Mullings v. Colvin

Filing 26

ORDER denying 17 Motion for Judgment on the Pleadings; granting in part and denying in part 19 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, the court denies defendants motion for judgmen t on the pleadings, denies plaintiffs motion insofar as it seeks remand solely for the calculation of benefits and remands this case for further proceedings consistent with this opinion. The Clerk of Court is respectfully requested to close this case. Ordered by Judge Kiyo A. Matsumoto on 11/21/2014. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
KYAN MULLINGS,
Plaintiff,
NOT FOR PUBLICATION
-againstMEMORANDUM & ORDER
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,

13-CV-1705 (KAM)

Defendant.
--------------------------------------- X
MATSUMOTO, United States District Judge:
Kyan Mullings (“plaintiff”) appeals the final decision
of Acting Commissioner of Social Security Carolyn W. Colvin
(“defendant” or the “Commissioner”) denying plaintiff’s
application for Social Security Disability (“SSD”) under Title
II of the Social Security Act (the “Act”).

Pursuant to Fed. R.

Civ. P. 12(c), the parties cross-moved for judgment on the
pleadings.

(See ECF No. 20, Mem. of Law in Supp. of Pl.’s

Cross-Mot. dated 10/9/13 (“Pl. Mem.”); ECF No. 18, Mem. of Law
in Supp. of Def.’s Mot. dated 8/26/13 (“Def. Mem.”).)

Plaintiff

claims that the Administrative Law Judge (“ALJ”) in plaintiff’s
disability hearing improperly weighed evidence from plaintiff’s
treating physicians supporting plaintiff’s claim of disability
and requests that the case be remanded solely for calculation of

benefits or, in the alternative, vacated and remanded for a de
novo hearing.

(Pl. Mem. at 1.)

Defendant contends that the

ALJ’s decision was supported by substantial evidence.
generally Def. Mem.)

(See

For the reasons set forth below, the case

is remanded to the Commissioner for further proceedings
consistent with this opinion.
BACKGROUND
I.

Plaintiff’s Personal and Employment History
Plaintiff was born on October 4, 1979 in Brooklyn, New

York.

(Tr. 26.)1

Plaintiff obtained a GED in 1998, and a

commercial driver’s license in 2003.

(Id. at 141.)

From

February 2004 to August 2005, plaintiff performed clerical work
processing taxes at two different companies.

(Id. at 37, 142.)

From September 2005 to February 2009, plaintiff worked as a van
driver for various entities, including the Administration for
Children’s Services (“ACS”).2

(Id. at 38-39, 142.)

On February

24, 2009, plaintiff was rear-ended while driving a van for work
and subsequently stopped working as a result of the injuries he
sustained from the accident.

(Id. at 28, 140.)

Plaintiff has

not returned to work since the day of his accident.

1
Citations to the administrative record (1-371) are indicated by the
abbreviation “Tr.”
2

While on assignment for ACS, plaintiff transported children in a minivan and
was often required to lift passengers, furniture, and other belongings. (Tr.
38-39, 66-67.)

2

II.

Plaintiff’s Medical History
On February 25, 2009, the day after his accident,

plaintiff was admitted to the Emergency Department of the
Peninsula Medical Center complaining of shoulder, neck, and back
pain.

(Tr. 352-55.)

A physical examination revealed that

plaintiff experienced a reduced range of motion and tenderness
in his neck and back.

(Id.)

The attending physician prescribed

Motrin and Skelaxin and advised that plaintiff see a primary
care physician within 48 to 72 hours.

(Id.)

A. Treating Relationship with Dr. McGee
On or about February 26, 2009, plaintiff saw Dr. John
McGee for an initial examination.

(See id. at 208.)3

Plaintiff

complained of neck and back pain and stiffness, dizziness,
numbness in his fingers and toes, right shoulder pain, and
shooting pain down his left leg and right arm.

(Id.)

He

reported his pain was exacerbated by prolonged standing,
walking, lying down, and carrying heavy objects.

(Id. at 209.)

Dr. McGee opined that plaintiff was in “moderate distress.”
(Id. at 210.)
In a physical examination, Dr. McGee observed that
plaintiff’s ranges of motion in the cervical and lumbosacral

3

Although both the record and the parties’ memoranda
initial examination as February 24, 2009, the date of
(Tr. 208; Pl. Mem. at 4; Def. Mem. at 2), Dr. McGee’s
he first saw plaintiff after plaintiff’s February 25,
Medical Center.

3

state the date of the
plaintiff’s accident
report indicates that
2009 visit to Peninsula

spine were lower than normal.4

(See id. at 210.)

Dr. McGee

found that plaintiff’s cervical muscles were symmetrical and
moderately tender.

(Id.)

A Spurling’s test5 was positive, as

was a straight leg raise test6 in both legs.

(Id.)

had pain and muscle spasm in his lumbar spine.

Plaintiff

(Id.)

Although

plaintiff complained of pain in his right shoulder, his shoulder
ranges of motion were normal.

(Id. at 210-11.)

Dr. McGee diagnosed plaintiff with a concussion,
spinal sprain/strain, radiculitis and disc displacement, and a
shoulder contusion, and noted that his prognosis for recovery
was “guarded.”

(Id. at 212-13.)

Dr. McGee recommended an MRI,

referred plaintiff for physical therapy three times a week and
prescribed Percoset and Skelaxin for plaintiff’s pain.
213.)

(Id. at

He noted that plaintiff was 100 percent temporarily

impaired and could not return to work due to pain.

(Id.)

