Azeez v. Commissioner of Social Security
MEMORANDUM AND ORDER. For the reasons enumerated in the attached document, Plaintiff's and Defendant's motions for judgment on the pleadings are denied and the matter is reversed and remanded to the Commissioner for further proceedings consistent with this opinion. The Commissioner is directed to commence proceedings within 60 days of this Memorandum and Order. So Ordered by Judge Sandra L. Townes on 3/20/2012. (Manuel, Germaine)
IN CLERK'S OFFICe
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
* MAR2l2012 *
MEMORANDUM and ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security,
TOWNES, United States District Judge:
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act.
Defendant, the Commissioner of Social Security (the "Commissioner"), moves for judgment on
the pleadings pursuant to Fed. R. Civ. P. 12(c). Plaintiff, Bibi Azeez ("Azeez" "Plaintiff' or
"Claimant"), represented by counsel, cross-moves for judgment on the pleadings. For the
reasons detailed below, both motions are denied and the case is remanded for further
administrative proceedings consistent with this Memorandum and Order.
Azeez filed an application for disability insurance benefits on June 16, 2000 claiming an
inability to work, primarily due to neck and back pain, since April 20, 1999. (Tr. 77-79,82) 1
The application was denied. (Tr. 50-53, 57-59.) Plaintiff requested a hearing before an
Administrative Law Judge ("ALl") and appeared, with counsel, before ALl Seymour Fier on
May 22,2001. (Tr. 60-61, 503-39). ALl Fier issued a decision on June 28, 2001 finding that
Plaintiff was not disabled. (Tr. 39-49). On May 15, 2003, the Appeals Council vacated ALl
Pier's decision and remanded the case for further proceedings. (Tr. 72-74, 390A-C.)
Citations to the administrative record are in the form "Tr. _".
On February 4, 2004, ALl Fier conducted another hearing and, on March 4, 2004, he
denied Plaintiff's claim. (Tr. 391-401, 472-502). On review, again the Appeals Council vacated
the ALl's decision and remanded the case as of August 27, 2004. (Tr. 403-6.) The matter went
to a new ALl, and on November 2, 2005, ALl Manuel Confresi held another hearing. (Tr. 42971.) ALJ Confresi denied the claim in his decision issued on December 16, 2005, and the
Appeals Council denied Plaintiffs request for review on April 28, 2006. (Tr. 2-4).
Plaintiff appealed to the Federal District Court, but the parties stipulated to remand
pursuant to the fourth sentence of 42 U.S.C. § 405(g). (See Tr. 587.) On January 24, 2007, the
District Court remanded the case for further administrative proceedings. (Tr. 586-88.) The
Appeals Council remanded the case to ALJ Confresi on April10, 2007. (Tr. 584-85.) ALl
Confresi held an additional hearing on March I 0, 2008, issuing another unfavorable decision on
May 20, 2008. (Tr. 545-66, 596-620.) After the Appeals Council denied Plaintiffs request for
review on September 5, 2009, the decision became final and Plaintiff filed the present action in
this Court. (Tr. 540-42.)
Factual & Medical Background 2
Plaintiff was born in Guyana in March of 1961 and completed the twelfth grade. (Tr. 77,
88, 433-34, 474-76, 507.) She immigrated to the United States and is an American citizen. (Tr.
474-75). She worked as a bank teller for approximately ten years (Tr. 83, 434, 435), which
required her to sit up to 6 hours a day, five days per week (Tr. 83, 446), and lift as many as
twenty to thirty pounds five to ten times each day (Tr. 446). Prior to her position as a bank teller,
This decision provides only a brief summary of the medical evidence. The Commissioner provides a very detailed
summary of the medical evidence in the Memorandum of Law in Support of Defendant's Motion for Judgment on
the Pleadings ("Def. Mem. ofL.") at 5-28. In Plaintiffs Memorandum of Law in Support of Plaintiffs CrossMotion for Judgment on the Pleadings ("Pl. Mem. ofL.") at 2, fu. I, Plaintiff also relies on Commissioner's
summary of the "voluminous medical evidence."
Plaintiff worked as a cashier in a department store, which required her to stand during the work
day. (Tr. 83,435,447, 476.)
Plaintiff stopped working on Apri120, 1999, complaining that neck, back, shoulder, joint
pain and dizziness made her unable to work. (Tr. 82.) Plaintiff reported that her husband does
the grocery shopping and cooking for the family, although she can sometimes do light cooking
and light household chores. (Tr. 103,440, 482.) Plaintiff states that she spends her days under
bed rest, watching television, listening to music, performing her physical therapy exercises and
praying. (Tr. 103.)
