Carlsen v. Colvin

Filing 17

MEMORANDUM AND ORDER granting 10 Motion for Judgment on the Pleadings; denying 12 Motion for Judgment on the Pleadings; This action is REMANDED for further proceedings consistent with this Memorandum & Order. The Clerk of Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 9/11/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
CHARLES CARLSEN,
Plaintiff,

MEMORANDUM & ORDER
13-CV-1164(JS)

-againstCAROLYN W. COLVIN, Acting Commissioner
of Social Security,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Charles E. Binder, Esq.
Law Offices of Harry J. Binder
and Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, NY 10165
For Defendant:

Loretta E. Lynch, Esq.
United States Attorney’s Office
Eastern District of New York
271-A Cadman Plaza East, 7th Floor
Brooklyn, NY 11201

SEYBERT, District Judge:
Plaintiff Charles Carlsen (“Plaintiff”) commenced this
action pursuant to Section 205(g) of the Social Securities Act, as
amended, 42 U.S.C. § 405(g), challenging defendant the Commissioner
of Social Security’s (the “Commissioner”) denial of his application
for disability insurance benefits.

Presently before the Court are

Plaintiff’s and the Commissioner’s cross-motions for judgment on
the pleadings.

For the following reasons, the Commissioner’s

motion is DENIED, Plaintiff’s motion is GRANTED, and this matter

is REMANDED to the Commissioner for further consideration in
accordance with this Memorandum and Order.
BACKGROUND
Plaintiff filed for Social Security Disability benefits
in April 2010, alleging disability since April 1, 2008.
43.)

(R. 142-

Plaintiff attributed his disability to injuries to his ankle

and leg, as well as knee impairment, hypertensive cardiovascular
disease, hypertension, other neurological disorders, and shortterm memory problems.

(R. 153.)

After his application was denied

on June 23, 2010 (R. 83-86), Plaintiff requested a hearing before
an administrative law judge (“ALJ”) (R. 45-46).

The hearing took

place on April 28, 2011 before ALJ Seymour Rayner.

(R. 47-78.)

Plaintiff was represented by counsel at the hearing and was the
only witness to testify.

(R. 49.)

The ALJ issued his decision on July 15, 2011, finding
that Plaintiff is not disabled.

(R. 22-30.)

Plaintiff sought

review of the ALJ’s decision by the Appeals Council, (R. 177-80),
and submitted additional evidence in support of his request (R.
285-95).

On

October

25,

2012,

Plaintiff’s request for review.

the

Appeals

Council

denied

(R. 6-10.)

The Court’s review of the administrative record will
proceed as follows:

First, the Court will summarize the relevant

evidence that was presented to the ALJ; second, the Court will
review the ALJ’s findings and conclusions; third, the Court will
2

summarize the additional evidence submitted to the Appeals Council;
and finally, the Court will review the Appeals Council’s decision.
I.

Evidence Presented to the ALJ
A.

Non-Medical Evidence
Plaintiff was born on June 3, 1958 (R. 142) and obtained

his GED in 1978.

(R. 154.)

Plaintiff is divorced with one child.

(R. 66.) He currently resides with his ex-wife’s mother and father
and his twenty-year old daughter.

(R. 66-67.)

From 1981 to April 20, 2008, Plaintiff worked as a
tractor-trailer driver.

(R. 155.)

His responsibilities included

hooking up the trailer, driving it to a stop, releasing the
trailer, and driving to an empty trailer to hook it up to the
truck.
York

(R. 155.)

to

He typically traveled from Long Island, New

Connecticut

or

Staten

Island,

New

York.

(R.

155.)

Plaintiff’s job required him to walk for approximately one hour,
stand for one hour, sit for eight hours, and climb and reach for
one hour.

(R. 156.)
Plaintiff testified that he worked as a truck driver for

Waldbaum’s until they closed their warehouse and laid off all of
their employees in 2008.

(R. 51.)

Plaintiff further testified

that he tried to get another job but potential employers would not
hire him due to his injured left leg.

(R. 51.)

Plaintiff worked

for another company in 2009, but he claims that he was fired
because he could not physically handle the job.
3

(R. 53.)

Plaintiff testified that he experiences constant pain in
his left ankle and that the pain increases with bad weather.
56.)

(R.

He stated that he cannot stand upright for any length of

time and that he has to sit down after a short time because of the
pain in his ankle.

(R. 54.)

He also stated that, on a “good day,”

he can walk for forty minutes without stopping and that he uses a
cane all of the time.

(R. 54-55.)

Additionally, he stated that

he cannot sit for long periods of time because he has blood in his
spinal fluid.