4

Specifically, plaintiff’s cervical spine ranges of motion (in degrees) were:
flexion, 20 out of a normal 60; extension, 30 out of 50; left rotation, 20
out of 80; right rotation, 30 out of 80; left lateral flexion, 20 out of 45;
and right lateral flexion, 25 out of 45. (Id. at 210.) Plaintiff’s lumbar
ranges of motion were: flexion, 45 out of a normal 90; extension, 20 out of
30; left rotation, 20 out of 45, right rotation, 25 out of 45, left lateral
flexion, 15 out of 35; and right lateral flexion, 10 out of 35. (Id.)
5
Physicians conduct a Spurling’s test to assess nerve root compression and
cervical radiculopathy by turning the patient’s head and applying downward
pressure. A positive Spurling’s sign indicates that the neck pain radiates
to the area of the body connected to the affected nerve. Spurling’s Test,
http://www.physio-pedia.com/Spurling's_Test (last visited Oct. 24, 2014).
6

A straight-leg raise test may aid in determining whether a patient suffers
from lumbar disc herniation. Straight Leg Raise Test, http://www.physiopedia.com/Straight_Leg_Raise_Test (last visited Oct. 24, 2014). The SSA
regulations state that “[e]vidence of nerve root compression” may be
“characterized by . . . positive straight-leg raising test.” 20 C.F.R. pt.
404, App. 1 to Subpart P, pt. B § 101.04.

4

Plaintiff underwent MRIs of his lumbar and cervical
spine on April 27, 2009.

(Id. at 206-207.)

The MRI of the

lumbar spine revealed a posterior disc bulge between the L5 and
S1 vertebrae abutting the S1 nerve routes and the thecal sac.
(Id. at 207.)

The MRI of the cervical spine revealed cervical

curvature straightening with kyphotic angulation at the C4/C5
vertebrae; disc bulging imposing on the thecal sac from C2/C3
through C6/C7; disc hydration loss at C3/C4, C4/C5, and C7/T1;
right paracentral disc herniation at C5/6 abutting the right
ventral cord; and disc herniation and a radial annular tear
superimposed at C4/C5 that was imposing on the ventral margin of
the cord in the midline.

(Id. at 206.)

On August 6, 2009, plaintiff returned to Dr. McGee
complaining of back pain and stiffness and shooting pain down
his arms and legs.7

(Id. at 191.)

Plaintiff’s cervical and

lumbosacral ranges of motion were again less than normal and
generally unchanged from his April examination.
191.)

(See id. at

However, plaintiff’s right shoulder ranges of motion had

decreased to: flexion, 120 degrees (out of 180 degrees);
extension, 30 (out of 80); and adduction, 110 (out of 180).
(Id. at 192.)

His right shoulder strength measured a 3+ out of

a possible 5.

(Id.)

Dr. McGee diagnosed plaintiff with spine

7

As discussed below, plaintiff had received a steroid injection in his right
shoulder from Dr. Eric Freeman on August 4, 2009. (Id. at 233; see id. at
191.)

5

sprain/strain and internal derangement of the right shoulder.
(Id.)

Dr. McGee recommended an orthopedic consultation and

physical therapy, and again opined that plaintiff was 100
percent temporarily impaired and could not return to work due to
pain.

(Id. at 193-94.)
In his October 2009 examination, plaintiff again

exhibited reduced spinal ranges of motion and pain in his
cervical spine.

(Id. at 196.)

Both the Spurling’s test and a

straight leg raise test were positive.

(Id.)

Dr. McGee

recommended an orthopedic follow up, pain management
consultation and physical therapy, and prescribed Percocet (7.5
mg) for plaintiff’s pain.

(Id. at 199.)

He noted that

plaintiff was 50 percent temporarily impaired and opined that
plaintiff could return to work with limitations on
bending/twisting, climbing stairs, kneeling, lifting, operating
heavy equipment, operation of motor vehicles and sitting.

(Id.)

At a November 2009 visit with Dr. McGee, plaintiff
reported no change in his level of pain, although he complained
of headaches, neck pain and numbness in his right leg in
addition to the back pain and shooting pains down his legs and
right arm reported at prior visits.

(Id. at 186.)

According to

Dr. McGee’s examination, plaintiff again exhibited reduced
spinal ranges of motion with pain, and positive Spurling’s and
straight leg raising tests.

(Id.)

6

Dr. McGee recommended that

plaintiff medicate his pain with Tylenol/Aleve while awaiting a
pain management consultation and opined that plaintiff was 100
percent temporarily impaired and could not return to work due to
pain.

(Id. at 186-89.)

In December 2009, after plaintiff

reported the same symptoms and pain levels, Dr. McGee
recommended Percocet twice a day.

(Id. at 204.)

During a January 2010 visit, plaintiff complained of
worse pain.

(Id. at 181.)

Dr. McGee also noted that plaintiff

was to receive an epidural injection.

(Id.)

Dr. McGee’s

examination revealed further reduced ranges of motion in
plaintiff’s lumbosacral spine, persisting reduced ranges of
motion in his cervical spine and right shoulder and spine and
shoulder pain.

(Id. at 181-82.)

Dr. McGee again diagnosed

spinal sprain/strain and internal derangement of the right
shoulder and prescribed 7.5 mg of Percocet.

(Id. at 181-84.)

In May 2010, plaintiff complained of neck pain, arm
numbness and tingling and back pain and stiffness with radiating
pain down both legs.

(Id. at 314.)

Spinal ranges of motion

were still lower than normal, and the Spurling’s test and
straight leg raise test were both positive.

(Id. at 315.)

Dr.

McGee noted decreased sensation at the bilateral C5/C6/C7 and
L5/S1 dermatomes.

(Id.)

Plaintiff’s motor strength was 5/5 in

the upper and lower extremities, and his reflexes were 2/5.
(Id.)

Dr. McGee diagnosed lumbar and cervical radiculitis and

7

lumbar disc displacement in addition to spinal sprain/strain and
prescribed 10 mg of Ambien.

(Id. at 317-18.)

He again found

that plaintiff was 100 percent temporarily impaired and unable
to return to work due to pain.

(Id. at 318.)

Plaintiff visited Dr. McGee again in June and July
2010 with the same complaints of pain, and Dr. McGee’s physical
examinations of plaintiff revealed no marked change.
at 319-28.)

(See id.

In July, Dr. McGee noted that plaintiff had had

three epidural injections in his lumbar spine but had not sought
a second opinion regarding other recommended injections.
at 319.)

(Id.

Dr. McGee discussed another pain doctor with plaintiff

and again prescribed Ambien.

(Id. at 322-23.)

In September

2010, Dr. McGee noted that plaintiff’s pain was persisting and
that he had seen Dr. Dov Berkowitz, M.D.,8 and Dr. Sebastian
Lattuga, M.D., a spine specialist.