Dr. Mehri Songhorian has been Plaintiffs treating neurologist since April 1999. (Tr.
243, 243C.) On May 27, 2003, Dr. Songhorian diagnosed Plaintiff with severe myelopathy,
cervical herniated disc, severe migraine headaches and dizziness. (Tr. 243C.) Her opinion was
that Plaintiff was "100% disabled." (!d) Dr. Songhorian repeatedly indicated that Plaintiff was
disabled, specifically determining Plaintiff could not carry or lift more than two pounds and
never up to five pounds. (Tr. 244-47, 279.) Further, Plaintiff could not walk more than two
blocks, nor sit, stand, or walk more than I hour in an eight-hour day, and was unable push and
pull arm controls, bend, climb or reach. (!d.) On the Cervical Spine Residual Functional
Capacity Questionnaire, Dr. Songhorian wrote that Plaintiff could sit for 5 minutes at a time,
stand for I 0 minutes at a time and sit, stand, and walk for less than two hours total in an eighthour day. (Tr. 379-80.) The doctor further noted that Plaintiff was unable to carry any weight.
An April27, 1999 CT-scan of Plaintiffs cervical spine showed posterior endplate
osteophyte formation to the right of the midline, causing crowding of the left lateral recess and
an extradural defect at C3-4, a broad-based posterior endplate osteophyte formation causing a
midline extradural defect and crowding of the lateral recesses at C4-5, and a left paramedial disc
herniation associated with endplate osteophyte formation causing a left-sided extradural defect
and crowding of the left lateral recess at C5-6. (Tr. 199-200, 296-97.) At C6-7 the CT-scan
indicated a 3-4mm. left-sided disc herniation causing spinal cord contact. (Id) On August 22,
2000, another CT-scan of the cervical spine showed disc protrusion with spondylitic ridge
formation at C3-4 through C6-7. (Tr. 249.)
Plaintiff had several MRis ofthe cervical spine. A May 5, 1999 MRI showed ventral
osteophyte ridges at C3-4 and to the left at C5-6 and C6-7 causing cord compression. (Tr. 194.)
The MRI also revealed osteophytic neural foramina! narrowing at C3-C4, C4-C5, and C5-C6.
(!d.) Dr. Fred Nobandegani, a neurosurgeon, examined Plaintiff and, in response to the May
1999 MRI, recommended surgical decompression and bone fusion. (Tr. 185.) Dr. Robert B.
Snow, also a neurosurgeon, conducted a neurological consultation. (Tr. 120.) His impression
was cervical radiculopathy which seemed to be improving and, therefore, did not recommend
surgery, but conservative management. (Id) Dr. Robert E. Decker, another neurosurgeon,
reviewed the CT-scan and MRI and expressed that he was "rather surprised" that Plaintiff did not
have significant radicular symptoms on the left. (Tr. 121.) Dr. Decker said there was spinal cord
compression and recommended that Plaintiff have surgery at some point. (Tr. 122.).
A November 16, 1999 MRI showed straightening of normal lordosis compatible with
muscle spasm. (Tr. 192.) The MRI further indicated a large disc-osteophyte complex at C3-4
with a new, right paramedian component and right neural foramina! narrowing, a new discosteophyte complex at C4-5, and left paramedian disc-osteophyte complexes at C5-6 and C6-7.
(!d.) Dr. Nobandegani conducted another examination on November 23, I 999 and opined that
the MRI did not reveal significant changes from the May I 999 MRI and, based on that stability
and lack of neurological deficits, Dr. Nobandegani concluded that surgery was not then
necessary but would likely become necessary in the future. (Tr. 310.) On July 28,2000, Dr.
Kyung Seo, a consulting orthopedist, examined Plaintiff. (Tr. 21 1-12.) After the examination,
Dr. Seo concluded that Plaintiffs "[f]unctionality, due to aching back and neck pain, presently,
sitting, standing, bending, lifting and carrying heavy objects is slightly limited." (Tr. 212.)