(R. 64.)

Plaintiff shops for food, goes to the barber, does some
laundry, goes to the store, goes to a friend’s house, and goes to
the bank.
himself.

(R. 67-72.)
(R. 68.)

He combs his hair, shaves, and dresses

He stated that he sometimes has problems with

buttons and with holding things for any length of time due to the
arthritis in his hands.

(R. 61.)

He stated that he is able to

carry things that are thirty pounds or less but only ten pounds or
less when his arthritis is active.

(R. 62-63.)

He also stated

that he wears a complete leg brace from the ankle to the knee.
(R. 65.)
B.

He takes Vicodin four times a day.

(R. 65.)

Medical Evidence
On July 7, 2008, Plaintiff visited Michael J. Fracchia,

M.D. and Michael J. Suzzi Valli, RPA-C1 of Long Island Bone &

1

Certified registered physician’s assistant.
4

Joint, L.L.P. for an evaluation of his left ankle pain.
85.)

(R. 184-

Plaintiff presented at five-feet, eight-inches tall and 280

pounds.

(R. 184.)

He stated that he has had ankle pain since he

twisted his ankle getting out of his truck on June 24, 2008.
184.)

(R.

The treatment notes describe Plaintiff’s history of a left

ankle fracture in 1984 following a motorcycle accident.

(R. 184.)

The notes reference Plaintiff’s three ankle surgeries, the last of
which resulted in a fusion of the ankle in 1991.

(R. 184.)

An

examination of the left ankle revealed diffuse swelling and scars.
(R. 184.)
184.)

Plaintiff could not evert or invert his ankle.

(R.

He dorsiflexed about five degrees below neutral and plantar

flexed about fifteen degrees. (R. 184.)

There was tenderness to

palpation, distal fibula laterally but no tenderness at the medial
aspect of the ankle.

(R. 185.)

Decreased sensation was noted,

which Plaintiff stated was unchanged compared to years ago.
185.)

(R.

Left ankle x-rays showed four screws intact, a fused ankle

joint, an old non-union oblique fracture of the distal fibula
shaft, and an old metatarsal shaft fracture.
fractures or dislocations were noted.

(R. 185.)

(R. 185.)

No acute

The diagnosis

was left ankle osteoarthritis and status post fusion.

(R. 185.)

Plaintiff’s treatment plan was conservative, consisting of ice,
elevation, and anti-inflammatories.

(R. 185.)

Plaintiff returned to Dr. Fracchia and RPA Valli for a
follow-up appointment on August 14, 2008.
5

(R. 183.)

He reported

that he had been given a prescription for a rocker bottom shoe,
but never purchased one.

(R. 183.)

for about one week. (R. 183.)

Plaintiff had taken Naproxen

He stated that his pain had improved

overall but he was still experiencing some pain in the left ankle.
(R. 183.)

The diagnosis was left ankle osteoarthritis and status

post fusion and the treatment plan was to return as needed.

(R.

183.)
On June 2, 2009, Plaintiff visited Natalya Laskina, RPAC for a commercial driver fitness determination.

(R. 200-03.)

Plaintiff was five-feet, eight-inches tall and weighed 257 pounds.
(R. 191.)
ankle

RPA Laskina noted that Plaintiff had a history of left

reconstruction

in

1984.

(R.

191.)

In

the

Medical

Examination Report for Commercial Driver Fitness, RPA Laskina
checked boxes indicating that Plaintiff did not have any missing
or impaired leg or foot (R. 200), and that he did not have any
limp, deformities, atrophy, or weakness in his lower limbs (R.
202).

RPA Laskina certified that Plaintiff passed the driver

fitness test, and qualified him to drive a truck for one year.
(R. 202.)
On February 5, 2010, James E. Carlson, D.O. evaluated
Plaintiff for the first time.

(R. 217.)

Plaintiff’s chief

complaints were hypertension and left ankle pain and his only
medication was Lisinopril.

(R. 217.)

an orthopedic for his ankle pain.
6

Plaintiff was referred to

(R. 217.)

Plaintiff
March 11, 2010.

visited

(R. 216.)

dependent diabetes.

Dr.

Carlson

diagnosis

on

(R. 216.)

this

orthopedic referral.

a

follow-up

on

The chief complaint was non-insulin
The only musculoskeletal finding

was the absence of compartment syndrome.
the

for

visit,

Dr.

(R. 216.)

Carlson

gave

As a part of
Plaintiff

an

(R. 216.)

X-rays of the left ankle taken at Stony Brook Orthopedics
on March 16, 2010 showed status post arthrodesis (fusion) of the
left distal tibiotalar joint and distal tibia-fibula.