(Id. at 338.)

In November

2010, Dr. McGee noted that plaintiff was to undergo surgery on
his lower back with Dr. Lattuga.

(Id. at 330.)

Dr. McGee

prescribed 12.5 mg of Ambien CR, an extended-release formula of
the drug.

(Id. at 334.)

In January 2011, Dr. McGee noted that

8

On August 23, 2010, Plaintiff saw Dr. Berkowitz, who recommended that
plaintiff follow up with spine specialist Dr. Sebastian Lattuga. (Id. at
356.) Dr. Berkowitz observed plaintiff could forward flex his lumbar spine
about 60 degrees and extend to neutral with some paraspinal tenderness.
(Id.) He noted that plaintiff’s pain was “significant” and getting worse
over time, and that plaintiff had not made progress with conservative
treatment. (Id.)

8

plaintiff’s pain continued to persist with no change and that
plaintiff would undergo another cervical MRI.

(Id. at 335.)

B. Treating Relationship with Dr. Freeman
On August 4, 2009, plaintiff saw Dr. Eric Freeman for
an orthopedic consultation, after a referral from Dr. Andrew
Susi, plaintiff’s chiropractor.

(See id. at 32, 232.)

Dr.

Freeman’s examination of plaintiff’s right shoulder demonstrated
a positive drop-arm test, positive Neer’s and Hawkins tests, and
bicipital groove tenderness, but no instability.

(Id.)

His

examination of plaintiff’s left shoulder revealed pain in the
bicipital groove, a negative drop-arm test, and positive Neer’s
and Hawkins tests.

(Id.)

Dr. Freeman observed restriction of

motion in plaintiff’s lumbar spine, with pain and spasms
present, and a straight leg raise test was positive.

(Id.)

Plaintiff also had restricted motion in his cervical spine, and
a Spurling’s test was positive.

(Id.)

plaintiff was neurologically intact.

Dr. Freeman noted that
(Id.)

Based on x-rays and his physical examination of
plaintiff, Dr. Freeman concluded that plaintiff had disc disease
in his cervical and lumbar spine and possible derangement of
both shoulders (the right greater than the left).

(Id. at 233.)

He recommended a right shoulder MRI to check for a potential
labral tear and administered a corticosteroid injection into
plaintiff’s right shoulder.

(Id.)

9

He opined that plaintiff was

“currently disabled” and advised that plaintiff would proceed
with physiotherapy for his shoulders, neck and back.

(Id. at

233.)
During an August 18, 2009 follow up evaluation, Dr.
Freeman noted that plaintiff’s cervical and lumbar spine were
unchanged and that plaintiff continued to experience pain.
at 231.)

(Id.

Additionally, plaintiff’s right shoulder still had

pain with rotary motion and the left shoulder was unchanged.
(Id.)

Because Dr. Freeman had not received authorization for an

MRI, he recommended that plaintiff continue with his current
physical therapy until his next appointment, and again noted
that plaintiff was currently disabled “with regards [sic] to
work.”

(Id.)

Plaintiff returned to Dr. Freeman’s office after

an MRI, at which time Dr. Freeman noted that, with regard to
plaintiff’s right shoulder, plaintiff displayed abduction and
forward flexion to 170 degrees, internal rotation to L2, and
external rotation with his elbow at his side to 35 degrees.
(Id. at 230.)

Signs of right shoulder impingement and bicipital

tension were present, and plaintiff’s drop-arm test was
positive.

(Id.)

10

During a follow-up visit on October 8, 2009, Dr.
Freeman examined plaintiff and plaintiff’s MRI results.9
229.)

(Id. at

Dr. Freeman observed than plaintiff’s right-shoulder

abduction and forward flexion, internal rotation and external
rotation were unchanged.

(Id.)

arm test were again positive.

Impingement signs and a dropDr. Freeman noted that the MRI

indicated impingement without any rotator cuff tear.

(Id.)

He

recommended that plaintiff refrain from working and requested
authorization to begin physical therapy on plaintiff’s right
shoulder.

(Id.)

Dr. Freeman prescribed physiotherapy with the

goal of non-operative pain management.

(Id.)

After a scheduled follow-up on October 29, 2009, Dr.
Freeman found that plaintiff’s shoulder was unchanged and that
plaintiff experienced ongoing, consistent radicular-type
discomfort in the neck and back.

(Id. at 228.)

Dr. Freeman

recommended that plaintiff follow up with Dr. Freeman’s spine
partner, Dr. Aron Rovner, to consider epidural injections for
plaintiff’s lumbar spine, after which Dr. Freeman would continue
work on plaintiff’s back and shoulder.

(Id.)

Dr. Freeman

requested authorization for a series of three epidural
injections.

(Id.)

9

Plaintiff had an MRI of his right shoulder on September 16, 2009 at St.
John’s Episcopal Hospital South Shore. (Id. at 236.) Dr. Joseph Izzo
reported that plaintiff displayed mild tendinopathy, but found no tendon
discontinuity, retraction or skeletal muscle atrophy. (Id.)

11

Dr. Freeman observed during a follow-up on November
19, 2009 that plaintiff’s right shoulder, neck and back were
unchanged in terms of range of motion, and that plaintiff
continued to experience radicular pain in the neck and back.
(Id. at 227.)

Dr. Freeman opined that plaintiff was currently

disabled and noted that he had not yet received authorization
for the epidural injections.

(Id.)

On December 17, 2009, plaintiff returned to Dr.
Freeman for an evaluation of plaintiff’s lumbar spine herniated
disc.

(Id. at 226.)

Dr. Freeman noted that plaintiff’s right

shoulder and neck were unchanged and plaintiff would follow up
with Dr. Rovner now that authorization had been received for the
spinal injections.

(Id.)

prescription for Vicodin.

Dr. Freeman also renewed plaintiff’s
(Id.)

C. Treating Relationship with Dr. Rovner
Records of Dr. Rovner’s examinations of plaintiff
begin on January 5, 2010, when Dr. Rovner reported that
plaintiff returned for a follow-up visit complaining of back
pain radiating down both legs to his feet and toes, and neck
pain radiating down his right arm with numbness and paresthesia
extending to his fingers.

