Valet v. Astrue

Filing 20

ORDER denying 12 Motion for Judgment on the Pleadings; denying 14 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, the court denies plaintiff's and defendant's cross-motions for jud gment on the pleadings and remands this case for further proceedings consistent with this opinion. On remand, the ALJ shall: (1) Re-examine the opinions of plaintiff's treating physicians, Dr. Stuart D. Kaplan and Dr. Eric S. Lippman, and provi de sufficient explanations for the weight afforded to their opinions. (2) Consider all of the factors required by 20 C.F.R. § 404.1529(c) and S.S.R. 96-7p in determining the credibility of plaintiff's statements regarding her symptoms and the effects of her impairments. The Clerk of the Court is respectfully requested to close the case. Ordered by Judge Kiyo A. Matsumoto on 1/23/2012. (Winterkorn, Margaret)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
ARGENTINA VALET,
Plaintiff,
NOT FOR PUBLICATION
-againstMEMORANDUM & ORDER
MICHAEL J. ASTRUE,

10-CV-3282 (KAM)

Commissioner of Social Security,
Defendant.
--------------------------------------- X
MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. § 405(g), plaintiff Argentina
Valet (“plaintiff”) appeals the final decision of defendant
Commissioner of Social Security Michael Astrue (“defendant” or
the “Commissioner”) denying plaintiff’s application for Social
Security Disability Insurance Benefits (“SSD”) under Title II of
the Social Security Act (the “Act”), from August 17, 2002 to
March 31, 2003, the date last insured. 1

Plaintiff, who is

represented by counsel, contends that she is “disabled and
unable to work . . .

[due to] osteoarthritis, migraines,

cervical and lumbar radiculopathies and fibromyalgia,” which

1

Individuals may seek judicial review in the United States district court for
the judicial district in which they reside of any final decision of the
Commissioner of Social Security rendered after a hearing to which they were a
party, within sixty days after notice of such decision or within such further
time as the Commissioner may allow. See 42 U.S.C. § 405(g).

impairments have prevented her from obtaining gainful employment
since August 17, 2002.

(See ECF No. 1, Complaint, dated

07/19/2010 (“Compl.”) ¶¶ 4-5.)

Presently before the court are

the parties’ cross-motions for judgment on the pleadings.

For

the reasons set forth below, the cross-motions are denied and
the case is remanded for further proceedings consistent with
this opinion.
BACKGROUND
I.

Plaintiff’s Personal and Employment History
Plaintiff was born on August 17, 1952 in the Dominican

Republic.

(ECF Nos. 17 & 18, Administrative Transcript, filed

2/28/2011 (“Tr.”), at 150, 613, 726.)

After graduating from

high school in 1969, plaintiff immigrated to the United States
and she subsequently became an American citizen.
168, 726.)

(Id. at 626,

In 1970, plaintiff married Juan F. Valet in the

Dominican Republic.

(Id. at 150.)

couple has six children. 2

Plaintiff testified that the

(Id. at 732.)

From September 1978 to January 1995, plaintiff was
employed as a hand packer at the Stanley Paper Company, where
she operated a machine that made vacuum bags and “packed the
paper into a box coming off of a machine.” (Id. at 162, 177,
179, 628-29.)

According to plaintiff’s testimony before the

2

According to the Administrative Record, plaintiff has two children under the
age of 18. (See Tr. at 150-51.)

2

Administrative Law Judge (“ALJ”), plaintiff lifted boxes
weighing between 10 and 20 pounds daily. 3

(Id. at 629.)

In

addition to working at the factory, between 1989 and 1991,
plaintiff worked weekends at a beauty parlor styling and cutting
hair.

(Id. at 727, 736.)
From September 1996 to May 1998, plaintiff was

employed at Golden Mark Industries and cleaned medical offices.
(Id. at 162, 177-78.)

As a cleaner, plaintiff mopped, cleaned,

vacuumed and took out the garbage.

(Id. at 178, 628.)

Plaintiff testified that she lifted “maybe ten pounds” at work
(Id. at 628.) 4

and mainly stood and walked during the workday.

Plaintiff further testified that she has not worked since 1998.
(Id. at 682.)

Plaintiff stated that she stopped working in 1998

because she “[couldn’t] get to the vacuum,” due to pain in her
left side, pain in her shoulder, and headaches.

(Id. at 728.)

Additionally, plaintiff testified that her lower back and knee
bothered her.

(Id. at 729.)

On June 6, 2005, plaintiff testified before ALJ Dennis
O’Leary (“ALJ O’Leary”) that she lived at home with her husband
and three of her daughters.

(Id. at 732-33.)

Plaintiff further

reported that she cooked for 30 minutes to an hour, but not

3

Plaintiff noted on her work history report that she frequently lifted
between 25 and 50 pounds. (Tr. at 179.)
4

Plaintiff noted on her work history report that she frequently lifted 25
pounds during the workday. (Tr. at 178.)

3

every day.

(Id. at 733.)

Plaintiff’s daughters did the laundry

and her husband did the grocery shopping.

(Id. at 733-34.)

Plaintiff further testified that she could stand for 30 minutes
before she felt pain and had to sit down again.

(Id. at 734.)

Plaintiff testified, however, that she sometimes walked ten
blocks to her daughter’s school and sometimes walked to the
store from her house.
II.

(Id. at 735, 738.)

Plaintiff’s Medical History
A. Report of Eric S. Lippman, M.D.
Eric S. Lippman, M.D. (“Dr. Lippman”) first saw

plaintiff on March 8, 2000 and reported that she had “an
approximately 4-5 year history of low back pain which radiated
to the left lower extremity without complaints of paresthesias 5
or weakness.”

(Id. at 389.)

Upon examination, Dr. Lippman

observed that plaintiff’s straight leg raise was negative
bilaterally and she had tight hamstrings and pain with flexion
of the lumbosacral spine.

(Id. at 285.)

He also noted that

plaintiff was “able to heel walk and toe walk easily” and had
“full range of motion of the hips, knees and ankles.”

(Id.)

Dr. Lippman diagnosed low back pain and lumbosacral radiculitis 6

5

The term “paresthesia” refers to “an abnormal sensation of the skin, such as
numbness, tingling, pricking, burning, or creeping on the skin that has no
objective cause.” Definition of Paresthesia, MedicineNet.com,
http://www.medterms.com/script/main/art.asp?articlekey=4780 (last visited
Jan. 20, 2012).

6

The term “radiculitis” or “radiculopathy” refers to a “a condition due to a
compressed nerve in the spine that can cause pain, numbness, tingling, or

4

and prescribed Flexeril and a rehabilitation program.

(Id.)

Although plaintiff “did not have complete resolution,” she
responded “with a moderation of her symptoms to the therapy at
the time.”

(Id. at 389.)
On June 12, 2000, Charles J. DeMarco, M.D. (“Dr.

DeMarco”) reported on an MRI of plaintiff’s lumbar spine ordered
by Dr. Lippman.

(Id. at 328.)

Dr. DeMarco found posterior disc

bulging of the L4-5 intervertebral disc and moderate disc
degeneration at L5-S1 with a narrowing of the right lateral
neural foramen.

(Id.)

Dr. DeMarco also noted that the conus

medullaris and cuada equina were “normal in position and
appearance.” (Id.)
In a left knee MRI report dated August 24, 2000,
Howard J. Gelber, M.D. (“Dr. Gelber”) reported to Dr. Lippman
that plaintiff had a palpable lump and “pain posteriorly and
laterally in the left knee.”

(Id. at 327.)

Dr. Gelber found

that there was a “Grade II signal [in the] posterior horn of the
medial meniscus without evidence of [a] superimposed tear” and
that “no . . . abnormality [was] evident in the area of the oilfilled marker.”

(Id.)

Additionally, Dr. Gelber found that “the

anterior and posterior cruciate ligaments, medial and lateral

weakness along the course of the nerve.” The most common location of
radiculopathy is in the lower back and neck. Radiculopathy, MedicineNet.com,
http://www.medicinenet.com/radiculopathy/article.htm (last visited Jan. 20,
2012).

5

collateral ligaments, and patellar and quadriceps tendons
appear[ed] unremarkable.”

(Id.)

On July 23, 2001, plaintiff went to Dr. Lippman
complaining of recurring neck, back, and left knee pain.
at 389, 343.)

(Id.

Plaintiff told the doctor that “movement

increased her pain and rest reduced her pain.”

(Id.)

The

doctor noted “some radiation to the left upper extremity with
paresthesias with possible left upper extremity weakness.”
(Id.)

Dr. Lippman also noted “bilateral cervical and trapezius

tenderness, left shoulder tenderness, bilateral lumbosacral
tenderness, tight hamstrings and pain with flexion but no pain
with extension.”

(Id.)

Dr. Lippman prescribed plaintiff

Celebrex, Flexeril, and physical therapy.

(Id. at 389, 344.)

Plaintiff next saw Dr. Lippman on December 16, 2002
complaining of neck, back, and knee pain.

(Id. at 389, 347-48.)

Additionally, plaintiff complained that “her pain was increasing
with sitting and sitting in one position for a long period of
time.”

(Id. at 389.)

Dr. Lippman noted that plaintiff had

“some paresthesias on the left side [and her] back pain was
radiating down the left lower extremity.”

(Id.)

Dr. Lippman’s

examination revealed a “reduced cervical range of motion, left
trapezius and periscapular tenderness and trigger points, right
and left lumbosacral tenderness and left knee posterior
tenderness.”

(Id. at 389, 348.)

He also noted that plaintiff

6

was “able to heel/toe” walk, her flexion was ok, and sensation
was intact.

(Id. at 347-48.) 7

Plaintiff saw Dr. Lippman three more times between
January 15, 2003 and February 13, 2003, with no significant
changes noted by the doctor.

(See id. at 349-51.)

On February

26, 2003, plaintiff followed up with Dr. Lippman after physical
therapy and reported that her left knee was “75% improved,” but
that “she had no changes in her neck pain.”

(Id. at 390, 352.)

On January 4, 2005, Dr. Lippman performed an EMG 8 and
nerve conduction studies on plaintiff.

(Id. at 383-87.)

The

nerve studies were “normal for latency, amplitude and nerve
conduction velocity.”

(Id. at 384.)

The EMG study revealed

“fibrillation potentials in the left 1st [dorsal interossei]
muscle.”

(Id. at 384; see also id. at 617.)