(R. 224.)

They also showed a non-united middle third fibular shaft fracture.
(R. 224.) Four screws were noted, and no acute fractures were
noted.

(R. 224.)
On April 1, 2010, Plaintiff saw Dr. Carlson for another

follow-up. (R. 215.) Plaintiff’s reasons for the visit were ankle
pain and blood pressure medication renewal.

(R. 215.)

He stated

that his current pain medication was not helping to control his
pain, and rated his pain between a seven and eight on a ten-point
scale.

Dr. Carlson diagnosed arthopathy and prescribed Vicodin.

(R. 215.)
On April 5, 2010, orthopedic surgeon, Steven P. Sampson,
M.D., examined Plaintiff at the University Hand Center at Stony
Brook.

(R. 225.)

Plaintiff complained of worsening pain in his

ankle over the past three months.

(R. 225.)

Plaintiff’s history

of ankle surgery, diabetes, and hypertension were noted. (R. 225.)
7

Dr. Sampson observed that Plaintiff was overweight and had an
antalgic gait.

(R. 225.)

Plaintiff’s subtalar range of motion

measured at five to ten degrees and tenderness at the ankle joint
was noted.

(R. 225.)

Dr. Sampson reported that X-rays showed a

fused tibiotalar joint with screws and arthritis in the left ankle.
(R. 225.)

He ordered a CT-scan to evaluate the fusion, and

prescribed a SAFO (silicone ankle foot brace).

(R. 225.)

In a

follow-up with Dr. Sampson on June 8, 2010 Plaintiff stated that
he had been wearing the ankle brace for three weeks.
On

June

9,

2010,

Ammaji

Manyam,

M.D.

(R. 226.)
performed

an

internal medicine examination of Plaintiff at the request of the
Social Security Administration.

(R. 231-34.)

Plaintiff measured

five-feet, eight-inches tall and weighed 260 pounds.

(R. 232.)

Plaintiff reported leg pain and difficulty walking and related his
history of leg and ankle surgery.

(R. 231.)

He described the

pain as being constant and throbbing in nature and rated it an
eight out of ten without medication and a four out of ten with
strong pain medication.

(R. 231.)

Dr. Manyam reported that

Plaintiff’s activities of daily living included cooking, cleaning,
doing laundry, shopping, showering, dressing himself, and driving
a car.

(R. 232.)

He also noted that Plaintiff walked with a gait

and wore a leg brace on his left leg for stability, which mildly
corrected the gait.

(R. 232.)

Plaintiff could walk on his heels

and toes with some difficulty, he could squat, and his stance was
8

normal. (R. 232.) A left leg examination revealed varus deformity
of the left foot, multiple scars on the left foot, and slight
irregularity of the foot and lower leg because of the hardware
inside.
were

(R. 233.)

stable

and

Additionally, Dr. Manyam noted that the joints
non-tender

swelling, or effusion.

and

there

(R. 233.)

was

no

redness,

heat,

He diagnosed Plaintiff with

left leg pain secondary to old injuries and secondary to old healed
fractures with intact hardware.
Plaintiff’s

prognosis

was

(R. 234.)

good

and

limitations for physical activities.

Dr. Manyam opined that

stated

that

he

had

no

(R. 234.)

On July 14, 2010 Plaintiff returned to Dr. Carlson for
a diabetes follow-up and complained of increased pain in the leg.
(R. 275.)

His medications were Lisinopril and Vicodin.

(R. 275.)

Dr. Carlson diagnosed pain in joint involving his ankle and foot,
and instructed Plaintiff to continue his current medications.

(R.

275.)
Plaintiff again visited Dr. Carlson on August 31, 2010
and complained that he still had severe left ankle pain.

(R. 276.)

Dr. Carlson noted that Plaintiff was wearing a brace and that his
left ankle appeared tender and swollen as compared to the right
ankle.

(R. 276.)

medications.

Plaintiff was instructed to continue his pain

(R. 276.)

Prior to his hearing with the ALJ, Plaintiff submitted
a questionnaire prepared by Dr. Carlson on March 14, 2011.
9

(R.

264-72.)

The questionnaire indicated that Plaintiff first visited

Dr. Carlson in February 2010 and continued to see him about every
two to three months.

(R. 265.)

He diagnosed Plaintiff with a

fracture of the ankle and reconstructive surgery and indicated
that his prognosis was “guarded.”

(R. 265.)

Dr. Carlson noted

that Plaintiff’s primary symptom was severe pain, limiting basic
activities of daily life.

(R. 266.)