(Id. at 223.)

Dr. Rovner observed

that plaintiff had limited range of motion of the cervical and
lumbar spine (0 to 50 degrees) and cervical and lumbar spine
spasm.

(Id.)

Plaintiff had positive Spurling’s and straight-

12

leg raise tests.

(Id.)

Dr. Rovner observed that plaintiff’s

cervical spine MRI showed disc bulging and herniation primarily
at the C3-4, C4-5 and C5-6 levels, and that plaintiff’s lumbar
spine MRI showed disc bulging and neurological impingement
primarily at the L4-5 level.

(Id.)

Dr. Rovner noted that

plaintiff would undergo a series of three epidural steroid
injections, which they discussed at length.

(Id.)

Dr. Rovner

also requested approval for an EMG test (electromyogram) of
plaintiff’s bilateral upper and lower extremities.

(Id. at

224.)
Plaintiff received three lumbar epidural steroid
injections to treat lumbar thoracic radiculitis on January 21,
January 28 and February 4, 2010.

(Id. at 234, 297-98).

Following the epidural injections, plaintiff visited Dr. Rovner
on February 16, 2010, complaining of persistent neck pain
radiating down his right arm and fingers, and back pain
radiating down the posterolateral aspect of the knees of both
legs.

(Id. at 222.)

Dr. Rovner observed that plaintiff had

limited range of motion of the cervical and lumbar spine, a
positive Spurling’s sign, and a positive straight-leg raise
test.

(Id.)

Dr. Rovner recommended three cervical epidural

steroid injections and an EMG test of plaintiff’s bilateral
upper and lower extremities.

(Id.)

13

Plaintiff received an epidural steroid injection to
treat lumbar HNP (herniated nucleus pulposus, also referred to
as a herniated disc) on February 25, 2010.

(Id. at 278.)

Plaintiff received another series of epidural steroid injections
to treat lumbar thoracic radiculitis on March 4, March 25 and
April 8, 2010.

(Id. at 256-64.)

On April 1, 2010, plaintiff underwent another MRI of
the lumbar spine.

(Id. at 312.)

In the report to Dr. Rovner,

Dr. Steven Winter noted that the findings were “not
significantly changed” from the results of plaintiff’s MRI on
April 27, 2009.

(Id.)

Plaintiff displayed left convexity of

the lumbar curvature, a posterior disc bulge at L5/S1 abutting
the S1 nerve roots after they exit the thecal sac and
subligamentous disc bulges at L2/3 and L4/5.
revealed no other remarkable abnormalities.

(Id.)

The MRI

(Id.)

On July 5, 2010, prior to plaintiff’s administrative
hearing, Dr. Rovner completed a medical assessment of
plaintiff’s ability to do work-related activities.
308-09.)

(See id. at

Dr. Rovner reported that plaintiff’s impairment

affected his ability to lift and carry to the extent that
plaintiff could not lift or carry any weight.

(Id. at 309.)

He

based this conclusion on medical findings of cervical neck pain
and lumbar radiculopathy, and plaintiff’s symptoms of persistent

14

neck and back pain radiating down both legs with numbness and
paresthesia down both posterolateral aspects.

(Id.)

Dr. Rovner reported that plaintiff’s impairment also
affected his ability to stand and walk such that plaintiff could
only stand or walk for one to two hours total and 30 minutes
without interruption in an eight-hour workday.

(Id.)

Dr.

Rovner cited plaintiff’s cervical and lumbar radiculopathy,
persistent neck and back pain, limited range of motion, positive
Spurling’s sign and positive straight-leg raise test as medical
findings that supported his conclusion, in addition to
plaintiff’s symptoms of radiating pain and numbness.

(Id. at

309-10.)
Dr. Rovner concluded that plaintiff’s impairment
similarly affected his ability to sit to the extent that
plaintiff could sit for one to three hours total and 30 – 45
minutes without interruption in an eight-hour workday.
310.)

(Id. at

He cited plaintiff’s radiating leg pain due to lumbar

radiculopathy to support this conclusion.

(Id.)

Dr. Rovner concluded that plaintiff could never climb,
stoop, kneel, balance, crouch or crawl due to his spinal
radiculopathy, and noted that plaintiff had undergone a series
of epidural steroid injections.

(Id.)

He also reported that

plaintiff’s ability to reach, handle, push and pull would be

15

affected due to pain and cervical and lumbar spine
radiculopathy.

(Id. at 311.)

On July 20, 2010, plaintiff visited Dr. Rovner for a
follow-up evaluation and complained of persistent back pain but
no radiating leg pain.

(Id. at 313.)

Dr. Rovner’s examination

revealed no other change in plaintiff’s physical condition.
(Id.)

Dr. Rovner noted that plaintiff did not yet want to

undergo facet joint injections.

(Id.)

D. Treating Relationship with Dr. Lattuga
Dr. Lattuga saw plaintiff for a spinal consultation on
September 9, 2010.

(See id. at 343-45.)

At the time, plaintiff

continued to complain of neck and back pain and upper and lower
extremity radiation with numbness and tingling; he also
described his pain as daily, constant, persistent and measuring
8-9 out of 10.

(Id. at 343.)

Dr. Lattuga conducted a spine

exam that indicated tenderness, restricted ranges of motion and
spasms in the cervical and thoracolumbar spine.
44.)

(Id. at 343-

The examination revealed that plaintiff had normal

coordination and normal gait, but abnormal motor strength and
decreased sensation in the C6, C7, L5 and S1 bilateral nerve
root distributions.

(Id. at 344.)

Dr. Lattuga reviewed

plaintiff’s April 29, 2009 and April 1, 2010 MRIs and diagnosed
cervical and lumbar spine sprain, radiculopathy and HNP.

(Id.)

Dr. Lattuga reported that he discussed with plaintiff various

16

surgical and non-surgical treatment options, including physical
therapy, epidural steroid injections and medication, and that
plaintiff chose to proceed with conservative treatment to
include physical therapy.

(Id. at 344-45.)

Dr. Lattuga

reported that plaintiff was to consider anterior cervical
discectomy (a surgical procedure) and noted that plaintiff was
to refrain from heavy lifting, carrying and bending.