A concurrent

physical examination showed no atrophy or weakness.
387.)

(Id. at

Dr. Lippman found that plaintiff had a “left C8-T1

7
The court notes that the record contains additional records from Franklin
Hospital Medical Center, which show that in December 2002, plaintiff was
given a blood transfusion, and in January 2003 and November 2004, plaintiff
underwent dilation and curettage. (See Tr. at 295-312, 360-373.) The
pathology report was within normal limits, (id. at 364), and this condition
does not appear to relate to or have any bearing on the impairments on which
plaintiff’s claims for SSD are based.
8

An electromyogram (EMG) is a test used to record the electrical activity of
muscles. Electromyogram (EMG), MedicineNet.com,
http://www.medicinenet.com/electromyogram/article.htm (last visited Jan. 20,
2012).

7

radiculopathy,” and he suggested an MRI of plaintiff’s cervical
spine. 9

(Id. at 384, 387.)
Plaintiff’s final visit to Dr. Lippman occurred on

March 28, 2005, where she complained of weakness and “leftsided
neck pain radiating to the left upper extremity.”
496.)

(Id. at 390,

Plaintiff reported that she became dizzy and had

increased pain with cervical range of motion.

(Id.)

Dr.

Lippman’s physical examination revealed, inter alia, a “reduced
rightward rotation to 20 [degrees]” and left-sided neck
tenderness.

(Id. at 390.)

An x-ray of plaintiff’s shoulder

showed “some mild degenerative changes.”

(Id. at 390, 496.)

Plaintiff’s leftward rotation, flexion and extension, however,
were normal, she had full range of motion in her shoulders,
elbows, wrists, and hands, and her tone, coordination, gait, and
balance were normal.
of impingement.

(Id.)

(Id. at 496.)

The doctor found no signs

Further, plaintiff’s strength was 5/5 in

all major muscle groups and her bilateral sensation was intact.
(Id.)

Dr. Lippman prescribed plaintiff Tylenol, physical

therapy, and a home exercise program, which he hoped would
“restore her normal level of function.”

(Id. at 390, 496.)

Dr. Lippman’s final diagnosis of plaintiff, given in
his May 26, 2005, narrative report, stated:

9

There is no evidence in the record that an MRI of the cervical spine was
performed.

8

Ms. Valet has had intermittent recurrent pain in the
neck, knee and back, more focused recently on the neck
which
radiates
to
the
left
upper
extremity,
accompanied by some weakness and radicular symptoms.
This is continuing and continues to cause her pain and
disability.
This is limiting her ability to perform
her daily activities and work at a sustained fulltime
basis.
(Id. at 390.)
B. Report of Stuart D. Kaplan, M.D.
Stuart D. Kaplan, M.D. (“Dr. Kaplan”) first met
plaintiff on June 23, 1999, for a rheumatologic consultation
after she complained of pain and tingling in her hands and feet.
(Id. at 391, 470.)

On physical examination, Dr. Kaplan found

“multiple tender points as well as some tender lymph nodes in
the neck and positive Tinel signs in both wrists.”

(Id.)

Plaintiff was diagnosed with a “fibromyalgia-type of syndrome,”
which may have been caused by a viral infection, as well as
“some carpal tunnel syndrome.”

(Id. at 391.)

Dr. Kaplan

treated plaintiff with a short course of steroids and Flexeril.
(Id.)
After a follow-up appointment on July 7, 1999, Dr.
Kaplan indicated that plaintiff had “some shingles on her left
flank in addition to a tender cervical node and multiple tender
points.”

(Id. at 391, 462.)

Dr. Kaplan gave plaintiff an

intramuscular injection of Toradol and prescribed Elavil.

9

(Id.)

Dr. Kaplan next saw plaintiff on February 7, 2000,
when she came in complaining of “some aches in her hands and
feet and also . . . a sore throat.”

(Id. at 391, 461.)

A

physical examination revealed “mild tenderness across the lumbar
spine but no swelling or synovitis of the joints.”

(Id.)

Dr.

Kaplan found that plaintiff had “an upper respiratory infection
with related arthralgias.”

(Id.)

Zithromax, Tylenol, and Flexeril.

Plaintiff was treated with
(Id.)

At a follow-up

appointment on February 21, 2000, plaintiff complained that her
back was still hurting and Dr. Kaplan prescribed Vioxx.

(Id.)

Plaintiff had two follow-up visits with Dr. Kaplan, on
June 5, 2000 and July 3, 2000, respectively.
451, 449.)

(See id. at 392,

Plaintiff complained of lower back pain that

radiated to her legs and reported that she was having trouble
walking.

(Id.)

Dr. Kaplan’s physical examination revealed

“some tenderness over the lateral aspect of the hips and diffuse
tenderness and spasm across the lumbar region.”

(Id. at 392.)

Dr. Kaplan gave plaintiff Ultram for pain control and directed
her to continue with physical therapy.

(Id.)

Dr. Kaplan next saw plaintiff on October 18, 2000, at
which time she complained of “diffuse musculoskeletal pain” and
pain radiating down her left leg.

(Id. at 392, 448.)

A

physical examination revealed multiple tender points and Dr.
Kaplan diagnosed plaintiff with “fibromyalgia, osteoarthritis

10

and lumbosacral radiculopathy.”
Paxil, Flexeril, and Celebrex.

(Id.)
(Id.)

Dr. Kaplan prescribed
At a subsequent

appointment on July 16, 2001, Dr. Kaplan again opined that
plaintiff had “fibromyalgia and lumbosacral radiculopathy,”
adding Skelaxin to her medications.

(Id. at 392, 444.)

On

November 19, 2001, plaintiff complained to Dr. Kaplan that the
Skelaxin made her sleepy, and he recommended that she increase
her physical therapy and consider epidural injections.

(Id. at

392, 443.)
On December 4, 2002, plaintiff saw Dr. Kaplan with
complaints of left knee and neck pain.

(Id. at 392, 440.)

A

physical examination revealed “some posterior spasm and
tenderness of the neck and some crepitation and tenderness in
the left knee as well as the usual lumbar spasm.”

(Id.)

An x-

ray of plaintiff’s cervical spine showed “slight degenerative
changes at the posterior aspects of C4 through C7,” while a knee
x-ray revealed “mild degenerative joint disease.”

(Id.)

Dr.

Kaplan prescribed Vioxx and Skelaxin and referred plaintiff for
physical therapy.

(Id.)

On four subsequent visits to Dr. Kaplan between April
2, 2003 and May 5, 2004, plaintiff complained of pain in her
left hip, neck, and left knee, along with pain and numbness in
her hands.

(See id. at 392-93, 439.)

Plaintiff also noted,

“she could not stand for any prolonged period of time.”

11

(Id. at

392.)

Dr. Kaplan found that plaintiff had “trochanteric

bursitis of the hip in addition to her underlying osteoarthritis
and fibromyalgia.”

(Id. at 392.)

In plaintiff’s final three visits to Dr. Kaplan
between December 23, 2004 and April 29, 2005, she continued to
complain of shoulder and neck pain, along with numbness in her
hands.

(See id. at 393.)

Plaintiff noted that although “the

injection in [her] left shoulder had helped for a while . . .
the shoulder pain was returning.”

(Id.)

Dr. Kaplan found

positive Tinel signs, “rotation of the neck limited to 80
[degrees] in each direction,” and crepitation in the left
shoulder and both knees.

(Id.)

In a letter to plaintiff’s counsel dated June 1, 2005,
Dr. Kaplan stated that he had treated plaintiff over the course
of six years for “rheumatologic problems including
osteoarthritis, lumbosacral and cervical radiculopathies, carpal
tunnel syndrome and fibromyalgia syndrome.”

(Id.)

Dr. Kaplan

concluded that plaintiff’s functional capacity was “very limited
and she is unable to perform any activities requiring prolonged
standing, walking, sitting or repetitive use of her arms or
hands.” (Id.)

In his opinion, plaintiff was “totally disabled

and not capable in engaging in any meaningful employment.”
at 394.)

12

(Id.

C. Report of David Steiner, M.D.
On January 13, 2005, at the request of Dr. Kaplan,
plaintiff saw a neurologist, David Steiner, M.D. (“Dr.
Steiner”), regarding her “near daily” headaches.
498-99.)

(See id. at

Upon physical examination, Dr. Steiner noted that

plaintiff’s cervical spine had “increased tone with pain to
palpation and decreased [range of motion] to flexion, extension
and lateral rotation.”

(Id. at 500.)

Her lumbar spine,

however, had normal range of motion and no pain to palpation.
(Id.)

In a test of plaintiff’s motor strength, Dr. Steiner

found she had “4+/5 left elbow extension and left shoulder
abduction, [with] all else grossly 5/5 strength . . . with
normal tone and no atrophy.”

(Id. at 501.)

Her sensation was

intact to light touch and she could ambulate independently.
(Id.)

Dr. Steiner diagnosed plaintiff with migraines without

aura, cervical radiculopathy, cervicalgia, and chronic daily
headaches.

(Id.)

He recommended continued physical therapy and

suggested acupuncture for neck pain and other medications for
plaintiff’s headaches.

(Id.)

D. Report of James E. Henry, D.O.
On May 18, 2007, plaintiff saw James E. Henry, D.O.
(“Dr. Henry”).

Plaintiff’s chief complaint was “longstanding

low back and neck pain since 1999.”

(Id. at 586.)

At the time,

the only medication plaintiff reported using was Tylenol.

13

(Id.)

Dr. Henry reviewed imaging results of plaintiff’s spine, which
showed “mild degenerative changes” to plaintiff’s cervical spine
and “significant facet degeneration . . . with decreased space”
with respect to plaintiff’s lumbar spine.

(Id.)

He diagnosed

plaintiff with “arthritis with degenerative disc disease at the
lumbar spine without lower radicular symptoms, mechanical back
pain, and cervical mild degenerative arthritis.”

(Id. at 587.)

He suggested physiotherapy, weight loss, and antiinflammatories.

(Id.)

E. Report of Robert Zaretsky, M.D.
On October 15, 2007, Robert Zaretsky, M.D. (“Dr.
Zaretsky”) performed an orthopedic consultation for plaintiff.
(Id. at 425.)

At the time of plaintiff’s visit to Dr. Zaretsky,

she complained of lower back pain that radiated to her left leg,
muscle soreness, and headaches.