He described Plaintiff’s

pain as occurring daily and rated it between an eight and nine out
of ten.

(R. 267.)

Dr. Carlson also indicated that motion and

ambulation were precipitating factors that lead to the pain.

(R.

267.)
Additionally, Dr. Carlson opined that in an eight-hour
day, Plaintiff could sit for zero to one hours, stand or walk for
zero to one hours and that he would not be able to sit in a work
setting without getting up and moving around every half hour.
267.)

(R.

Furthermore, Dr. Carlson indicated that Plaintiff could not

lift or carry more than ten pounds occasionally, that he had
significant limitations in doing repetitive reaching, handling,
fingering, or lifting, and that he was significantly limited in
using his fingers, hands and arms due to arthritis.

(R. 268-69.)

He also opined that Plaintiff’s symptoms would likely increase in
a competitive work environment, and that he was incapable of
tolerating even low stress.

(R. 270.)

Plaintiff’s treatment

included Vicodin, physical therapy, and pain management. (R. 269.)
10

Dr. Carlson indicated that the earliest date that the description
of the symptoms and limitations in the questionnaire applied is
March or April of 1984.
II.

(R. 271.)

Decision of the ALJ
After reviewing all of the above evidence, the ALJ issued

his decision on July 15, 2011, finding that Plaintiff is not
disabled.

(R. 25-30.)

hypertension,

With respect to Plaintiff’s complaints of

elevated

blood

sugar

levels,

short-term

memory

deficits, arthritis in his fingers, knee pain, and shoulder pain,
the ALJ found that none constituted a medically determinable
impairment.

(R.

27-28.)

The

ALJ

did

find,

however,

that

Plaintiff’s osteoarthritis of the left ankle constituted a severe
impairment.

(R. 27.)

However, the ALJ concluded that while

Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms[,] . . . [Plaintiff’s]
statements

concerning

the

intensity,

persistence

and

limiting

effects of these symptoms are not credible to the extent they are
inconsistent

with

the

[ALJ’s]

residual

functional

capacity

assessment [that Plaintiff has the residual functional capacity to
perform the full range of light work as defined in 20 C.F.R.
§ 404.1567(b)].”
The

ALJ

(R. 28-29.)
did

not

accord

controlling

weight

to

Dr.

Carlson’s opinion because he is not a specialist, his records
failed to show any clinical abnormalities of the left ankle (except
11

for

one

examination),

and

his

opinion

was

contradicted

by

Plaintiff’s activities of daily living as well as the many years
of work.

(R. 29.)

The ALJ also found that medical opinion existed

that disagreed with the severity denoted in Dr. Carlson’s opinion
and accorded these opinions significant probative weight.

(R.

29.)
Plaintiff sought review of this decision by the Appeals
Council

and

Plaintiff

submitted

an

additional

questionnaire prepared by Dr. Leon Sultan, M.D.
Appeals

Counsel

denied

Plaintiff's

appeal

report

and

(R. 19.)

The

of

the

ALJ's

determination, stating that they “found no reason under [the] rules
to review the Administrative Law Judge's decision.” (R. 6.) Thus,
the

ALJ's

decision

Commissioner.

is

considered

the

final

decision

of

the

(R. 6.)

III. Additional Evidence Submitted to the Appeals Council
As noted, after the ALJ’s decision, Plaintiff submitted
to the Appeals Council an additional report and questionnaire
prepared by Dr. Sultan.

(R. 285-95.)

The report indicated that

on September 20, 2011, Plaintiff visited Dr. Sultan for chronic
pain and swelling in his left ankle.

(R. 294.)

Dr. Sultan noted

that Plaintiff had a limp and used a brace for support when walking.
(R. 294.)

A physical examination revealed Plaintiff was five-

feet, eight-inches tall and overweight at 240 pounds.

(R. 295.)

A left ankle examination showed mild swelling in the left ankle
12

and a difference in circumference between the left and right calf
(14-1/2” for the left calf and 17” for the right calf).

(R. 295.)

Range of motion testing revealed that the left ankle position was
frozen at approximately twenty degrees of plantar flexion without
any active dorsiflexion or plantar flexion.

(R. 295.)

Dr. Sultan

reported that Plaintiff has a permanent orthopedic disability and
that this disability is related to his history of ankle injuries
dating back to 1984.

(R. 295.)

He opined that Plaintiff’s

condition is permanent, interferes with his work as a tractortrailer

driver,

and

impedes

his

ability

to

walk,

stand

for

prolonged periods of time, lift heavy items, carry items, squat,
stoop, and crawl.

(R. 295.)