(Id.)

Dr. Lattuga saw plaintiff for a follow up visit on
October 28, 2010 and requested approval for physical therapy and
a discogram.10

(Id. at 346-48.)

Plaintiff next visited Dr.

Lattuga on January 4, 2011 and indicated a desire to undergo
anterior cervical discectomy and fusion.

(Id. at 349-51.)

Dr.

Lattuga requested approval for physical therapy and a cervical
MRI.11

(Id. at 351.)
On May 11, 2011, Dr. Lattuga performed an anterior

cervical discectomy and fusion on plaintiff at North Shore-Long
Island Jewish Franklin Hospital.

(See id. at 358-60.)

In a

post-operative evaluation dated August 18, 2011, Dr. Lattuga
reported that plaintiff complained of pain, mild hoarseness and
some symptoms consistent with his condition before he had
10

The discogram was conducted on February 15, 2011 by Dr. Norman Schoenberg
at Spine & Joint Services. (Id. at 362-64.) He reported that the CT exam
demonstrated good alignment, that there was no evidence for osteoporosis,
fracture, or metastatic disease, and that the lumbar discs injected were
largely intact other than minor annular tears. (Id. at 363-64.)

11

The MRI, discussed below, was conducted by Dr. Steven Ham at Doshi
Diagnostic Imaging Services on January 26, 2011. (Id. at 357.)

17

undergone surgery.

(Id. at 370-71.)

Dr. Lattuga observed that

plaintiff was doing well and that his neck pain had improved,
but that plaintiff still had residual pain in his lower back and
lower extremities at a level of 8 out of 10.

(Id. at 370.)

Plaintiff’s pain increased with lifting, carrying, bending,
sitting and standing for long periods.

(Id.)

Dr. Lattuga’s

examination revealed that plaintiff suffered tenderness, spasms
and restricted ranges of motion12 in the cervical and lumbar
spine.

(Id.)

Plaintiff had normal coordination and his motor

strength, sensation and reflexes were unchanged from his preoperative condition.

(Id.)

Dr. Lattuga noted that plaintiff

was to begin physical therapy and pain management.
371.)

(Id. at

He recommended that plaintiff refrain from activities

such as lifting, carrying, bending and twisting, which would
exacerbate his pain symptoms.

(Id.)

E. Consultative Examination by Dr. Teli
On or about March 18, 2010, Dr. Iqbal Teli performed
internal medicine and physical examinations of plaintiff at the
request of the Division of Disability Determination.
241-44.)

(Id. at

Dr. Teli noted that plaintiff’s chief complaint was of

a sharp, intense and continuous low back pain that (1) radiated
to the lower extremities bilaterally with numbness, (2)

12

Specifically, plaintiff displayed the following ranges of motion: flexion,
15 degrees (70 degrees is normal); extension, 5 degrees (45 is normal); left
and right turning, 20 degrees (60 is normal).

18

increased when walking and (3) decreased when lying down or
taking medication.

(Id. at 241.)

Plaintiff also complained of

a daily, throbbing pain in the right shoulder that increased
with raising the right arm, decreased with medication and
radiated to the right arm with numbness in the right fingers.
(Id.)

Dr. Teli noted that plaintiff was currently taking

hydrocodone/acetaminophen (5/500 mg) for pain.

(Id.)

Upon physical examination, Dr. Teli noted that
plaintiff was in no acute distress and had a normal gait and
stance, but felt unstable when walking on his heels.

(Id. at

242.)

Plaintiff could complete only a half-squat due to back

pain.

(Id.)

Plaintiff was able to change for the exam, rise

from his chair without difficulty and get on and off the exam
table without assistive devices.

(Id.)

Dr. Teli reported that

plaintiff’s cervical and lumbar spine displayed full flexion,
extension, lateral flexion bilaterally and rotary movement
bilaterally.

(Id. at 243.)

Plaintiff’s straight-leg raise test

while supine was positive on both the right side (at 40 degrees)
and the left side (at 50 degrees).

(Id.)

Plaintiff’s straight-

leg raise test while sitting was negative bilaterally.

(Id.)

Plaintiff’s right shoulder forward elevation and abduction were
both 90 degrees, and the right side elbow flexion was 100
degrees.

(Id.)

Grip strength on the right side was 4/5.

Measurements of the left shoulder elevation and abduction, left

19

side elbow flexion, and left side grip strength were normal.
(Id.)

Plaintiff displayed full range of motion of the forearms,

wrists, hips, knees and ankles, with full strength in upper and
lower extremities.

(Id.)

Overall, Dr. Teli gave a prognosis of fair and opined
that plaintiff had a mild restriction for squatting, overhead
activity and lifting and carrying with the right arm.

(Id. at

244.)
F. Testimony from Plaintiff
In an application to the Division of Disability
Determinations of the New York State Office of Temporary and
Disability Assistance dated February 10, 2010, plaintiff
reported that his daily activities included taking short walks
at least once a day, feeding a neighbor’s dog, reading and
watching television.

(Id. at 150-55.)

He stated that he no

longer shopped, prepared his own meals, exercised or engaged in
social activities.

(Id.)

At the administrative hearing on

March 15, 2011, plaintiff reaffirmed that he did not cook, shop,
clean, visit friends or relatives, drive or take the subway due
to discomfort, and sometimes had trouble dressing himself.
at 43-47.) His girlfriend and her children, with whom he

(Id.

currently lives, assist him with daily living tasks.

(Id.)

At the hearing on March 15, 2011, plaintiff stated
that his daily activities included taking short walks every

20

other day for about ten minutes.

(Id. at 47.)

He reported that

he was able to walk about half a block before feeling pain in
his hips and knees, at which point he would stop and rest for 10
to 15 minutes.

(Id. at 40-41.)

Plaintiff said that he could

not kneel or bend because of pain, and had trouble sitting for
more than 10 or 15 minutes due to neck and back pain and
numbness in his legs.

(Id. at 41-42.)

He reported being unable

to stand on his feet for more than 15 to 20 minutes before
feeling pain.

(Id.)