(Id.)

Plaintiff told the

doctor that she had “the capacity to walk about 3 blocks very
slowly . . . [could] stand for 15 minutes, sit 20 minutes and
lift and carry approximately 15-20 pounds, depending on the
day.”

(Id. at 426.)
Upon physical examination, Dr. Zaretsky found

“tenderness across the trapezius muscles bilaterally” and noted
that plaintiff’s “neck flexion was restricted to 40 [degrees],
extension 40 [degrees], [and] rotation 40 [degrees] to the right
and left.”

(Id.)

An examination of plaintiff’s lumbar region

14

revealed that her “trunk flexion was 40 [degrees], extension 10
[degrees] and lateral bend 10 [degrees] to the left and right.”
(Id.)

Plaintiff’s leg raise was negative but there was a “1.5

[inch] atrophy of the left calf.”

(Id.)

Dr. Zaretsky opined

that plaintiff had been disabled since 1998 through the date of
the examination.

(Id.)

He concluded that plaintiff had

“limited capacity for sitting, standing, walking, lifting and
carrying,” and recommended that she continue taking her
medication and seeking physical therapy.

(Id.)

F. Physicians’ Multiple Impairments Questionnaires
Dr. Kaplan and Dr. Zaretsky each completed a multiple
impairments questionnaire regarding plaintiff’s medical
condition.

(See id. at 395-402, 427-34.)

Dr. Kaplan noted on

his questionnaire that “if [his] patient were placed in a normal
COMPETITIVE FIVE DAY A WEEK WORK ENVIRONMENT ON A SUSTAINED
BASIS,” she could sit for three hours and stand or walk for less
than one hour.

(Id. at 397.)

He also estimated that

plaintiff’s level of pain was “moderately severe.”

(Id.) 10

Dr.

Kaplan stated that plaintiff could occasionally lift up to ten
pounds and carry up to five pounds.

(Id. at 398.)

Dr. Kaplan

also noted that plaintiff was limited in doing repetitive
reaching, handling, fingering, or lifting because of her

10

Dr. Kaplan circled 8 out of 10 on his questionnaire, which corresponds to a
pain level of moderately severe. (Tr. at 397.)

15

“cervical radiculopathy and symptoms of carpal tunnel syndrome.”
(Id. at 398-99.)

Finally, Dr. Kaplan reported that plaintiff

was only capable of low stress work because stress worsened her
fibromyalgia and that all of her symptoms combined would likely
cause plaintiff to miss work more than three times a month.
(Id. at 400, 401.)
Dr. Zaretsky noted on his questionnaire that “if [his]
patient were placed in a normal COMPETITIVE FIVE DAY A WEEK WORK
ENVIRONMENT ON A SUSTAINED BASIS,” she could sit for two hours a
day and stand or walk for one hour per day.

(Id. at 429.)

He

further noted that plaintiff’s level of pain was “moderately
severe.”

(Id.) 11

Dr. Zaretsky also estimated that plaintiff

could occasionally lift or carry ten to fifteen pounds.
430.)

(Id. at

Finally, Dr. Zaretsky reported that plaintiff was only

capable of low stress work because stress had an adverse effect
on her fibromyalgia and that she would have to miss work more
than three times a month.
III.

(Id. at 432, 433.)

Expert Testimony
A. Expert Testimony of Bernard Gussoff, M.D.
On August 7, 2008, Bernard Gussoff, M.D. (“Dr.

Gussoff”), a board certified doctor in internal medicine with a
subspecialty in hematology and oncology, testified as a medical

11

Dr. Zaretsky circled 7-8 out of 10 on his questionnaire, which corresponds
to a pain level of moderately severe. (Tr. at 429.)

16

expert at a hearing before Administrative Law Judge Hazel
Strauss (“ALJ Strauss”).

(See id. at 682, 122.)

Dr. Gussoff

opined that plaintiff had “two out of the three [requirements]
which would not meet, but would be an equivalent” to Medical
Listing 1.04A.

(Id. at 696.)

Specifically, he stated that

although plaintiff did not have spinal stenosis, atrophy, or a
positive straight leg raising test, (id. at 699, 707, 708), she
did have “encroachment on the neural foramina, nerve root
impingements, and . . . a herniated disc,” which, “combined with
her complaints and with the reports of the doctors to indicate
there was good and sufficient evidence that she was
incapacitated in that area.”

(Id. at 695-96.)

Dr. Gussoff

opined that an individual with encroachment of the nerve root
and severe pain has a sufficient reason to be compromised in
function.

(Id. at 701.)

B. Expert Testimony of Edward Spindell, M.D.
At a supplemental hearing before ALJ Strauss on
October 14, 2008, Edward Spindell, M.D. (“Dr. Spindell”), an
orthopedic surgeon, testified that plaintiff did not have an
impairment that met or equaled the severity of Medical Listing
1.04.

(See id. at 632, 641, 142.)

Dr. Spindell testified that

the June 2000 MRI of plaintiff’s lumbosacral spine, which showed
“some degenerative changes with a disc herniation encroaching
upon the right neural foramina,” was not significant to

17

plaintiff’s complaints of left leg pain because the findings of
the MRI were all on plaintiff’s asymptomatic right side.
at 636-37, 645.)

(Id.

Dr. Spindell also noted that the deficit

revealed by the January 4, 2005 EMG study of plaintiff’s
cervical spine related only to the left first finger, and not to
the entire hand, and the clinical findings related to the EMG
study were “within normal limits,” with “no sensory deficit, no
motor deficit, motion was complete, [and] strength was normal.”
(Id. at 637, 639-40.)

In light of these normal clinical

findings, Dr. Spindell stated that the EMG results bore less
significance.

(Id. at 638.)

Dr. Spindell further stated that

“there was nothing that showed an acute neurological deficit
involving motor strength[,] . . . there were no neurological
deficits and . . . the findings showed no gross deformity.”
(Id. at 642.)

Dr. Spindell believed that plaintiff could sit

and walk for six hours, climb stairs two to four times a day,
occasionally squat, and occasionally kneel.

(Id. at 651-53.)

Finally, Dr. Spindell noted that the record lacked a definite
diagnosis of fibromyalgia or multiple trigger points.

(Id. at

654.)
C. Testimony of Vocational Expert Julie Andrews
Julie Andrews (“Ms. Andrews”), a vocational expert,
testified before ALJ Strauss at the October 14, 2008
supplemental hearing.

(Id. at 664.)

18

Ms. Andrews was asked to

testify about the type of employment an individual could obtain
if he or she was of the same age, education and past relevant
work as plaintiff, could lift and carry 20 pounds occasionally
and ten pounds frequently, and could sit six out of eight hours
and stand and walk six out of eight hours.

(Id. at 667-68.)

Ms. Andrews testified that plaintiff could perform her past work
as a hand packager as she had actually performed the job.

(Id.)

Additionally, Ms. Andrews testified that an individual with the
residual functional capacity described above could be an
information clerk or a surveillance system monitor.

(Id. at

672.)
IV.

Procedural History
On February 21, 2003, plaintiff applied for SSD

benefits, alleging disability since June 9, 1999. 12

(Id. at

150.)

The Commissioner denied plaintiff’s claim on April 30,

2003.

(Id. at 54.)

On May 23, 2003, plaintiff requested a

hearing before an Administrative Law Judge.

(Id. at 59.)

Her

request was granted, and the hearing took place on June 6, 2005
before ALJ Dennis O’Leary, at which time plaintiff testified and
was represented by counsel.

(See id. at 721-40.)

On August 16, 2005, ALJ O’Leary issued a decision
denying plaintiff’s claims that she was entitled to Social
12

At the hearing before ALJ Dennis O’Leary on June 6, 2005, plaintiff amended
her onset date to August 17, 2002. (Tr. at 725.) This was the date that she
turned 50 years old. (Id. at 719.)

19

Security Disability Insurance Benefits.

(Id. at 53.)

ALJ

O’Leary found that plaintiff’s impairments did not meet or equal
Medical Listing 1.04A, that plaintiff’s complaints were not
totally credible, and that plaintiff was not under a disability
as defined by the Social Security Act.

(Id. at 52-53.)

Plaintiff requested, and on September 9, 2005 was granted, a
review of ALJ O’Leary’s decision under the error of law
provision of the Social Security Administration Regulations (the
“Regulations”).
§ 404.969(b)(2).

(Id. at 57.)

See also 20 C.F.R.

On June 15, 2007, the Appeals Council remanded

the case to ALJ Strauss and ordered that the ALJ obtain
additional evidence from plaintiff’s treating physicians, give
further consideration to the treating physicians’ opinions,
obtain evidence from an internist, and, if warranted, obtain
evidence from a vocational expert.

(Id. at 57-58, 102.)

ALJ Strauss sought additional information from Drs.
Kaplan and Lippman, and also requested information from
plaintiff’s physician Dr. Robert Farron.

(See id. at 205-07.)

On August 7, 2008 and October 14, 2008, ALJ Strauss held further
hearings on plaintiff’s SSD claims.

(Id. at 104, 126.)

At the

August 7, 2008 hearing, ALJ Strauss sought the opinion of Dr.
Gussoff, an internist.

(See id. at 682.)

At the October 14,

2008 hearing, ALJ Strauss sought the opinion of an orthopedic
surgeon, Dr. Spindell.

(See id. at 632.)

20

On June 25, 2009,

after de novo review, ALJ Strauss issued a decision pursuant to
the five-step sequential evaluation process for determining
whether an individual is disabled under the Act.
24-35.)

(See id. at

See 20 C.F.R. § 404.1520(a)(4) (setting forth the five-

step sequential evaluation process).
According to ALJ Strauss, under step one, plaintiff
had not engaged in substantial gainful activity during the
period from her amended alleged onset date of August 17, 2002
through the date last insured of March 31, 2003.

(Tr. at 27.)

Under step two, the ALJ found that plaintiff’s severe
impairments included lumbar disc disease, cervical disc disease
and fibromyalgia. 13

(Id.)

ALJ Strauss also found under step two

that there was no evidence to establish medically determinable
impairments in her left shoulder or left hip, and plaintiff’s
headaches were not persistent enough to qualify as a severe
impairment.

(Id.)

Under step three, ALJ Strauss found that

plaintiff’s impairments did not meet or medically equal one of
the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 14

(Id.)