He stated that Plaintiff’s permanent

orthopedic disability prevents him from engaging in any type of
gainful activity and that his prognosis is guarded to poor.
295.)

(R.

Dr. Sultan instructed Plaintiff to reduce the weight placed

on the left ankle in order to relieve pressure.

(R. 295.)

In the Multiple Impairment Questionnaire submitted to
the Appeals Council, Dr. Sultan diagnosed plaintiff with posttraumatic left ankle osteoarthritis.

(R. 285.)

He characterized

the nature of the pain as chronic and the frequency as daily.
286-87.)

(R.

The intensity of the pain was rated between a seven and

eight on a ten-point scale.

(R. 287.)

Dr. Sultan opined that

Plaintiff was able to sit two to three hours and stand or walk one
to two hours in an eight-hour workday.
13

(R. 287.)

He reported

that Plaintiff could lift and carry up to ten pounds frequently,
and up to twenty pounds occasionally. (R. 288.)

Furthermore, he

opined that Plaintiff had no limitations using his hands, arms and
fingers.

(R. 289.)

Dr. Sultan stated that Plaintiff’s symptoms

would likely increase if he was placed in a competitive work
environment and that he was capable of tolerating moderate stress.
(R. 289-90.)

In his best medical opinion, Dr. Sultan indicated

that the earliest date the description of symptoms and limitations
in the questionnaire applied is 1984.

(R. 291.)

DISCUSSION
I.

Standard of Review
In reviewing the ruling of the ALJ, this Court will not

determine de novo whether Plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

Instead, this Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”

Curry v. Apfel, 209 F.3d

117, 122 (2d Cir. 2000) (internal quotations marks and citation
omitted),

superseded

§ 404.1560.

by

statute

on

other

grounds,

20

C.F.R.

If the Court finds that substantial evidence exists

to support the Commissioner’s decision, the decision will be
upheld, even if evidence to the contrary exists.
14

See Johnson v.

Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).

“Substantial

evidence is such evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Id. (citing Richardson v.

Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971)).

The substantial evidence test applies not only to the

ALJ’s findings of fact, but also to any inferences and conclusions
of law drawn from such facts.

See id.

To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including

contradictory

evidence

and

conflicting inferences may be drawn.”

evidence

from

which

See Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted).
to

any

“The findings of the Commissioner of Social Security as

fact,

if

supported

conclusive . . . .”
II.

by

substantial

evidence,

shall

be

42 U.S.C. § 405(g).

Eligibility for Benefits
A claimant must be disabled within the meaning of the

Social Security Act (the “Act”) to receive disability benefits.
See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
§ 423(a), (d).

A claimant is disabled under the Act when he can

show an inability “to engage in any substantial gainful activity
by

reason

of

any

medically

determinable

physical

or

mental

impairment . . . which has lasted or can be expected to last for
a continuous period of not less than 12 months.”
15

42 U.S.C.

§

423(d)(1)(A).

The

claimant’s

impairment

must

be

of

“such

severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy . . . .”

Id. § 423(d)(2)(A).

The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Petrie
v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011).

First, the

claimant must not be engaged in “substantial gainful activity.”
20 C.F.R. § 404.1520(a)(4)(i).

Second, the claimant must prove

that he suffers from a severe impairment that significantly limits
his mental or physical ability to do basic work activities.
§ 404.1520(a)(4)(ii).

Id.

Third, the claimant must show that his

impairment is equivalent to one of the impairments listed in
Appendix 1 of the Regulations. Id. § 404.1520(a)(4)(iii). Fourth,
if his impairment or its equivalent is not listed in the Appendix,
the

claimant

must

show

that

he

does

not

have

the

residual

functional capacity (“RFC”) to perform tasks required in his
previous employment.

Id. § 404.1520(a)(4)(iv).

Fifth, if the

claimant successfully makes these showings, the Commissioner must
determine if there is any other work within the national economy
that the claimant is able to perform.

Id. § 404.1520(a)(4)(v).

The claimant has the burden of proving the first four steps of the
16

analysis, while the Commissioner carries the burden of proof for
the last step.

See Shaw v. Chater, 221 F.3d at 132; Poupore v.

Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

“In making the required

determinations, the Commissioner must consider: (1) the objective
medical

facts;

(2)

the

medical

opinions

of

the

examining

or

treating physicians; (3) the subjective evidence of the claimant’s
symptoms submitted by the claimant, his family, and others; and
(4)

the

claimant’s

experience.”

educational

background,

age,

and

work

Boryk ex rel. Boryk v. Barnhart, No. 02–CV–2465,

2003 WL 22170596, at *8 (E.D.N.Y. Sept. 17, 2003) (citing Carroll
v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983)).
In

the

present

case,

the

ALJ

performed

the

above

analysis, and his conclusions as to the first three steps do not
appear to be in dispute.