Plaintiff also stated that he was able to

lift objects up to five points, although he was unable to grip
or hold objects for long, including writing implements, without
soreness and pain.

(Id. at 42-43.)

As indicated by his treatment history and hearing
testimony, plaintiff has undergone various pain treatment
methods.

In addition to receiving multiple epidural injections

and undergoing spinal surgery in May 2011 (see id. at 359-60),
plaintiff took medication at various points to manage his pain
symptoms.

In January 2010, plaintiff reported using

oxycodone/APAP (the generic equivalent of Percocet) for pain, as
prescribed by Dr. McGee.

(Id. at 143.)

In February 2010,

plaintiff reported taking acetaminophen—codeine #3 every four
hours as needed, though it did not relieve his pain for a long
time.

(Id. at 158.)

In April 2010, plaintiff reported taking

21

Percocet and Relafen for pain, as prescribed by Dr. Rovner.
(Id. at 163.)
At the time of the hearing, plaintiff reported that he
was not currently on pain medication because his treating
physician, Dr. McGee, did not want plaintiff to develop an
addiction; instead, plaintiff was taking Ambien to help him
sleep.

(Id. at 28, 30, 36.)

Plaintiff also complained of daily

persistent headaches, for which he took Excedrin.
50.)

(Id. at 49-

Plaintiff reported using a TENS unit13 for his pain two to

three times a day for 20 minutes at a time.

(Id. at 28, 30.)

He also said that he had been seeing a chiropractor, Dr. Susi,
for the past two years, two to three times a week, for neck and
back adjustments, which would relieve pressure for about half an
hour.

(Id. at 31-32.)

III. Procedural History
An application was previously filed with the Social
Security Administration (“SSA”) on plaintiff’s behalf when
plaintiff was a minor.

(Id. at 168.)

The claim was denied

after a March 1995 hearing, but the basis of the decision is
unclear from the record.

(Id.)

Plaintiff applied for SSD

benefits on January 28, 2010, alleging disability since February
24, 2009.

(Id. at 130.)

The Regional Commissioner denied

13

A transcutaneous electrical nerve stimulation (TENS) applies an electric
current to nerves via the skin in order to relieve pain. WebMD, TENS for
Back Pain, http://www.webmd.com/back-pain/guide/tens-for-back-pain (last
visited Oct. 24, 2014).

22

plaintiff’s claim on March 25, 2010, citing plaintiff’s ability
to “perform light work.”

(Id. at 78-81.)

On April 22, 2010,

plaintiff requested an administrative hearing to review the
SSA’s decision.

(Id. at 86.)

The hearing took place on March

15, 2011 with ALJ Sol Wieselthier presiding.

(See generally id.

at 21-52.)

Plaintiff, represented by counsel, appeared and

testified.

(Id. at 23, 25-52.)
During the hearing, Dr. Louis Lombardi, a state

medical examiner who had not examined plaintiff, gave his
opinion on the medical evidence in the administrative record.
(Id. at 53-71.)

In addition, the ALJ heard testimony from

Andrew Kozinik, a vocational expert.

(See id. at 62-69.)

At

the conclusion of the hearing, the ALJ agreed to hold the
administrative record open for an additional week for plaintiff
to submit an update from Dr. Lattuga.

(Id. at 71.)

After the hearing, plaintiff sent three additional
exhibits to the ALJ, which were forwarded to Dr. Lombardi.
id. at 365.)

(See

The first exhibit was a report from Doshi

Diagnostic analyzing an MRI of plaintiff’s cervical spine, which
describes straightening of the normal cervical lordosis, a small
right paracentral disc herniation at the C5/C6 disc space and
diffuse disc bulge at the C3/C4, C4/C5 and C6/C7 disc spaces.
(Id. at 357.)

Plaintiff also submitted documents from Dr.

Lattuga regarding plaintiff’s then-upcoming surgery.

23

(Id. at

358-61.)

The third exhibit contained results from a discogram,

lumbosacral spine radiographic series and CT/discogram of the
lumbosacral spine, which revealed that plaintiff had (1) minor
inner annular tears of the lumbar discs injected, though the
discograms of the L3-4, L4-5 and L5-S1 discs were negative, and
(2) minimal osteoarthritis of the L3-4 through L5-S1 facet
joints.

(Id. at 362-64.)

Accompanying the new exhibits was a

form letter for Dr. Lombardi’s completion, which was returned,
unsigned and undated, with a checkmark indicating that Dr.
Lombardi would not change his testimony in light of the
additional evidence provided.

(Id. at 367.)

In a decision dated July 13, 2011, the ALJ denied
plaintiff’s claim of disability.

(Id. at 11, 17.)

According to

the insurance coverage requirements of the Act, plaintiff would
have to establish disability on or before December 31, 2013.
(Id. at 11.)

Using the five-step evaluation process disability

determination provided in 20 CFR § 404.1520(a), the ALJ held
that plaintiff did not establish a disability within the meaning
of the Act through the date of his decision.

(Id. at 11.)

Under the first step, the ALJ found that plaintiff had
not engaged in “substantial gainful activity” since the date of
his accident.

(Id. at 13.)

Under the second step, the ALJ

found that plaintiff had “severe” impairments within the meaning
of the regulations.

(Id.)

Under the third step, the ALJ found

24

that plaintiff’s impairments failed to meet or medically equal
the criteria of an impairment listed in 20 CFR §§ 404.1520(d),
404.1525 and 404.1526.

(Id. at 14.)

Specifically, the evidence

did not show nerve root compression, an inability to perform
gross and fine movements or an inability to ambulate
effectively.

(Id.)

Proceeding to the fourth step, the ALJ

determined that plaintiff had the residual functional capacity
to perform “the full range of light work as defined in 20 CFR
404.1567(b): lifting and carrying twenty pounds occasionally and
ten pounds frequently; standing, walking and sitting six hours
out of an eight-hour workday.”

(Id.)

Although the ALJ found

that plaintiff’s impairments could reasonably be expected to
cause the symptoms he experienced, he determined that
plaintiff’s statements regarding the “intensity, persistence,
and limiting effects” of those symptoms were not credible to the
extent that they conflicted with medical evidence in the record.
(Id. at 15-16.)