Additionally, ALJ Strauss reasoned that the

testimony of Dr. Gussoff, stating that plaintiff had an
impairment equal to Medical Listing 1.04A, was not credible and

13

See 20 C.F.R. § 404.1520(c).

14

See 20 C.F.R. § 404.1520(d)-(e).

21

not supported by the medical record.

(Id.)

Next, ALJ Strauss

opined that:
[T]hrough the last date insured, the claimant had the
residual function capacity to perform light work or
work that involved lifting 20 pounds occasionally, 10
pounds frequently, sitting 6 hours out of an 8 hour
workday, standing and walking 6 hours out of an 8 hour
workday with normal and usual breaks.
(Id.)

In making this finding, ALJ Strauss considered opinion

evidence and the credibility of plaintiff’s statements about her
symptoms. 15

(Id. at 28.)

ALJ Strauss opined that because of

inconsistencies in the findings of both Dr. Kaplan and Dr.
Lippman, their opinions were not entitled to controlling or
significant weight.

(Id. at 33.)

ALJ Strauss also determined

that the expert testimony of Dr. Spindell, and not Dr. Gussoff,
should be given significant weight because Dr. Spindell had
“more appropriate medical expertise . . . and fully explained
his conclusions by citing to the record.”

(Id. at 31.)

Additionally, ALJ Strauss found that plaintiff’s statements were
inconsistent with the residual functional capacity assessment of
Dr. Spindell.

(Id. at 33.)

Under step four, ALJ Strauss

determined that plaintiff was “capable of performing past
relevant work as a hand packer.”

(Id. at 34.)

The ALJ also

proceeded to step five and concluded that plaintiff could
perform other jobs in the national economy.

15

See 20 C.F.R §§ 404.1527, 404.1529.

22

(Id. at 34-35.)

Based on this analysis, ALJ Strauss found that plaintiff “was
not under a disability, as defined in the Social Security Act,”
during the time between the alleged onset date and the date last
insured.

(Id. at 35.)
On May 26, 2010, ALJ Strauss’s decision became the

final decision of the Commissioner when the Appeals Council
denied plaintiff’s request for review.

(Id. at 6.)

Proceeding

with counsel, plaintiff filed the instant Complaint on July 19,
2010, alleging that she is entitled to receive SSD benefits
because she suffers from “osteoarthritis, migraines, cervical
and lumbar radiculopathies and fibromyalgia,” which impairments
plaintiff alleges have rendered her disabled and prevented her
from engaging in any work since August 17, 2002.
1, Compl. ¶¶ 4-5.)

(See ECF No.

In her Complaint, plaintiff alleges that the

ALJ’s decision is “erroneous . . . and not supported by
substantial evidence.”

(Id. ¶ 17.)
DISCUSSION

I.

Legal Standards
A. The Substantial Evidence Standard
The district court has the “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).

23

The district court does not

review the Commissioner’s decision de novo to determine whether
a claimant is disabled.
Cir. 1996).

Pratts v. Chater, 94 F.3d 34, 37 (2d

Instead, in reviewing the final decision of the

Commissioner, a district court’s inquiry is limited to the
question of whether the correct legal standards were applied and
whether substantial evidence supports the decision.

Id.

“A

district court may set aside the [ALJ’s] determination that a
claimant is not disabled only if the factual findings are not
supported by ‘substantial evidence’ or if the decision is based
on legal error.”

Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.

2000) (citing 42 U.S.C. § 405(g)).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

In

determining whether substantial evidence supports the findings
of the ALJ on appeal, the court will consider “the whole record,
examining the evidence from both sides.”
F.2d 255, 258 (2d Cir. 1988).

Williams v. Bowen, 859

This includes “contradictory

evidence and evidence from which conflicting inferences can be
drawn.”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting

Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per
curiam)).

Finally, the district court “may not substitute its

own judgment for that of the [ALJ], even if it might justifiably

24

have reached a different result upon a de novo review.”

Jones

v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984)).
B. The Commissioner’s Five-Step Analysis of Disability
Claims
A claimant must be “under a disability,” as defined by
the Social Security Act, in order to receive disability
benefits.

42 U.S.C. § 423(a)(1)(E).

A claimant can establish

disability by demonstrating an “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.”
§ 423(d)(1)(A).

Id.

The impairment must be “of such a severity”

that the claimant is “not only unable to do [his or her]
previous work but cannot, considering [his or her] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
Id. § 423(d)(2)(A).
The Social Security Administration has promulgated a
five-step sequential analysis requiring the ALJ to find the
claimant disabled if the ALJ determines:

25

“(1) that the claimant

is not working, 16 (2) that he [or she] has a ‘severe
impairment,’ 17 (3) that the impairment is not one that is [listed
in Appendix 1 of the Regulations] that conclusively requires a
determination of disability, 18 . . . (4) that the claimant is not
capable of continuing in his [or her] prior type of work, 19 . . .
[and] (5) there is not another type of work that claimant can
do.” 20

Scott v. Astrue, No. 09-CV-3999, 2010 WL 2736879, at *8

(E.D.N.Y. July 9, 2010) (citing Burgess v. Astrue, 537 F.3d 117,
120 (2d Cir. 2008)); see also 20 C.F.R. § 404.1520(a)(4).

If

after step three the ALJ has found that the claimant’s
“impairment(s) does not meet or equal a listed impairment,” the
ALJ will “make a finding about [claimant’s] residual functional
capacity” (“RFC”).

20 C.F.R. § 404.1520(e).

The RFC is used at

both the fourth and fifth steps of the sequential evaluation.
Id.
16

Under the first step, if the claimant is working and the work he or she is
doing is “substantial gainful activity,” then the claimant is not disabled
regardless of other findings. 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b).

17

Under the second step, the claimant must have an “impairment or combination
of impairments which significantly limits [his or her] physical or mental
ability to do basic activities” in order to be classified as severe. 20
C.F.R. § 404.1520(c); see also id. § 404.1520(a)(4)(ii).

18

Under the third step, if the claimant has an impairment that “meets the
duration requirement and is listed in appendix 1, or is equal to a listed
impairment(s),” the claimant will be found disabled. 20 C.F.R.
§ 404.1520(d); see also id. § 404.1520(a)(4)(iii).

19

Under the fourth step, the claimant’s “impairment(s) must prevent [him or
her] from doing [his or her] past relevant work” to be found disabled. 20
C.F.R. § 404.1520(f); see also id. § 404.1520(a)(4)(iv).

20

Under the fifth step, the claimant’s “impairment(s) must prevent [him or
her] from making an adjustment to any other work” that is available in the
national economy in order to be found disabled. 20 C.F.R. § 404.1520(g); see
also id. § 404.1520(a)(4)(v).

26

At steps one through four of the five-step analysis,
the claimant bears the “general burden of proving that he or she
has a disability within the meaning of the Act.”
F.3d at 128 (citations omitted).

Burgess, 537

At the fifth step of the

sequential evaluation process, the burden shifts from the
claimant to the Commissioner “to prove that the claimant, if
unable to perform her past relevant work, is able to engage in
gainful employment within the national economy.”

Soboloweski v.

Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
II.

Application
A. The ALJ Properly Determined That Plaintiff’s Spinal
Impairment Did Not Meet or Equal Medical Listing
1.04A.
Plaintiff contends that the ALJ’s conclusion that

plaintiff’s spinal impairment did not meet or equal Medical
Listing 1.04A was based on numerous errors.
1. The ALJ did not err in holding a supplementary
hearing and having an additional medical expert
testify.
Plaintiff argues that ALJ Strauss erred by obtaining
the testimony of a second medical expert, Dr. Spindell, at a
supplemental hearing held on October 14, 2008.

(See ECF No. 13,

Memorandum of Law in Support of Plaintiff’s Motion for Judgment
on the Pleadings, dated 12/16/2010 (“Pl. Mem.”) at 19-20.)
Specifically, plaintiff argues that because Dr. Gussoff’s
testimony was “uncontradicted” and, prior to Dr. Spindell’s

27

testimony, “the record was unanimous and unambiguous,” the “most
obvious explanation” as to why ALJ Strauss sought Dr. Spindell’s
testimony was to “actively seek[] a basis to deny Plaintiff[’s]
claim.”

(Id. at 19.)

Additionally, plaintiff argues that in

seeking Dr. Spindell’s testimony, ALJ Strauss violated the
Social Security Administration’s own internal operating guide,
the Manual on the Social Security Administration Hearings,
Appeals, and Litigation Law (“HALLEX”).

(Id.)

Finally,

plaintiff argues that ALJ Strauss obtained Dr. Spindell’s
testimony against the order of the Appeals Council.

(Id.)

In response, the Commissioner argues that ALJ Strauss
was justified in holding a supplementary hearing and having Dr.
Spindell testify because “further medical expert testimony” was
needed to adjudicate the case.

(See ECF No. 15, Memorandum of

Law in Support of the Defendant’s Cross-Motion for Judgment on
the Pleadings, dated 1/31/2011 (“Def. Mem.”) at 23.)

The

Commissioner contends that Dr. Gussoff was unclear in his
discussion of the evidence and “unable to explain the basis for
his opinion,” and therefore Dr. Spindell’s testimony was needed
to clarify “the central issue in the case: plaintiff’s spine
impairment.”

(Id.)

The Regulations governing proceedings relating to
disability claims clearly permit an ALJ to consider the opinion
of more than one medical expert.

28

See 20 C.F.R. § 404.1526(4)(c)

(“When we determine if your impairment medically equals a
listing, we consider . . . the opinion given by one or more
medical or psychological consultants designated by the
Commissioner.”).

Additionally, HALLEX section I-2-5-34 provides

that an ALJ may need to obtain medical expert testimony:
(1) when the ALJ is determining whether a claimant’s
impairment(s) meets a listed impairment(s); or (2)
when the medical evidence is conflicting or confusing;
or (3) when the ALJ desires expert medical opinion
regarding the onset of an impairment.
HALLEX § I-2-5-34(A) (Sept. 28, 2005).

Plaintiff argues

that HALLEX section I-2-5-45, entitled “Action When ALJ
Receives New Evidence After a Medical Expert Has Provided
an Opinion” is controlling here.
at 19.)

(See ECF No. 13, Pl. Mem.

By its own terms, however, HALLEX section I-2-5-45

applies only when an ALJ has received new evidence after a
medical expert has already testified.
45 (Sept. 28, 2005).