He found that Plaintiff had not engaged

in substantial gainful activity since April 20, 2008 and that his
left ankle condition constituted a severe impairment that limited
his capacity to work.

(R. 27.)

The ALJ next determined that

neither Plaintiff’s impairment nor a medical equivalent was among
those enumerated in Appendix 1.

(R. 28.)

The ALJ found that

although Plaintiff was not capable of performing his past work, he
had the RFC to perform a full range of light work.

(R. 28.)

The Court must determine whether this final decision is
supported

by

substantial

evidence.
17

With

respect

to

the

new

evidence submitted to the Appeals Council, it is deemed part of
the record and will be considered by the Court when determining if
there is substantial evidence to support the Commissioner’s final
decision.

See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)

(“When the Appeals Council denies review after considering new
evidence, we simply review the entire administrative record, which
includes the new evidence, and determine, as in every case, whether
there is substantial evidence to support the decision of the
Secretary.”)
The

parties

have

cross-moved

for

judgment

on

the

pleadings and have raised several arguments in support of their
respective motions.
A.

The Court will address them in turn below.

Treating Physician Rule
Plaintiff first argues that remand is required because

the ALJ did not properly apply the treating physician rule to Dr.
Carlson’s medical opinions.
13.)

(Pl.’s Br., Docket Entry 11, at 7-

The Commissioner counters that the ALJ properly assigned Dr.

Carlson’s opinions “little weight.”
13, at 17.)

(Comm’r’s Br., Docket Entry

As discussed below, because the ALJ did not identify

what weight, if any, he ultimately gave to Dr. Carlson’s opinions,
this matter must be remanded to the Commissioner for further
proceedings.
According to the “treating physician rule,” the medical
opinions and reports of a claimant’s treating physicians are to be
18

given “special evidentiary weight.”
143 F.3d 115, 118 (2d Cir. 1998).

Clark v. Comm’r of Soc. Sec.,
Specifically, the regulations

state:
Generally, we give more weight to opinions
from your treating sources . . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20

C.F.R.

§

404.1527(c)(2).

When

an

ALJ

does

not

accord

controlling weight to the medical opinion of a treating physician,
the ALJ “must consider various ‘factors’ to determine how much
weight to give to the opinion.”

Halloran v. Barnhart, 362 F.3d

28, 32 (2d Cir. 2004); see also Schnetzler v. Astrue, 533 F. Supp.
2d 272, 286 (E.D.N.Y. 2008).

Such factors include:

(1) the length of the treatment relationship
and frequency of the examination; (2) the
nature
and
extent
of
the
treatment
relationship; (3) the extent to which the
opinion is supported by medical and laboratory
findings; (4) the physician’s consistency with
the record as a whole; and (5) whether the
physician is a specialist.
Schnetzler,

533

F.

Supp.

2d

at

286;

see

also

20

C.F.R.

§ 404.1527(d)(2); Halloran, 362 F.3d at 32.
Although it is clear that the ALJ did not give Dr.
Carlson’s opinions “controlling weight,” the ALJ never actually
specified what weight, if any, he ultimately gave to Dr. Carlson’s

19

opinions.

In contrast, the ALJ stated that he gave “substantial

weight” to the opinion of the consultative examiner, Dr. Manyam,
and

“significant

probative

weight”

to

the

“medical

opinion . . . which disagrees with the severity denoted in [Dr.
Carlson’s] opinion.”2
physician

rule,

the

(R. 29.)
ALJ

must

However, under the treating

“make

clear

to

any

subsequent

reviewers the weight the adjudicator gave to the treating source's
medical opinion.”

Social Security Ruling (“SSR”) 96–2p, 1996 WL

374188, at *5 (July 2, 1996).

The ALJ must do so because “even

when a treating physician's opinion is not given controlling
weight, the opinion is still entitled to some weight.”

Clark v.

Astrue, No. 08-CV-10389, 2010 WL 3036489, at *4 (S.D.N.Y. Aug. 4,
2010) (emphasis in original) (citation omitted).

Here, given the

ALJ’s criticism of Dr. Carlson’s medical opinions, the Court could
reasonably interpret the ALJ’s decision to give no weight at all
to Dr. Carlson’s opinions, but it is impossible to definitively
say.

Thus, the ALJ’s failure to identify the weight given to Dr.

Carlson’s opinions constitutes legal error requiring remand.