An August 12, 2002 MRI of Plaintiffs cervical spine, indicated a moderate-sized
disc/ridge complex and flattening of the anterior aspect of the cervical cord with right foramina!
narrowing at C3-4. (Tr. 293.) At C4-5, there was a mild diffuse disc/ridge complex effacing the
anterior subarachnoid space without cord compression. (!d.) At CS-6, there was a mild
disc/ridge complex with left foramina! narrowing and no cord compression. At C6-7, there was
a left paracentral disc herniation effacing the anterior subarachnoid space without cord
On February 28,2004, an MRI of Plaintiffs cervical spine showed disc-osteophyte
complex at C3-4 "with contact and deformity of the cord." (Tr. 416.) At C6-7 there was a left
paramedian disc bulge without exiting nerve root involvement and the MRI showed straightening
of the normal lordosis. (Id) About four months later, Dr. Snow, a neurosurgeon, concluded that
Plaintiff had "multi-level cervical degenerative disc disease with cervical spinal cord
compression and spondylosis." (Tr. 413.)
On behalf of the Commissioner, Dr. Louis Lombardi testified at the hearing on March 10,
2008. (Tr. 601-618.) Dr. Lombardi summarized the medical findings and noted "I'm not
doubting that she has pathology based on the MRI and neurologic examination, but it's not borne
out. .. on clinical findings." (Tr. 613-614.) The doctor also concluded that Dr. Songhorian's
treatment notes did not support her findings. (Tr. 612.) Specifically, Dr. Lombardi argued that
there was no indication that Plaintiff was "100% disabled" as Dr. Songhorian concluded because,
to Dr. Lombardi, "a hundred percent. .. means that the patient is so infirm that they have to be
admitted to a hospital and maintain bed rest. ... " (Tr. 613.)
Scope of Review
Judicial review of disability insurance benefit determinations is governed by 42 U.S.C.
§ 1383(c)(3), which expressly incorporates the standards established by 42 U.S.C. § 405(g). In
relevant part, § 405(g) provides that "[t]he findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive[.]" Thus, if the
Commissioner's decision is supported by "substantial evidence" and there are no other legal or
procedural deficiencies, the decision must be affirmed. The Supreme Court has defined
"substantial evidence" to connote "more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389,401 (1971).
"Although factual findings by the Commissioner are binding when supported by
substantial evidence, where an error of law has been made that might have affected the
disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the
decision of the administrative agency by simply deferring to the factual findings of the ALJ [as]
[t]ailure to apply the correct legal standards is grounds for reversal." Pollard v. Halter, 377 F.3d
183, 188-189 (2d Cir. 2004) (internal quotation marks omitted); Townley v. Heckler, 748 F.2d
I 09, 112 (2d Cir. 1984) ("This deferential ["substantial evidence"] standard of review is
inapplicable, however, to the [Commissioner's] conclusions oflaw.").
To qualify for disability insurance, a claimant must be deemed "disabled" as the term is
defined by 42 U.S.C. § 423(d)(l)(A):
inability to engage in any substantial gainful activity 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). A "physical or mental impairment" consists of"an impairment that
results from anatomical, physiological or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
The Commissioner determines whether a claimant meets the statutory definition of
"disabled" in five, successive steps (the "Analysis"). 20 C.F.R. § 404.1520. The sequential
evaluation process requires that: (I) if the claimant is gainfully employed then she will be found
"not disabled"; (2) if the claimant suffers from a "severe" impairment, i.e., one that significantly
limits her physical or mental ability to do basic work activities, then the analysis proceeds to the
third step; (3) if the claimant's "severe" impairment meets or equals an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, and has lasted or is expected to last for a continuous
period of at least twelve months, then the claimant is disabled, if not, the analysis proceeds to the
fourth step; (4) if, after determining the claimant's residual functional capacity, it is determined
that the claimant can perform past relevant work, she will not be found disabled; and (5) if the
claimant cannot perform any work she has done in the past, and the Commissioner determines
that, in conjunction with her residual functional capacity, age, education, and past work
experience, she cannot engage in other substantial gainful work reasonably available in the
national economy, she is disabled. !d.
In determining whether or not a particular claimant is "disabled," the combined effect of
multiple impairments must be taken into consideration by the Commissioner:
[i]n determining whether an individual's physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under this section, the Commissioner
