, a court may: ‘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.’” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(quoting Sentence four of 42 U.S.C. §405(g)), as amended on
reh’g in part, 416 F.3d 101 (2005). “Reversal for payment
of benefits is appropriate where the existing record contains
persuasive proof of disability and a remand for further
proceedings would serve no further purpose.” Saxon v. Astrue,
~ 25 ~

781 F. Supp. 2d 92, 106 (N.D.N.Y. 2011) (citation and internal
quotation marks omitted); see also Munford v. Apfel, No.
97CV5270(HB), 1998 WL 684836, at *2 (S.D.N.Y. Sept. 30, 1998)
(“[T]he determination of whether a remand would serve no purpose
is a forward-looking analysis. That is, the district court
evaluates whether it would be pointless to remand a case since
the totality of evidence the ALJ will consider suggests only one
result.”). Here, the Court does not find that reversal for
payment of benefits is appropriate. The Court offers no opinion
on whether the ALJ should or will find plaintiff disabled on
remand. Rather, a remand for further administrative proceedings
is appropriate so that the ALJ may reconsider the weight
afforded to the medical opinion evidence of record.
VI.

CONCLUSION
For the reasons stated, defendant’s Motion for an Order

Affirming the Decision of the Commissioner [Doc. #22] is DENIED,
and plaintiff’s Motion for Order Reversing the Decision of the
Commissioner [Doc. #20] is GRANTED, to the extent plaintiff
seeks a remand for further administrative proceedings.
SO ORDERED at New Haven, Connecticut, this 4th day of
February, 2019.
________/s/_________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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