See

Plaintiff reads the ALJ’s decision to give “significant
probative weight” to Dr. Carlson’s opinions but argues that the
ALJ did not properly apply the treating physician rule due to
the inconsistency between the ALJ affording the opinion
“significant probative weight” and also finding that “none of
the limitations from [Dr. Carlson] were acceptable.” (Pl.’s Br.
at 8.) However, the Court reads the ALJ’s decision, as the
Commissioner does, to give “significant probative weight” to the
medical opinions that did not support Dr. Carlson’s opinions.
(Comm’r’s Br. at 17 n.10.)
2

20

Norman v. Astrue, 912 F. Supp. 2d 33, 84 (S.D.N.Y. 2012) (remanding
to the Commissioner because the ALJ did not “specify the weight
ultimately given to [the treating physician’s] opinions--even if
that weight [was] not controlling nor a great amount”); Pierre v.
Astrue, No. 09-CV-1864, 2010 WL 92921, at *9-10 (E.D.N.Y. Jan. 6,
2010) (noting that the regulations require the ALJ “to explain the
degree of weight a treating source’s opinion deserves when it is
found not to be controlling” and remanding to the Commissioner
because the ALJ, inter alia, “failed even to mention the weight
[the treating physicians’] opinions were given (except to say it
was not ‘great’)”).

On remand, the ALJ should identify the degree

of weight given to Dr. Carlson’s opinions and explain why Dr.
Carlson’s opinions deserve such weight.
Because remand is required on this ground, the Court
does not address Plaintiff’s additional argument that the evidence
submitted to the Appeals Council after the ALJ’s decision warrants
remand.

However, since this evidence is now part of the record,

see Perez, 77 F.3d at 46, the ALJ should consider such evidence on
remand.
B.

Credibility
Plaintiff also argues that the ALJ did not properly

assess Plaintiff’s credibility because the ALJ “failed to provide
any

analysis

of

how

the

[Plaintiff’s] allegations.”

[record]

findings

(Pl.’s Br. at 15.)
21

contradicted

The Court disagrees with Plaintiff that the ALJ failed
to provide an analysis of Plaintiff’s credibility.

However,

because the treating physician’s opinion “is a significant part of
the evidence that is weighed in determining credibility of a
claimant under 20 C.F.R. § 404.1529,” whether the ALJ properly
assessed

Plaintiff’s

credibility

here

“can

only

be

properly

assessed after the correct application of the treating physician
rule.”

Garner v. Colvin, No. 13-CV-4358, 2014 WL 2936018, at *10

(S.D.N.Y.

June

27,

2014)

(remanding

to

the

Commissioner

and

directing that “the issue of credibility . . . be revisited on
remand, and evaluated in light of the proper application of the
treating

physician

credibility]”).

rule

and

[the

factors

for

evaluating

Accordingly, the ALJ should readdress the issue

of credibility on remand after properly applying the treating
physician rule.
Plaintiff additionally argues that the ALJ “applied the
wrong

legal

testimony

was

standard

when

credible.”

determining

(Pl.’s

Br.

at

whether
16.)

Plaintiff’s
As

Plaintiff

correctly notes, the Social Security regulations required the ALJ
to first assess the credibility of Plaintiff’s statements before
determining Plaintiff’s RFC.

See Maldonado v. Comm’r of Social

Sec., No. 12-CV-5297, 2014 WL 537564, at *17 (E.D.N.Y. Feb. 10,
2014) (“Applicable regulations required the ALJ to assess the
credibility of [plaintiff’s] statements and only then go on to
22

determine his RFC.”); Otero v. Colvin, No. 12-CV-4757, 2013 WL
1148769, at *7 (E.D.N.Y. Mar. 19, 2013) (“[I]t makes little sense
to decide on a claimant's RFC prior to assessing her credibility.
It merely compounds the error to then use that RFC to conclude
that a claimant's subjective complaints are unworthy of belief.”).
Plaintiff argues that the ALJ committed error here because he first
determined

Plaintiff’s

determination,
credible.
stated

in

RFC,

concluded

and

that

then,

as

Plaintiff’s

a

result

statements

of
were

that
not

Plaintiff bases this argument on the fact that the ALJ
his

decision

that

he

found

Plaintiff’s

statements

concerning his symptoms of pain “not credible to the extent they
are

inconsistent

assessment.”

with

the

above

residual

functional

capacity

(R. 28-29.)

Although several judges in this district have remanded
based on use of similar “shorthand credibility determination[s],”
Maldonado, 2014 WL 537564, at *17 (collecting cases remanding based
on use of “not credible to the extent they are inconsistent with
RFC” formulation), this case is distinguishable because the ALJ
went on to evaluate Plaintiff’s credibility against other evidence
in the record (See R. 29).
would

“make

a

finding

on

Additionally, the ALJ stated that he
the

credibility

of

[Plaintiff’s]

statements based on consideration of the entire case record.”
28.)