of Social Security shall consider the combined effect of all of the individual's
impairments without regard to whether any such impairment, if considered
separately, would be of such severity. If the Commissioner of Social Security
does find a medically severe combination of impairments, the combined impact of
the impairments shall be considered throughout the disability determination
42 U.S.C. § 1382c(a)(3)(G). The claimant bears the burden of proving disability. Mimms v.
Heckler, 750 F.2d 180, 185 (2d Cir. 1984). In weighing the medical opinion evidence, the ALJ
is obligated to adhere to the rules set forth in 20 C.F.R. § 404.1527. These rules provide that,
generally, more weight is given to the following: (I) opinions provided by physicians who have
actually examined the claimant; (2) opinions provided by a claimant's treating physicians;
(3) opinions supported by objective relevant evidence; (4) opinions that are more consistent with
the record evidence as a whole; (5) opinions of specialists about medical impairments related to
their area of expertise; (6) opinions that may be supported by any other factors the claimant
brings to the Commissioner's attention. 20 C.F.R. § 404.1527(d)(l)-(6). However, the
Commissioner must give a treating physician's opinion on the nature and severity of an
impairment "controlling weight" if his or her opinion is "well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant's] case record." 20 C.F.R. § 404.1527(d)(2). This is the so-called
"treating physician rule." "While the opinions of a treating physician deserve special respect ...
they need not be given controlling weight where they are contradicted by other substantial
evidence in the record." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal citations
omitted). "Genuine conflicts in the medical evidence are for the Commissioner to resolve." Jd
The ALJ's Decision
On May 20, 2008, ALJ Confresi issued a written decision denying benefits. (Tr. 545-66.)
In performing the analysis, the ALJ concluded that Plaintiff met the requirements for disability
insured status through December 31,2004. 3 (Tr. 551.) The ALJ also found that Azeez "did not
engage in substantial gainful activity during the period from her alleged onset date of April 20,
1999 through her date last insured of December 31, 2004." (!d.) Further, although the ALJ
found that Plaintiff suffered a severe impairment under the Social Security regulations, he
concluded that Plaintiff "did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments .... " (Tr. 559.) This determination required the
ALJ to continue to the fourth step of evaluating Plaintiffs residual functional capacity.
I. Residual Functional Capacity
Residual functional capacity is what a claimant remains capable of doing despite any
impairments, severe or otherwise. 20 C.F.R. § 404.1545(a). The residual functional capacity is
determined by considering all relevant evidence, consisting of physical abilities, symptoms
To quality for SSD benefits, one must be both disabled and insured for disability benefits. 42 U.S.C. §
423(a)(l)(A) and (C); 20 C.F.R. §§ 404.101,404.120, and 404.315(a). The last date that a person meets these
requirements is commonly referred to as the date last insured, or the "DLI." Plaintiff's DLI is December 31, 2004
and for her to quality for SSD benefits, the onset of her disability must have occurred on or before December 31,
including pain, and descriptions, including those provided by the claimant, of limitations which
result from the symptoms. 20 C.F.R. § 404.1545. Physical capabilities are determined by
evaluation of exertional and nonexertionallimitations in performing a certain category of work
activity on a regular and continuing basis. 20 C.F.R. § 404.1567; 20 C.F.R. § 404.1569a. To
determine whether a claimant can do a certain category of work, the ALJ must determine the
claimant's strength limitations, or exertional capacity, which include the ability to sit, stand,
walk, lift, carry, push and pull. 20 C.F.R. § 404.1569a(a). Nonexertionallimitations include
"difficulty functioning because [claimant] is nervous, anxious, or depressed" as well as
"difficulty performing the manipulative or postural functions of some work such as reaching,
handling, stooping, climbing, crawling, or crouching." 20 C.F.R. § 404.1569a(c)(i); 20 C.F.R. §
A claimant's residual functional capacity can only be established when there is
substantial evidence of each physical requirement listed in the regulations. LaPorta v. Bowen,
737 F. Supp. 180, 183 (N.D.N.Y. 1990). The ALl's finding must specify the functions the
claimant is capable of performing; and conclusory statements regarding the claimant's capacities
are insufficient. Id; Kendall v. Apfel, 15 F. Supp. 2d 262,268 (E.D.N.Y. 1998). The residual
functional capacity is then used to determine particular types of work a claimant could perform.
20 C.F.R. § 404.1545(a)(5).
As defined in 20 C.F.R. § 404.1567(a), "[s]edentary work involves lifting no more than
ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties." Sedentary work is the
least rigorous of the five categories of work which include very heavy, heavy, medium, light, and
sedentary. 20 C.F.R. § 404.1567. Generally, sedentary work involves "up to two hours of
standing or walking and six hours of sitting in an eight-hour work day." Curry v. Apfel, 209 F.3d
117, 123 (2d Cir. 2000) superseded by statute on other grounds, 20 C.F.R. § 404.1560 (citing
Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). 20 C.F.R. § 404.1567(b) defines light work:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to I 0 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as Joss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
At the fourth step of the analysis, ALJ Confresi determined that Plaintiff retained the
residual functional capacity for the full range of light work (Tr. 565) or, at least, slightly Jess than
the full range of light work (Tr. 560). The ALJ concluded that Plaintiff "retained the ability to
sit, stand and/or walk for up to 6 hours in an 8 hour day, as well as to lift or carry as many as 20
pounds occasionally." (Tr. 561.) Plaintiff's past work was exertionally light, therefore the ALJ
concluded that she could return to it. ALJ Confresi added that if she could not return to her past
work, there were several other jobs Plaintiff could perform that are "present in significant
numbers in the national and local economies," such as accounting or general office clerk, or
receptionist. (Tr. 565-66.)