See HALLEX § I-2-5-

As no new evidence was introduced

after Dr. Gussoff testified, HALLEX section I-2-5-45 is
inapplicable here. 21

21

In addition, courts in the Eastern District of New York have held that “a
failure to follow procedures outlined in HALLEX does not constitute legal
error.” Grosse v. Comm’r of Soc. Sec., No. 08-CV-4137, 2011 WL 128565, at *5
(E.D.N.Y. Jan. 14, 2011) (citation omitted); see also Harper v. Comm’r of
Soc. Sec., No. 08-CV-3803, 2010 WL 5477758, at *4 (E.D.N.Y. Dec. 30, 2010).
Although the Second Circuit has not decided the issue, “other circuits have
held that ‘HALLEX’ has no legal force and is not binding.” Peck v. Astrue,
No. 07-CV-3762, 2010 WL 3125950, at *10 (E.D.N.Y. Aug. 6, 2010) (citing
Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003)). But see Newton v.
Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (noting that although the HALLEX
does not “carry the authority of law,” agencies should follow their own

29

The Regulations also provide that the ALJ “may
take additional action that is not inconsistent with the
Appeals Council’s remand order.”

20 C.F.R. § 404.977(b).

In its September 9, 2005 order, the Appeals Council
instructed ALJ Strauss to “[g]ive further consideration to
the treating source opinions . . . [and] [o]btain evidence
from a medical expert (internist) to clarify the nature and
severity of the claimant’s impairments.”

(Tr. at 57.)

After complying with this order by holding an initial
hearing with Dr. Gussoff, a board certified internist, ALJ
Strauss determined that “it [was] necessary [to hold]
another supplemental hearing.”

(Id. at 25.)

In

particular, ALJ Strauss believed “it was more appropriate
to schedule a second hearing to have an orthopedic
specialist testify” because the medical records at issue
related to plaintiff’s orthopedic impairments.

(Id. at 25,

214.)
Here, ALJ Strauss’s decision to seek and consider Dr.
Spindell’s testimony was “not inconsistent with the Appeals
Council’s remand order,” as she did initially have an internist
testify.

See 20 C.F.R. § 404.977(b).

Additionally, plaintiff

has failed to cite to any case law, and the court has found no

procedures even when they are “more rigorous than otherwise would be
required.” (quoting Hall v. Schweiker, 660 F.2d 116, 199 (5th Cir. 1981))).

30

authority, to suggest that the ALJ may not introduce an
additional medical expert to testify at a supplemental hearing.
To the contrary, in DeJesus v. Astrue, 762 F. Supp. 2d 673, 693
(S.D.N.Y. 2001), for example, neither party nor the district
court raised as a possible basis for remand the fact that the
ALJ held a supplementary hearing at which a second medical
expert testified.

Accordingly, the court finds that ALJ Strauss

did not err in holding a supplementary hearing or seeking the
testimony of Dr. Spindell.
2. The ALJ’s finding that plaintiff did not equal
Medical Listing 1.04A was supported by
substantial evidence in the record.
Next, plaintiff contends that ALJ Strauss erred by
concluding that plaintiff’s impairments did not “equal” the
spine disorder impairment in Medical Listing 1.04A because her
findings were not supported by substantial evidence in the
record and she did not offer good reasons for her conclusion.
(ECF No. 13, Pl. Mem. at 18.)

The court disagrees and finds

that the ALJ’s decision was supported by substantial evidence.
At step three of the sequential analysis, the ALJ must
determine whether a claimant has an impairment that “meets or
equals” one of the Medical Listings in Appendix 1 of Part 404,
Subpart P of the Regulations.

20 C.F.R. § 404.1520(a)(4)(iii).

As relevant here, Medical Listing 1.04A, provides as follows:

31

Disorders of the spine (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
spinal
stenosis,
osteoarthritis,
degenerative
disc
disease,
facet
arthritis,
vertebral
fracture),
resulting
in
compromise of a nerve root (including the cauda
equine) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuroanatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy associated
muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement
of the lower back, positive straight-leg raising
test 22 (sitting and supine).
20 C.F.R. Part 404, Subpart P, Appendix 1 § 1.04A.

“Thus, in

order to satisfy this listing, plaintiff must establish that (1)
she has a disorder of the spine which compromises a nerve root
or the spinal cord, and (2) that this disorder is manifested by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg
raising test (sitting and supine).”

McKinney v. Astrue, No. 05-

CV-174, 2008 WL 312758, at *4 (N.D.N.Y. Feb. 1, 2008).
Even if a claimant’s impairment does not meet the
specific criteria of a Medical Listing, it still may equal the
Listing.

20 C.F.R. § 404.1526(a).

22

The Commissioner will find

“The straight leg test (“SLR”) is used to detect nerve root pressure,
tension or irritation. A positive SLR requires the reproduction of pain at
an elevation of less than 60 degrees. A positive SLR is said to be the most
important indication of nerve root pressure.” Mattison v. Astrue, No. 07-CV1042, 2009 WL 3839398, at *4 n.10 (N.D.N.Y. Nov. 16, 2009) (citing Andersson
& McNeill, Lumbar Spine Syndromes 78-79 (Springer-Verlag Wein 1989)).

32

that a claimant’s impairment is medically equivalent to a
Medical Listing if: (1) the claimant has other findings that are
related to his or her impairment that are equal in medical
severity; (2) the claimant has a “closely analogous” impairment
that is “of equal medical significance to those of a listed
impairment;” or (3) the claimant has a combination of
impairments that are medically equivalent.
§ 404.1526(b)(1)-(3).

Id.

“For a claimant to qualify for benefits

by showing that his unlisted impairment, or combination of
impairments, is ‘equivalent’ to a listed impairment, he must
present medical findings equal in severity to all the criteria
for the one most similar listed impairment.”

Sullivan v.

Zebley, 493 U.S. 521, 531 (1990); see also 20 C.F.R.
§ 404.1526(a) (“[A claimant’s] impairment(s) is medically
equivalent to a listed impairment in appendix 1 if it is at
least equal in severity and duration to the criteria of any
listed impairment.”).

Further, the medical reports must

indicate physical limitations based upon actual observations
and/or clinical tests, rather than the claimant’s subjective
complaints.
§ 1.00(D).

20 C.F.R. Part 404, Subpart P, Appendix 1
In evaluating whether an impairment is equivalent to

a Medical Listing, the ALJ “will consider all of the evidence in
the record, except for factors of age, education and work

33

experience.”

Lamond v. Astrue, No. 5:06-CV-0838, 2010 WL

3023901, at *5 (N.D.N.Y. Aug. 2, 2010); 20 C.F.R. § 404.1526(c).
Here, the ALJ found, based on substantial evidence and
correct legal principles, that plaintiff’s impairments did not
meet or equal a listed impairment during the insured period. 23
(See Tr. at 30-31); see also Lamond, 2010 WL 3023901, at *6
(upholding ALJ’s decision that plaintiff’s impairment did not
meet or equal a listed impairment because it was supported by
substantial evidence and correct legal principles).

In reaching

this conclusion, ALJ Strauss relied on the testimony of Dr.
Spindell, rather than that of Dr. Gussoff.

(See Tr. at 31.)

Although ALJ Strauss noted that “Dr. Gussoff opined the
claimant’s impairments equaled section 1.04A of the Listings of
Impairments,” (id. at 30), the ALJ explained that Dr. Spindell
“ha[d] more appropriate expertise as . . . a board certified
orthopedist,” (id.).

Dr. Gussoff, on the other hand, was a

“board certified in hematology/oncology and internal medicine,”
an area not specific to plaintiff’s claimed impairments.
at 30; see also id. at 624.)

(Id.

Additionally, ALJ Strauss relied

on Dr. Spindell’s testimony because she found that Dr. Gussoff’s
opinion was neither credible nor supported by the medical
evidence in the record.

(Id. at 27, 30-31.)

23

Further, contrary

The parties agree that plaintiff’s impairments did not meet Listing 1.04A.
(See ECF No. 13, Pl. Mem. 18; ECF No. 15, Def. Mem. at 20.)

34

to plaintiff’s assertion that ALJ Strauss failed to obtain any
testimony from Dr. Spindell regarding why plaintiff did not
equal Listing 1.04A, (see ECF No. 13, Pl. Mem. at 18), the court
notes that ALJ Strauss did, in fact, ask Dr. Spindell whether
plaintiff “met listing level severity or equaled listing level
severity” during the relevant time period, (Tr. at 641).

Dr.

Spindell responded that plaintiff did not meet or equal the
listing, adding that “there was nothing that showed an acute
neurological deficit involving motor strength and . . . there
were no neurological deficits . . . and the findings showed no
gross deformity.”

(Id. at 641-42.)

Thus, Dr. Spindell’s

testimony was not limited to whether plaintiff met Medical
Listing 1.04A, but also touched on whether plaintiff equaled the
Listing, and the ALJ appropriately relied on his testimony in
concluding that the Listing was not equaled.
The medical evidence in the record further supports
ALJ Strauss’s finding that plaintiff’s spinal impairment did not
equal Medical Listing 1.04A between August 17, 2002 and March
31, 2003, the date last insured.

Although there is evidence of

compromise of a nerve root and some limitation of motion of
plaintiff’s spine, substantial evidence supports the ALJ’s
finding that plaintiff’s impairments or combination of
impairments did not satisfy the remaining necessary criteria.

35

An MRI of plaintiff’s lumbosacral spine performed on
June 9, 2000, nearly two years prior to the relevant time
period, showed disc degeneration, bulging, and herniation
encroaching on the right neural foramen with impression on the
thecal sac.

(Id. at 328.)

Similarly, an x-ray of plaintiff’s

cervical spine in December 2002 revealed slight disc
degeneration.

(Id. at 391.)

These changes, along with

plaintiff’s repeated complaints of “radiating” pain down her
left arm and leg, (id. at 389-91, 496), appear to constitute
“evidence of nerve root compression characterized by neuroanatomic distribution of pain.”

See Davis v. Astrue, No. 6:09-

CV-186, 2010 WL 2545961, at *4-5 (N.D.N.Y. June 3, 2010)
(remanding for further explanation by ALJ as to why plaintiff
did not meet Medical Listing 1.04A where MRI revealed disc
herniation in close proximity to nerve root sheaths and
degenerative disc change with complaints of radiating pain).

On

the other hand, the June 2000 MRI also showed that the cauda
equina was “normal in position and appearance.”