The ALJ concluded that plaintiff had the

residual functional capacity (“RFC”) to perform clerical work
and met the duration, recency and earnings requirements for the
capacity to engage in “substantial gainful activity.”

(Id. at

16-17.)
Plaintiff timely submitted a request for review by the
Appeals Council.

(Id. at 125-29.)

While the request for review

was pending, plaintiff submitted a post-operative evaluation

25

from Dr. Lattuga demonstrating that plaintiff underwent anterior
cervical disc fusion surgery on May 19, 2011.

(Id. at 368-71.)

The Appeals Council denied review on January 28, 2013, rendering
the ALJ’s decision the final administrative decision on
plaintiff’s application for disability benefits.

(Id. at 1-3.)

Plaintiff appealed the ALJ’s decision to this court on
March 29, 2013.

Defendant moved for judgment on the pleadings

pursuant to Fed. R. Civ. P. 12(c) affirming that the ALJ’s
decision was legally sufficient and supported by substantial
evidence.

(Def. Mem. at 1.)

Plaintiff cross-moved for judgment

on the pleadings vacating the ALJ’s decision, arguing that the
ALJ committed legal error by failing to properly consider
medical evidence from plaintiff’s treating physicians.

(Pl.

Mem. at 1.)
DISCUSSION
I.

Standard of Review
The reviewing court does not engage in a de novo

determination of whether the plaintiff is disabled.
Harris, 626 F.2d 225, 232 (2d Cir. 1980).

Parker v.

Instead, the

reviewing court assesses (i) whether proper legal standards for
disability determination were applied, and (ii) whether
substantial evidence supports the findings of fact.
v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).

Id.; Mimms

If the

Commissioner’s decision applies the correct legal standards and

26

is supported by substantial evidence, the decision must stand.
See Grace v. Astrue, No. 11 Civ. 9162, 2013 WL 4010271, at *12
(S.D.N.Y. July 31, 2013).
In order to assess the legal standards and evidentiary
support used by the ALJ in his disability finding, the reviewing
court must be certain that the ALJ considered all the evidence.
Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289 (E.D.N.Y.
2004); see Carnevale v. Gardner, 393 F.2d 889, 891 (2d Cir.
1968) (“We cannot fulfill the duty entrusted to us, that of
determining whether the Hearing Examiner's decision is in
accordance with the Act, if we cannot be sure that he considered
some of the more important evidence presented[.]”).
When reviewing decisions of the SSA, the district
court is authorized to order additional proceedings.

See 42

U.S.C. § 405(g) (“[t]he court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing”).

Remand is appropriate to allow the ALJ

to further develop the record, make more specific findings, or
clarify his or her rationale.

See Grace v. Astrue, 2013 WL

4010271, at *14; see also Butts v. Barnhart, 399 F.3d 277, 38586 (2d Cir. 2004).

When the reviewing court has “no apparent

basis to conclude that a more complete record might support the

27

Commissioner’s decision,” it may remand for the sole purpose of
calculating benefits.

Butts, 399 F.3d at 385-86.

A. Legal Standards Governing Agency Determinations of
Disability
1. The Commissioner’s Five-Step Analysis
The Social Security Act defines disability as a
claimant’s “inability to engage in any substantial gainful
activity by reasons 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[.]”
U.S.C. § 423(d)(1)(A).

42

Furthermore, a claimant is disabled

under the Act only if “his physical or mental impairment or
impairments are 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[.]”
§ 423(d)(2)(A).

42 U.S.C.

The Commissioner “shall consider the combined

effect of all of the individual’s impairments without regard to
whether any such impairment, if considered separately, would be
of such severity” in determining eligibility for benefits.

42

U.S.C. § 423(d)(2)(B).
Under SSA regulations, the Commissioner must proceed
through a five-step analysis to determine whether a claimant is
disabled.

The claimant bears the burden of proving “(1) that

28

the claimant is not working, (2) that he has a ‘severe
impairment,’ (3) that the impairment is not one [listed in
Appendix 1 of the regulations] that conclusively requires a
determination of disability, and (4) that the claimant is not
capable of continuing in his prior type of work[.]”

Green-

Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting
Draegert v. Barnart, 311 F.3d 468, 472 (2d Cir. 2002)) (internal
quotations omitted).

In the fourth step, the Commissioner

assesses the claimant’s RFC, defined as “the most the claimant
can still do in a work setting despite the limitations imposed
by his impairments.”

Selian v. Astrue, 708 F.3d 409, 418 (2d

Cir. 2013) (citing 20 C.F.R. § 404.1545).

If the claimant

carries his burden through the first four steps, then the
Commissioner must find him disabled if “(5) there is not another
type of work the claimant can do,” as determined by the SSA.
Green-Younger, 335 F.3d at 106 (internal quotations omitted).
2. The Treating Physician Rule
In determining whether a claimant is disabled, the
Commissioner considers all medical opinions received “together
with the rest of the relevant evidence.”
404.1527(b).

20 C.F.R. §

The SSA regulations also codified the “treating

physician rule,” which dictates that the Commissioner must give
“controlling weight” to a treating source’s opinion “on the
issue(s) of the nature and severity” of a claimant’s impairments

29

as long as the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see

also Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).

In

general, such deference to treating physicians is warranted
because treating sources are “most able to provide a detailed,
longitudinal picture . . . and may bring a unique perspective to
the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations.”

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

When the Commissioner declines to give controlling
weight to a treating source’s opinion, the regulations require
that he or she must “always give good reasons” for the amount of
weight given.

Id.; see Halloran v. Barnhart, 362 F.3d 28, 33

(2d Cir. 2004) (remand is appropriate where the ALJ has not
comprehensively set forth good reasons for the weight accorded
to treating physicians).

The Commissioner will decide the

weight of each opinion according to the frequency of
examination; the length, nature and extent of the treatment
relationship; and the supportability, consistency and
specialization of the opinion, along with other relevant
factors.

20 C.F.R. §§ 404.1527(c), 416.927(c).

30

The

Commissioner can use these factors in providing “good reasons”
for declining to give controlling weight to treating physicians.
Failure to provide “good reasons” is grounds for a remand.