2. The Treating Physician Rule
"The opinion of a treating physician is given controlling weight if it is well supported by
medical findings and not inconsistent with other substantial evidence." Rosa v. Callahan, 168
F.3d 72,78-79 (2d Cir.1999); 20 C.F.R. § 404.1527(d)(2). An ALJ is required to provide "good
reasons" to accord the opinion other than controlling weight. See Halloran v. Barnhart, 362
F.3d 28, 32 (2d Cir. 2004); 20 C.F.R. § 404.1527(d)(2). "We do not hesitate to remand when the
Commissioner ... do[ es] not comprehensively set forth reasons for the weight assigned to a
treating physician's opinion." Halloran, 326 F.3d at 33.
Plaintiff argues that ALJ Confresi failed to give controlling weight to Dr. Songhorian's
medical opinion. (Pl. Mem. ofL. at 8.) The ALJ disregarded Dr. Songhorian's opinion that
Plaintiff is disabled and unable to perform even sedentary work. (Tr. 565.) The ALJ began by
evaluating Dr. Songhorian's assessment of Plaintiffs residual functional capacity. "First off, Dr.
Songhorian states that the claimant can sit, stand and/or walk for no more than I hour in an 8
hour day. If this were true the claimant would not be disabled for purposes of the Social Security
program. Instead, she would be completely incapacitated." (Tr. 563.) The ALJ also found that
Dr. Songhorian' s treatment records did not support her assessment. On this point, the ALJ wrote
that Dr. Songhorian's "findings consistently included intact cranial nerves, full motor power in
the extremities, a normal gait, no loss of motor power of sensation, and only 'occasional'
complaints of numbness" and that the "records also contain[ed] assertions that are not found in
the treatment notes" such as the doctor "stat[ing] that the claimant suffers from 'auras,' malaise,
loss of appetite and photosensitivity." (Tr. 563-64.) The ALJ writes that Dr. Steven Futrell, the
state agency psychologist who provided a one-time consultative psychiatric evaluation, noted
Plaintiff had a normal appetite. (Tr. 564.) "Dr. Songhorian also stated that the claimant cannot
tolerate stress, even though [s]he is not a psychiatrist, has not performed a mental status
evaluation, and has not diagnosed the claimant with any mental impairment or treated her for
one." (!d) The ALJ writes that many doctors who saw Plaintiff contradict the assertion of
disability. (!d) He expressed, inter alia, that Dr. Snow said Plaintiffs neck pains were getting
"better," Dr. Decker reported "essentially negative" results in June 1999, along with excellent
motor strength, and Dr. Seo found normal cervical lordosis with "only slight functional
The ALJ articulated the above as support for his dismissal of Dr. Songhorian's opinion.
However, while evaluating the doctor's opinion for purposes of complying with the treating
physicians rule, he failed to acknowledge the material in the record that supported Dr.
Songhorian's diagnosis. The various MRis in the record each showed damage to Plaintiff's
spinal column and earlier MRis found cord compression. (Tr. 192, 194,293, 416; see supra 45.) In fact, the ALJ acknowledged that, while he did not find the Plaintiff to be disabled,
Plaintiff's objective impairments could significantly hinder someone in the way Plaintiff
claimed: "the claimant's medically determinable impairment could reasonably be expected to
produce the alleged symptoms .... " (Tr. 562.) In other words, the symptoms of which Plaintiff
complained could logically have followed from her medical impairment. Further, although the
ALJ noted that Dr. Futrell mentioned Plaintiff had a normal appetite, it is clear from the record
that Dr. Futrell was repeating what Plaintiff had stated that day: "Claimant stated ... that her
appetite is normal." (Tr. 382.) However, Dr. Songhorian saw Plaintiff over a longer period of
time, and therefore, had a stronger basis for evaluating Plaintiffs appetite. The ALJ dismissed
Dr. Songhorian's notes on Plaintiffs ability to handle stress on the grounds that Dr. Songhorian
is "not a psychiatrist" and "has not performed a mental status evaluation" or "diagnosed the
claimant for any mental impairment." (Tr. 564.) However, Dr. Futrell did perform a mental
status evaluation and diagnosed Plaintiff with major depressive disorder. (Tr. 385.)