(Tr. at 328.)

Further, as Dr. Spindell testified, because the disc
encroachment found on plaintiff’s right side would not cause
plaintiff’s pain on her left side, the MRI results were less
significant.

(Id. at 636-37, 645.)

With respect to the second element of Medical Listing
1.04A, limitation of motion of the spine, the medical evidence

36

is even less supportive of plaintiff’s claim.

In a March 10,

2000 physical examination, Dr. Lippman found that plaintiff had
“full range of motion of the hips, knees and ankles,” did not
have pain with extension, and was able to heel walk and toe walk
easily.

(Id. at 285.) 24

On December 16, 2002, which was two and

a half years later and during the relevant time period, Dr.
Lippman noted that plaintiff had reduced cervical range of
motion, although she was still able to heel-toe walk and her
flexion was “ok.”

(Id. at 347-48, 389.)

During a visit with

Dr. Kaplan on April 2, 2003, plaintiff’s neck rotation was
limited to 80 degrees bilaterally.

(Id. at 392.)

Dr. David

Steiner, a neurologist, examined plaintiff on January 13, 2005,
nearly two years after the date last insured, and found that she
had decreased range of motion in her cervical spine.
500.)

(Id. at

In March 2005, however, Dr. Lippman found that while

plaintiff had some limitation in rightward rotation, her
leftward rotation, flexion, and extension were normal and she
had full range of motion in her upper extremities.

(Id. at

496.)
The third requirement of Medical Listing 1.04A is
“motor loss (atrophy with associated muscle weakness or muscle

24

The court notes that ALJ Strauss incorrectly attributed the March 2000
examination report to Dr. Kaplan. (See Tr. at 32.) In fact, Dr. Lippman
examined plaintiff and wrote a letter to Dr. Kaplan summarizing his findings.
(See id. at 285.)

37

weakness) accompanied by sensory or reflex loss.”

According to

the medical records, plaintiff did not suffer from significant
motor or sensory loss or atrophy before or during the insured
period, or even up to two and a half years thereafter, thus
weighing against a finding of equivalence.

In March 2000, Dr.

Lippman found that plaintiff had “[s]trength [of] 5/5 in all
major muscle groups” and her sensation was intact.
285.)

(Id. at

Similarly, a physical examination on January 4, 2005

showed no atrophy or weakness and motor and sensory nerve
studies were “normal for latency, amplitude and nerve conduction
velocity.”

(Id. at 387, 384.)

Although an EMG study performed

on the same date showed some sensory defect, as Dr. Spindell
explained, the defect “correlated only to the left first digit,
not to the hand.”

(Id. at 506, 639-40.)

Moreover, on January

13, 2005, Dr. Steiner assessed plaintiff’s motor strength as
“grossly 5/5,” except for her left elbow and shoulder, which
were 4+/5.

(Id. at 501.)

Dr. Steiner further found that

plaintiff had “normal tone and no atrophy.”

(Id.)

In March

2005, plaintiff complained of weakness to Dr. Lippman, but he
found that her strength was 5/5 in all major muscle groups, her
sensation was intact, her reflexes were 2+ and symmetric, and
her tone, coordination, gait, and balance were normal.
496.)

(Id. at

Although in October 2007, more than four years after the

insured period in question, Dr. Zaretsky found that plaintiff’s

38

cervical and lumbosacral range of motion was severely limited
and her left calf had atrophied (id. at 426), “[e]vidence of an
impairment that reached disabling severity after the expiration
of an individual’s insured status cannot be the basis for a
disability determination, even though the impairment itself may
have existed before the individual’s insured status expired.”
Mattison v. Astrue, No. 07-CV-1042, 2009 WL 3839398, at *5
(N.D.N.Y. Nov. 16, 2009).

Lastly, the record reveals no

instance during which plaintiff exhibited positive straight leg
raising.

(See Tr. at 285, 426.)
Although ALJ Strauss could have been more explicit in

her reasoning with respect to plaintiff’s failure to equal
Medical Listing 1.04A, this court may, and has, “look[ed] to
other portions of the ALJ’s decision and to clearly credible
evidence” in the record supporting the ALJ’s conclusion.
Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112-13 (2d.
Cir. 2010) (holding that there is no need to remand for
clarification if this is not a case “in which we would be unable
to fathom the ALJ’s rationale in relation to evidence in the
record”).

Thus, in light of the aforementioned evidence, the

court finds that ALJ Strauss’s conclusion that plaintiff did not
have an impairment or combination of impairments that medically
equaled Medical Listing 1.04A was in accord with substantial
evidence in the record and remand is not warranted.

39

B. The Treating Physician Rule
Plaintiff asserts that ALJ Strauss erred by failing to
assign her treating physicians’ opinions controlling weight.
Pursuant to the Regulations, a treating source is “your own
physician . . . or other acceptable medical source who provides
you, or has provided you, with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with
you.”

20 C.F.R. § 404.1502; see also Sokol v. Astrue, No. 05-

CV-6631, 2008 WL 4899545, at *12 (S.D.N.Y. 2008) (quoting
Schisler v. Bowen, 851 F.2d 43, 46 (2d Cir. 1988)).

The

Regulations also provide that the medical opinion of a treating
physician “on the issue(s) of the nature and severity of [the]
impairment(s)” will be given controlling weight if that opinion
“is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] record.”

20 C.F.R.

§ 404.1527(d)(2); see also Hilsdorf v. Comm’r of Soc. Sec., 724
F. Supp. 2d 330, 343 (E.D.N.Y. 2010)).

Further, “a treating

physician’s retrospective opinion is entitled to controlling
weight unless it is contradicted by other medical evidence or
‘overwhelmingly compelling’ non-medical evidence.”

Clobridge v.

Astrue, 5:07-CV-691, 2010 WL 3909500, at *7 (N.D.N.Y. Sept. 30,
2010) (quoting Rivera v. Sullivan, 923 F.2d 964, 968-69 (2d Cir.
1991)).

The opinions of treating physicians are given

40

controlling weight because “these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [the] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical evidence alone or from
reports of individual examinations.”

20 C.F.R.

§ 404.1527(d)(2).
On the other hand, in situations where “the treating
physician issued opinions that [were] not consistent with other
substantial evidence in the record, such as the opinions of
other medical experts,” the treating physician’s opinion “is not
afforded controlling weight.”

Halloran v. Barnhart, 362 F.3d

28, 32 (2d Cir. 2004); see also Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (“When other substantial evidence in the
record conflicts with the treating physician’s opinion . . .
that opinion will not be deemed controlling.”).

Additionally,

findings that “a claimant is disabled and cannot work . . . are
reserved to the Commissioner,” and a treating physician’s
opinion on these points is not afforded controlling weight.

Id.

at 133 (internal citations omitted); see also 20 C.F.R.
§ 404.1527(e)(1).

Thus, the ALJ “considers the data that

physicians provide but draws [his or her] own conclusions as to
whether those data indicate disability.”
133.

Snell, 177 F.3d at

Nonetheless, an ALJ “cannot reject a treating physician’s

41

diagnosis without first attempting to fill any clear gaps in the
administrative record.”

Scott, 2010 WL 2736879, at *9 (quoting

Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)); see also
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“[E]ven if
the clinical findings were inadequate, it was the ALJ’s duty to
seek additional information from [the treating physician] sua
sponte.”).
When controlling weight is not given to a treating
physician’s opinion, the Regulations require the ALJ to
“comprehensively set forth reasons for the weight assigned to a
treating physician’s opinion.”

Halloran, 362 F.3d at 33; see

also Jeffcoat v. Astrue, No. 09-CV-5276, 2010 WL 3154344, at *14
(E.D.N.Y. Aug. 6, 2010) (remanding because the ALJ failed to
comprehensively set forth his reasons for the weight assigned to
the treating physician’s opinions because he failed to state
what weight he accorded to the opinion or to consider the
guiding factors); 20 C.F.R. § 404.1527(d)(2) (the Commissioner
“will always give good reasons in [its] notice of determination
or decision for the weight [given to a] treating source’s
opinion”) (emphasis added).
Courts have not “hesitate[d] to remand [cases] when
the Commissioner has not provided ‘good reasons’ for the weight
given to a treating physician’s opinion.”
33.

Halloran, 362 F.3d at

Additionally, the court should “continue remanding when

42

[it] encounter[s] opinions from ALJ’s that do not
comprehensively set forth reasons for the weight assigned to a
treating physician’s opinion.”

Id.

The Regulations set forth

the following factors that ALJs must apply to determine how much
weight should be given to a treating physician’s opinion: “(i)
the frequency of examination and the length, nature and extent
of the 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 tend to support or
contradict the opinion.”

Id. at 32 (citing 20 C.F.R.

§ 404.1527(d)).
The court reviews the treating physicians’ findings as
follows:
1. Stuart D. Kaplan, M.D.
In a letter dated June 1, 2005 to plaintiff’s counsel,
Dr. Kaplan stated that he had treated plaintiff since 1999 for
“multiple rheumatologic problems including osteoarthritis,
lumbosacral and cervical radiculopathies, carpal tunnel syndrome
and fibromyalgia syndrome.”

(Tr. at 393.)

The doctor further

stated that plaintiff “suffers from chronic severe pain in . . .
her neck, back, arms and legs . . . [and] [s]he also suffers
from numbness in her hands.”

(Id.)

43

Dr. Kaplan concluded that

plaintiff would be “unable to perform any activities requiring
prolonged standing, walking, sitting or repetitive use of her
arms or hands” and that she was “totally disabled and not
capable of engaging in any meaningful employment.”
94.)

(Id. at 393-

On June 2, 2005, Dr. Kaplan also filled out a multiple

impairments questionnaire, making specific findings about
plaintiff’s impairments and inability to work.

(See id. at 395-

402.)
In her decision denying plaintiff’s application for
SSD, ALJ Strauss acknowledged Dr. Kaplan’s opinion regarding
plaintiff’s physical limitations and the doctor’s assessment
that plaintiff was “totally disabled,” but found that Dr.
Kaplan’s opinion was not entitled to controlling or significant
weight.

(Id. at 32-33.)

Although ALJ Strauss considered many

of the relevant factors identified in the Regulations, remand is
nevertheless appropriate because she failed to support her
decision with good reasons based on medical evidence in the
record.
ALJ Strauss assessed the length and frequency of
plaintiff’s treatment, and the nature and extent of plaintiff’s
treating relationship with Dr. Kaplan.