(R.

Thus, while the ALJ uses formulaic language that has led

other judges to remand, a review of the entire decision in this
23

case reveals that the ALJ here “did not actually employ an improper
credibility determination in violation of the dictates of the
Social Security regulations.”

Fiumano v. Colvin, No. 13-CV-2848,

2013 WL 5937002, at *9 n.9 (E.D.N.Y. Nov. 4, 2013) (internal
quotation marks omitted) (finding that the ALJ did not apply
incorrect credibility standard notwithstanding use of “to the
extent that it is inconsistent with the above residual functional
capacity”

language

because

the

entire

decision

indicated

otherwise).
C.

Plaintiff’s Obesity
Plaintiff also contends that the ALJ erred when he failed

to consider Plaintiff’s obesity and seeks remand “for further
consideration of the combined impact of [Plaintiff’s] left ankle
impairment with his obesity.”

(Pl.’s Br. at 18.)

The Court agrees

that remand on this ground is also required.
Under

SSR

02-1p,

2000

WL

628049

(Sept.

12,

2002),

“[o]besity is not in and of itself a ‘disability,’ but the Social
Security Administration considers it to be a medically determinable
impairment, the effects of which should be considered at the
various steps of the [ALJ’s] evaluation process . . . .”
v.

Colvin,

No.

12-CV-1381,

Nov. 19, 2013).

2013

WL

6086650,

at

*6

Polynice
(N.D.N.Y.

Plaintiff never claimed disability based on

obesity, nor did any of the physicians who examined him diagnose
him as obese.

However, the record does show that Plaintiff was
24

obese,3 and given that Plaintiff had a musculoskeletal impairment
in the form of his left ankle injury, the ALJ should have considered
the effects of Plaintiff’s obesity, if any, in conjunction with
Plaintiff’s ankle impairment at the various steps of the evaluation
process.

See Kelly v. Astrue, No. 09-CV-1359, 2011 WL 817507, at

*7 (N.D.N.Y. Jan. 18, 2011) (remanding to the Commissioner to give
“consideration . . . to the effect, if any, of [p]laintiff's
obesity on her overall ability to perform basic work activities”
notwithstanding that plaintiff did not cite obesity as a limiting
impairment), report and recommendation adopted by, 2011 WL 807398
(N.D.N.Y. Mar. 2, 2011); Kazanjian v. Astrue, No. 09-CV-3678, 2010
WL 3394385, at *11 (E.D.N.Y. Aug. 25, 2010) (finding an “inadequate

SSR 02-1p describes the medical criteria for the diagnosis of
obesity. It states that “[t]he National Institutes of Health
(NIH) established medical criteria for the diagnosis of obesity
in its Clinical Guidelines on the Identification, Evaluation,
and Treatment of Overweight and Obesity in Adults (NIH
Publication No. 98–4083, September 1998). These guidelines
classify overweight and obesity in adults according to Body Mass
Index (BMI).” SSR 02–1p. As the ruling further explains, “BMI
is the ratio of an individual's weight in kilograms to the
square of his or her height in meters (kg/m2).” Id.
3

Here, the record indicates that Plaintiff is five-feet, eightinches tall and his weight ranged from 280 pounds on July 7,
2008 to 240 pounds on September 9, 2011. (R. 184, 295.)
Consequently, Plaintiff’s BMI ranged between 36.5 and 42.6.
NIH’s clinical guidelines recognize three levels of obesity:
level I includes BMIs of 30.0 to 34.9; level II includes BMIs of
35.0 to 39.9; and level III, termed “extreme” obesity, includes
BMIs greater than or equal to 40.0. SSR 02-1p. Thus, based on
the record, Plaintiff had at times level II and level III
obesity.
25

basis [for the ALJ’s finding] that plaintiff was incredible”
because, inter alia, the ALJ did not consider plaintiff’s obesity
as a factor in evaluating the credibility of plaintiff’s statement
as to the “intensity, persistence, and limiting effects” of her
symptoms).

Accordingly, on remand, the ALJ should consider the

combined impact of Plaintiff’s left ankle impairment with his
obesity throughout the evaluation process.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion is
DENIED, Plaintiff’s motion is GRANTED, and this action is REMANDED
for further proceedings consistent with this Memorandum and Order.
The Clerk of the Court is directed to mark this matter CLOSED.

SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Date: September 11, 2014
Central Islip, New York

26