Also, the ALJ noted the findings from Drs. Snow, Decker and Seo that supported his
arguments. However, in a June 24, 2004 Jetter, Dr. Snow wrote that Plaintiff "has multi-level
cervical degenerative disc disease with cervical spinal cord compression and spondylosis" that
will, "in all likelihood[,] not get better." (Tr. 413.) Dr. Decker specifically referred to Plaintiffs
neurological examination as "essentially negative" but also noted the spinal cord compression
indicated by Plaintiffs CT scan and MRI and recommended an eventual surgery when he saw
Plaintiff in June 1999. (Tr. 121-22.) Dr. Seo found that Plaintiff was "slightly limited" and
noted normal cervical lordosis on July 28,2000 (Tr. 211-12), but the February 2004 MRI found
straightening of the normal lordosis (Tr. 416). Furthermore, another of Plaintiffs treating
physicians, Dr. Harold Weissman, Plaintiff's general internist, also opined that Plaintiff was
disabled, noting that the Plaintiff could not lift or carry more than 2 pounds, nor sit for more than
15 minutes. (Tr. 243A.)
An ALJ who refuses to accord controlling weight to the medical opinion of a treating
physician must consider various factors to determine how much weight to give the opinion. 20
C.P.R.§ 404.1527(d)(2). These factors include: (i) the frequency of examination and the length,
nature and extent of treatment relationship; (ii) the evidence in support of the treating physician's
opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion
is from a specialist; and (v) other factors brought to the Social Security Administration's
attention that support or contradict the opinion. Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000); 20 C.F.R. § 404.1527(d)(6). The regulations also require the ALJ to set forth his reasons
for the weight he assigns to the treating physician's opinion. Shaw, 221 F.3d at 134. Failure to
follow this standard constitutes a failure to apply the proper legal standard and is grounds for
reversal. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
There is no evidence that the ALJ evaluated each of the required factors to give Dr.
Songhorian's opinion its due weight. Even if an opinion is not given controlling weight due to
conflicts in the record, it does not automatically indicate the physician's opinion is given no
weight at all. "When we do not give the treating source's opinion controlling weight, we apply
[various factors] in determining the weight to give the opinion." Schaal v. Apfel, 134 F.3d 496,
503 (2d. Cir. 1998) (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). The Court in Schaal
determined that the ALJ's decision in that case was "flawed" and "tainted by legal error"
because "the ALJ failed to consider all of the factors cited in the regulations." !d. at 504. In
evaluating Dr. Songhorian' s opinion for purposes of the treating physician rule, the record gives
no indication that the ALJ considered the long relationship between Dr. Songhorian and Plaintiff,
nor the evidence in support of Dr. Songhorian's opinion as discussed above. Nor is there
evidence that the ALJ duly considered that, as a neurologist, Dr. Songhorian is a specialist in the
area of Plaintiffs injuries.
Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. Under Rule 12(c), judgment on the pleadings may be granted where
the material facts are undisputed and where judgment on the merits is possible merely by
considering the contents ofthe pleadings. Sellers v. MC. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir.l988). However, the ALJ has misapplied the relevant legal standards, and a remand to
the Commissioner is necessary. Pratts v. Chafer, 94 F.3d 34, 39 (2d Cir.l996)(quoting Parker v.
Harris, 626 F.2d 225,235 (2d Cir.l980)); see also Rosa, 168 F.3d at 82-3. "Where application
of the correct legal standard could lead to only one conclusion, we need not remand." Schaal,
134 F .3d at 504 (citing Johnson, 817 F .2d at 986). In this case, however, the ALJ must properly
weigh the treating physicians' opinions before a clear conclusion can emerge. In light of the
above, the Court cannot, as Plaintiff requests, remand the case only for determination of benefits.
Since the Court remands this case based on the ALJ's failure to apply the correct legal
standard, it does not consider the Commissioner's arguments that the final decision was
supported by substantial evidence.
Accordingly, for the foregoing reasons, Plaintiffs and Defendant's motions for judgment
on the pleadings are denied and the matter is reversed and remanded to the Commissioner for
further proceedings consistent with this opinion. The Commissioner is directed to commence
proceedings within sixty days of this Memorandum and Order.
/ SANDRA L. TOWNES'
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