Noting that Dr. Kaplan

“saw the claimant twice in 1999, three times in 2000, once in
2001, 2002 and 2003, twice in 2004 and 2005 and once in 2006,”
the ALJ concluded that “[Dr. Kaplan] did not treat her

44

regularly.”

(Id. at 32.)

ALJ Strauss also considered and found

that Dr. Kaplan’s opinion about certain impairments was neither
supported by, nor consistent with, the medical record. 25

For

example, the ALJ’s decision indicated that although “Dr.
Kaplan’s notes show tender points on various dates, he rarely
makes positive range of motion findings, particularly of the
lumbosacral and cervical spine.”

(Id.)

The ALJ also noted that

Dr. Kaplan’s “treatment notes do not show persistent complaints
of pain radiating from the neck to the arm or inability to use
hand/fingers in the period at issue.”

(Id.)

In addition, ALJ

Strauss found that although the June 2, 2005 multiple
impairments questionnaire “states symptoms and limitations apply
since June 1999 . . . the records do not establish carpal tunnel
syndrome, of which Dr. Kaplan says [plaintiff] has symptoms.”
(Id.)

Indeed, ALJ Strauss noted, an EMG study of plaintiff’s

upper extremities performed as late as January 2005 did not find
carpal tunnel syndrome.

(Id.)

ALJ Strauss also stated that the

first time fibromyalgia was diagnosed was in June 2005, further

25

The court notes that in ALJ Strauss’s justification for discounting the
opinion of Dr. Kaplan, the ALJ erroneously referred to a March 2000 report
that was actually prepared by Dr. Lippman. Specifically, the ALJ’s decision
stated that “[o]n March 2000 Dr. Kaplan reports the claimant was complaining
of pain, but no stiffness, paresthesia or weakness. On physical examination
[Dr. Kaplan] reports spasm of the lumbosacral spine, but straight leg raising
was negative and there was pain with flexion but claimant was able to heeltoe walk.” (Tr. at 32.) The report referred to is a letter dated March 10,
2000 from Dr. Lippman to Dr. Kaplan. (See id. at 285.) Although Dr.
Lippman’s physical examination notes, referred to by ALJ Strauss, cannot be
the basis for discounting Dr. Kaplan’s opinion, the court will consider these
notes in its analysis of Dr. Lippman’s opinion below.

45

suggesting that Dr. Kaplan’s opinion as to plaintiff’s
longstanding condition of fibromyalgia was unsupported.

(Id.)

Moreover, ALJ Strauss found Dr. Kaplan’s opinion of plaintiff’s
severe impairments inconsistent with the conservative treatment
he had prescribed over a period of six years.

(Id.)

ALJ Strauss found that the extreme limitations Dr.
Kaplan ascribed to plaintiff on the questionnaire would mean
that plaintiff was bedridden and thus were inconsistent with
plaintiff’s testimony of her daily activities.

(Id.)

The ALJ

further stated, “Dr. Kaplan’s limitations do not mathematically
add up if the claimant could not sit continuously and had to get
up every ½ hour and move around for 10 minutes before she could
sit again.”

(Id.)

ALJ Strauss also noted that some of the

doctor’s answers on the questionnaire were “totally speculative,
without attribution to objective findings in the record.”

(Id.)

The court finds that the reasons given by ALJ Strauss
are inadequate to support the ALJ’s decision to discount Dr.
Kaplan’s testimony.

First, the court finds that the frequency

of Dr. Kaplan’s treatment of plaintiff weighs in favor, and not
against, reliance on Dr. Kaplan’s opinion.

Although plaintiff

saw Dr. Kaplan only once during the relevant time period, he
treated her over the course of several years, including
immediately before and after the relevant time period.

There is

thus no question that Dr. Kaplan was plaintiff’s treating

46

physician throughout the relevant time period.

See Schisler,

851 F.2d at 46 (defining a treating physician as “a claimant’s .
. . own physician . . . who has provided the [claimant] with
medical treatment or evaluation and who has or had an ongoing
treatment and physician-patient relationship with the
individual.”); see also 20 C.F.R. § 404.1502.

Cf. Arnone v.

Bowen, 882 F.2d 34, 41 (2d Cir. 1989) (finding that where the
claimant’s claim depended on showing continuous disability from
1977-1980, a doctor who treated him several times in 1974 and
1975, and once in 1987, was not a “treating physician” within
the meaning of the rule, because “there simply was no ongoing
physician-treatment relationship between” the claimant and the
doctor during the relevant period and the doctor was therefore
“not in a unique position to make a complete and accurate
diagnosis”) (internal quotations and citations omitted).
In addition, an ALJ may not discount the opinion of a
treating physician “merely because he has recommended a
conservative treatment regimen.”

Burgess, 537 F.3d at 129; see

also Shaw, 221 F.3d at 134 (ruling that “the district court
improperly characterized the fact that [the treating physician]
recommended only conservative [treatment] as substantial
evidence that plaintiff was not physically disabled during the
relevant period”).

Further, the fact that a claimant performs

daily activities cannot controvert medical evidence that she is

47

disabled.

(See ECF No. 13, Pl. Mem. at 21-22.)

See e.g.,

Murdaugh v. Sec’y of Dep’t of Health & Human Servs., 837 F.2d
99, 102 (2d Cir. 1988) (“[T]hat appellant receives conservative
treatment, waters his landlady’s garden, occasionally visits
friends and is able to get on and off an examination table can
scarcely be said to controvert the medical evidence”).

Indeed,

it is well-settled that the performance of basic daily
activities does not necessarily contradict allegations of
disability, “as people should not be penalized for enduring the
pain of their disability in order to care for themselves.”
Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000); see
also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“We have
stated on numerous occasions that ‘a claimant need not be an
invalid to be found disabled’ under the Social Security Act.”
(quoting Williams, 859 F.2d at 260)).
Finally, although ALJ Strauss stated that fibromyalgia
was not diagnosed until June 2005, the court finds that the
medical records demonstrate otherwise.

Indeed, Dr. Kaplan’s

treatment notes reflect a diagnosis of fibromyalgia on October
18, 2000, July 16, 2001, and April 2, 2003.

(See Tr. at 392,

439, 444, 448.)
Accordingly, because ALJ Strauss’s reasoning in
support of her decision not to afford controlling or significant

48

weight to Dr. Kaplan’s opinion was flawed and insufficient,
remand is appropriate.
2. Eric S. Lippman, M.D.
ALJ Strauss also declined to assign Dr. Lippman’s
opinion controlling or significant weight.

(Id. at 33.)

However, because ALJ Strauss failed to identify good reasons for
doing so, remand is required.
As noted, an ALJ must provide good reasons for
refusing to assign controlling weight to a treating physician’s
opinion.

See 20 C.F.R. § 404.1527(d)(2).

Good reasons include

those listed in the Regulations at 20 C.F.R. § 404.1527(d)(2)(6).

Additionally, as mentioned above, performing routine daily

activities cannot alone controvert medical evidence that an
individual is disabled.

Murdaugh, 837 F.2d at 102.

ALJ Strauss’s decision to disregard Dr. Lippman’s
opinion was based entirely on plaintiff’s ability to perform
daily activities and failed to discuss any of the factors
mentioned in the Regulations.

Specifically, ALJ Strauss found

that Dr. Lippman’s analysis was “inconsistent with claimant’s
own testimony that she cooks, cleans the house, walks to the
store and walks her daughter 10 blocks to school” as well as
plaintiff’s testimony “that she has no problem with personal
care, engages in social activities with her family, attends
church weekly, and cleans her house.”

49

(Tr. at 33.)

Additionally, ALJ Strauss noted that Dr. Lippman’s opinion that
“claimant’s pain was limiting her ability to perform activities
of daily living and work,” was not entitled to weight because
such issues are “reserved to the Commissioner.”

(Id.)

ALJ

Strauss thus concluded that “whatever limitation [plaintiff] may
have had, the record does not show her limitations prevent her
from performing basic work activities.”

(Id.)

As noted above, in her discussion of Dr. Kaplan’s
treatment notes, ALJ Strauss attributed to Dr. Kaplan certain
purportedly inconsistent statements which, in fact, appeared in
Dr. Lippman’s report dated March 10, 2000.
285.)

(See id. at 32,

Specifically, the ALJ’s decision stated that “[i]n March

2000 Dr. Kaplan reports the claimant was complaining of pain,
but no stiffness, paresthesia or weakness.

On physical

examination he reports spasm of the lumbosacral spine, but
straight leg raising was negative and there was pain with
flexion but claimant was able to heel-toe walk.”

(Id. at 32.)

Even when properly attributed to Dr. Lippman, however, any
possible inconsistencies in these notes do not provide
sufficient support for the ALJ’s decision not to afford Dr.
Lippman’s opinion significant weight.

Indeed, the ALJ has

failed to engage in the analysis required by the Regulations to
determine how much weight to give Dr. Lippman’s opinion.
C.F.R. § 404.1527(d).

See 20

Where an ALJ has failed to “adequately

50

explain his reasons . . . for the weight [given] to the
[treating physician’s] opinion,” remand is required.
2010 WL 2736879, at *17.

Scott,

Accordingly, ALJ Strauss’s failure to

provide adequate explanations for her decision not to afford Dr.
Lippman’s opinion controlling or significant weight requires
remand.
3. Robert Zaretsky, M.D.
Although plaintiff argues that ALJ Strauss erred in
assigning no weight to Dr. Zaretzky’s opinion, the court finds
that ALJ Strauss’s decision was adequately supported and this is
not a basis for remand.
An ALJ is “free to conclude that the opinion of a
[non-treating source] was not entitled to any weight,” so long
as the ALJ explains that decision.

Canales v. Comm’r of Soc.

Sec., 698 F. Supp. 2d 335, 344 (E.D.N.Y. 2000).

The Regulations

define a “treating source” as “your own physician, psychologist,
or other acceptable medical source who provides you, or has
provided you, with medical treating or evaluation and who has,
or has had, an ongoing treatment relationship with you.”
C.F.R. § 404.1502.

20

An “ongoing treatment relationship” is a

relationship where “the medical evidence establishes that you
see, or have seen, the source with a frequency consistent with
the accepted medical practice or the type of treatment and/or
evaluation required for your medical condition(s).”

51

Id.

The

Second Circuit has defined a treating physician as “a claimant’s
. . . own physician . . . who has provided the [claimant] with
medical treatment or evaluation and who has or had an ongoing
treatment and physician-patient relationship with the
individual.”

Schisler, 851 F.2d at 46.

Further, a physician

who sees a patient only once does not have a chance to develop
an ongoing relationship with the patient and thus is generally
not considered a treating physician.

See Garcia v. Barnhart,

No. 01-CV-8300, 2003 WL 68040, at *5 n.4 (S.D.N.Y. Jan. 7,
2003).
ALJ Strauss’s decision not to afford controlling
weight to Dr. Zaretsky’s opinion was based on numerous factors.
First, as ALJ Strauss noted, Dr. Zaretsky saw plaintiff on only
one occasion, four years after the relevant time period.
at 33.)

(Tr.

Indeed, plaintiff’s counsel conceded in the October 14,

2008 hearing before ALJ Strauss that Dr. Zaretsky was “not a
treating physician.”

(Id. at 659.)

Further, ALJ Strauss found

inconsistencies both within Dr. Zaretsky’s testimony and as
compared to the record as a whole.

For example, ALJ Strauss

found that although Dr. Zaretsky “checked off that claimant had
no significant limitations in doing repetitive reaching,
handling, fingering and lifting,” this finding was inconsistent
with the doctor’s “limitation for lifting 10-15 pounds and also
with his check-offs for significant moderate limitations in

52

grasping, turning and twisting objects.”

(Id. at 33.)

Furthermore, ALJ Strauss noted that although “claimant was still
working in 1998, [and] did not initially claim to be disabled
until June 1999 . . . [Dr. Zaretsky] states claimant has been
disabled since 1998.”

(Id.)

Accordingly, because Dr. Zaretsky was not a treating
physician, ALJ Strauss was warranted in not assigning his
opinion controlling or significant weight.
§ 404.1527(d).

See 20 C.F.R.

Additionally, ALJ Strauss provided good reasons

for rejecting Dr. Zaretsky’s opinion and affording it no weight
at all.

See id.

Thus, the court will not remand based on the

weight assigned to Dr. Zaretsky’s opinion.
C. The ALJ Failed to Properly Evaluate Plaintiff’s
Credibility.
ALJ Strauss found that plaintiff’s “statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not credible . . . .”

(Tr. at 33.)

Because

ALJ Strauss failed adequately to assess the credibility of
plaintiff’s statements, remand is required.
In determining whether an individual is disabled under
the Act, the ALJ “must determine whether a claimant who has a
severe impairment nonetheless has the ‘residual functional
capacity (“RFC”)’ to perform work available to him.”

Genier,

606 F.3d at 49 (citing 20 C.F.R. §§ 404.1520, 404.1560).

53

The

“subjective element of pain” has been held by the Second Circuit
to be an “important factor” in determining disability.

Mimms v.

Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (citing Ber v.
Celebrezze, 332 F.2d 293, 298, 300 (2d Cir. 1964)).

Thus, in

addition to “objective medical facts, the ALJ must consider
subjective evidence of pain and disability in [his or her]
‘severity’ analysis.”

Temkin v. Astrue, No. 09-CV-4246, 2011 WL

17523, at *7 (E.D.N.Y. Jan. 4, 2011).

The ALJ has the

discretion, however, to “evaluate the credibility of a claimant
and arrive at an independent judgment, in light of medical
findings and other evidence.”

Pietrunti v. Dir., Office of

Worker’s Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997)
(citations omitted).
The Regulations provide a two-step process for
evaluating a claimant’s assertions of pain and other
limitations.

At step one, the ALJ must decide whether the

claimant suffers from a medically determinable impairment that
could reasonably be expected to produce the symptoms alleged.
20 C.F.R. § 404.1529(a)-(b).

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 the record.

Id. § 404.1529(a).

54

Social Security Ruling (“S.S.R.”) 96-7p sets forth
seven factors that an ALJ must consider in determining the
credibility of a claimant’s statements about his or her symptoms
and the effects of his or her impairments:
(1) The individual’s daily activities; (2)
The
location,
duration,
frequency,
and
intensity of the individual’s pain or other
symptoms; (3) Factors that precipitate and
aggravate
the
symptoms;
(4)
The
type,
dosage, effectiveness, and side effects of
any medication the individual takes or has
taken to alleviate pain or other symptoms;
(5) Treatment, other than medication, the
individual receives or has received for
relief of pain or other symptoms; (6) Any
measures other than treatment the individual
uses or has used to relieve pain or other
symptoms . . . ; and (7) Any other factors
concerning
the
individual’s
functional
limitations and restrictions due to pain or
other symptoms.
S.S.R. 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also 20
C.F.R. § 404.1529(c); Wright v. Astrue, No. 06-CV-6014, 2008 WL
620733, at *3 (E.D.N.Y. Mar. 5, 2008).

Where the ALJ fails

sufficiently to explain a finding that the claimant’s testimony
was not entirely credible, remand is appropriate.

See, e.g.,

Tornatore v. Barnhart, No. 05-CV-6858, 2006 WL 3714649, at *6
(S.D.N.Y. Dec. 12, 2006).
ALJ Strauss’s finding that plaintiff’s allegations
were not credible was based on several observations.

First, the

ALJ noted that plaintiff “has never been hospitalized for back
or neck pain and was treated conservatively.”

55

(Tr. at 33.)

Next, she emphasized that plaintiff continued to perform typical
daily activities such as personal care, cooking, and attending
church weekly.

(Id. at 34.)

Finally, the ALJ stated that the

record lacks “quantitative evidence of any significant motor
loss with muscle weakness and sensory reflex loss along with
appropriate radicular distribution.”

(Id.)

Based on these

observations, ALJ Strauss concluded, “[t]he objective and
clinical findings do not document the presence of impairments
which would prevent the claimant from engaging in all work
related activities.”

(Id.)

In reaching her conclusion, ALJ Strauss considered
some, but not all of the mandatory factors set forth in the
Regulations.

See S.S.R. 96-7p, 1996 WL 374186, at *3; 20 C.F.R.

§ 404.1529(c).

It is clear from the record that ALJ Strauss

considered the daily activities as well as the frequency and
intensity of plaintiff’s pain and symptoms.

(See Tr. at 33-34.)

She also discussed the fact that plaintiff received treatment,
“other than medication,” in the form of physical therapy.
id. at 28, 32.)

(See

ALJ Strauss failed, however, to address what

factors, if any, precipitated and aggravated plaintiff’s
symptoms, including, for example, plaintiff’s testimony that
walking ten blocks to drop her daughter off at school gave her
headaches and made her very tired.

(Id. at 735.)

Similarly,

although the ALJ alluded to the fact that plaintiff was

56

prescribed certain medications and that they caused side
effects, (see id. at 28, 29, 32), she neglected to describe the
type, dosage, and effectiveness of such medication.

Finally,

ALJ Strauss failed to address additional factors that limited
and restricted plaintiff’s functionality, such as plaintiff’s
testimony that she is only able to stand 30 minutes before she
feels pain in her hips and knees.

(See id. at 734.)

Because

ALJ Strauss failed to address all of the factors set forth in
the Regulations, remand is appropriate.

See Wright, 2008 WL

620733, at *3; Tornatore, 2006 WL 3714649, at *6 (remanding
because the ALJ considered some, but not all, of the seven
factors set forth in Social Security Ruling 96-7p).
D. Request for New Administrative Law Judge
Plaintiff requests that, if the court remands the
case, the court also order the Commissioner to assign a new ALJ
to the case.

(ECF No. 13, Pl. Mem. at 29.)

The decision to

reassign a case to a new ALJ is generally left to the
Commissioner, and courts will not become involved without a good
reason.

See Henry v. Astrue, No. 07-CV-2769, 2008 WL 2697317,

at *9 (E.D.N.Y. Jul. 3, 2008) (“The selection of a new ALJ on
remand, however, has been considered to be within the discretion
of the Commissioner of the Social Security Administration.”)
(collecting cases).

Courts in this district have held that

remand to a new ALJ is appropriate “when the conduct of an ALJ

57

gives rise to serious concerns about the fundamental fairness of
the disability review process.”

Brown v. Astrue, No. CV-08-

3653, 2010 WL 2606477, at *9 (E.D.N.Y. June 22, 2010) (quoting
Sutherland v. Barnhart, 322 F. Supp. 2d 282, 292 (E.D.N.Y.
2004)).

In determining whether there is good reason, the court

should consider the following factors:
(1) a clear indication that the ALJ
will not apply the appropriate legal
standard on remand; (2) a clearly
manifested
bias
or
inappropriate
hostility toward any party; (3) a
clearly apparent refusal to consider
portions of the testimony or evidence
favorable to a party, due to apparent
hostility to that party; (4) a refusal
to weigh or consider evidence with
impartiality, due to apparent hostility
to any party.
Sutherland, 322 F. Supp. 2d at 292.

See, e.g., Falco v. Astrue,

No. CV-07-1432, 2008 WL 4164108, at *8 (E.D.N.Y. Sept. 5, 2008)
(remanding case to new ALJ where original ALJ had not fully
complied with prior order of the district court); Taylor v.
Astrue, No. CV-07-3469, 2008 WL 2437770, at *5 (E.D.N.Y. 2008)
(directing assignment to new ALJ where original ALJ “twice
committed legal error”).

Applying these factors in the instant

case, the court finds that reassignment to a new ALJ is not
warranted.

The court presumes that upon remand, the ALJ will

apply the appropriate legal standards, as discussed above.

58

CONCLUSION
For the foregoing reasons, the court denies
plaintiff’s and defendant’s cross-motions for judgment on the
pleadings and remands this case for further proceedings
consistent with this opinion.

On remand, the ALJ shall:

(1) Re-examine the opinions of plaintiff’s treating
physicians, Dr. Stuart D. Kaplan and Dr. Eric S. Lippman, and
provide sufficient explanations for the weight afforded to their
opinions.
(2) Consider all of the factors required by 20 C.F.R.
§ 404.1529(c) and S.S.R. 96-7p in determining the credibility of
plaintiff’s statements regarding her symptoms and the effects of
her impairments.
The Clerk of the Court is respectfully requested to
close the case.

SO ORDERED
Dated:

Brooklyn, New York
January 23, 2012

_______/s/__________________
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

59