See

Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (finding legal
error when the ALJ failed to consider all of the factors in the
SSA regulations); see also Halloran, 362 F.3d at 33.
3. The ALJ’s Affirmative Duty to Develop the Record
According to the SSA regulations, the Commissioner
must “make every reasonable effort” to assist the claimant in
developing a “complete medical history.”
404.1512(d).

20 C.F.R. §

Furthermore, “[i]t is the rule in our circuit that

the ALJ, unlike a judge in a trial, must [her]self affirmatively
develop the record in light of the essentially non-adversarial
nature of a benefits proceeding.

This duty . . . exists even

when, as here, the claimant is represented by counsel.”

Pratts

v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (internal citations and
quotations omitted).

Thus, if the claimant’s medical record is

inadequate, it is “the ALJ’s duty to seek additional information
from the [treating physician] sua sponte.”

Schaal, 134 F.3d at

505; see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[A]n
ALJ cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative
record.”).

31

The ALJ’s affirmative duty comports with this
Circuit’s observation that “the Social Security Act is remedial
or beneficent in purpose, and, therefore, to be broadly
construed and liberally applied.”

Cutler v. Weinberger, 516

F.2d 1282, 1285 (2d Cir. 1975) (internal quotations omitted).
The Act’s “intent is inclusion rather than exclusion.”

Marcus

v. Califano, 615 F.2d 23, 29 (2d Cir. 1979).
4. Admissibility of Medical Evidence
The regulations provide that “[a]ll consultative
examination reports will be personally reviewed and signed by
the medical source who actually performed the examination.

This

attests to the fact that the medical source doing the
examination or testing is solely responsible for the report
contents and for the conclusions, explanations or comments
provided[.]”

20 C.F.R. §§ 404.1519n(e), 416.919n(e).

Some districts have recognized that a follow-up
response from a consultative examining physician constitutes a
report for purposes of the requirement.

See, e.g., Scott v.

Shalala, 898 F. Supp. 1238, 1251 (N.D. Ill. 1995).

However,

this requirement by its terms applies only to the reports of
examining sources; non-examining sources face no similar
signature requirement.

Genovese v. Astrue, No. 11–CV–02054,

2012 WL 4960355, at *19 (E.D.N.Y. Oct. 27, 2012) (citing Lackner
v. Astrue, No. 09–CV–00895, 2011 WL 2470496, at *7 (N.D.N.Y. May

32

26, 2011), report and recommendation adopted, 2011 WL 2457852
(N.D.N.Y. Jun. 20, 2011)).
B. Substantial Evidence Standard
If “substantial evidence, considering the record as a
whole” supports the Commissioner’s determination of disability,
the “conclusion must be upheld.”

See McIntyre v. Colvin, 758

F.3d 146, 149 (2d Cir. 2014); 42 U.S.C. § 405(g); see Williams
ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(“[A]n analysis of the substantiality of the evidence must also
include that which detracts from its weight.”).
evidence is “more than a mere scintilla.

Substantial

It means such relevant

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

Richardson v. Perales, 402 U.S. 389, 402

(1971) (internal quotation marks omitted).
II.

Application

A. The ALJ Erred by Failing to Explain the Weight Accorded to
Treating Physicians’ Opinions
Plaintiff argues that the ALJ’s failure to give
controlling weight to opinions from plaintiff’s treating
physicians, particularly Dr. Rovner, requires a remand.
Mem. at 23-28.)

(Pl.

Defendant responds that the ALJ properly

weighed the medical opinions by instead giving controlling
weight to the opinions of the consultative examiner and nonexamining medical expert.

(Def. Reply at 2.)

33

For the reasons

discussed below, the court finds that the ALJ’s failure to give
“good reasons” for the weight he accorded to the opinions of Dr.
Rovner and plaintiff’s other treating physicians warrants
remand.
The weight accorded to medical evidence, including the
opinions of examining sources, is within the discretion of the
ALJ.

Although the regulations describe a general expectation

that the opinions of treating physicians—in particular those
whose treating relationships afford a longitudinal perspective
on plaintiff’s impairments—will receive controlling weight in
the ALJ’s determination of disability under the Act, the ALJ may
decline to accord controlling weight if the treating physicians’
opinions are contradicted by other substantial evidence in the
record.

Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).

In

that case, the ALJ is to consider all the medical evidence
together and factors including the frequency of examination; the
length, nature and extent of the treatment relationship; and the
supportability, consistency and specialization of the opinion to
determine the appropriate weight to give to the treating
source’s opinion.

20 C.F.R. §§ 404.1527(b)-(c).

When the ALJ declines to accord controlling weight to
a treating source’s opinion, he must give “good reasons” for his
decision.

20 C.F.R. § 404.1527(c)(2).

Specifically, the ALJ

must articulate his reasoning with regard to the above factors,

34

but he failed to do so in the instant action.

See Schaal, 134

F.3d at 503-505 (finding legal error in ALJ’s decision due to
failure to consider all of the factors in the SSA regulations);
Hanes v. Comm’r of Soc. Sec., No. 11–CV–1991, 2012 WL 4060759,
at *15 (E.D.N.Y. Sept. 14, 2012) (remanding when the ALJ gave
greater weight to a consultative physician’s opinion than a
treating physician’s opinion without indication that the ALJ
considered, inter alia, the frequency of examination and length,
nature and extent of the treatment relationship; the evidence in
support of the opinion; whether the opinion is from a
specialist; and other relevant factors).
In the present case, the ALJ relied primarily on the
opinions of Dr. Lombardi, the testifying medical expert who
never examined the plaintiff, in finding that plaintiff had the
RFC to perform the full range of light work and chose not to
accord controlling weight to any of plaintiff’s treating
physicians’ opinions in the record.

(Tr. 15.)

The ALJ gave Dr.

Rovner’s opinion “little weight” because (1) “the objective
medical evidence does not support the opinions related to
claimant’s functional limitations and [the opinions] are
inconsistent with the substantial evidence of record,” although
the ALJ did not provide specifics, and (2) plaintiff testified
that he could lift five pounds, contradicting Dr. Rovner’s
statement that plaintiff could lift zero pounds.

35

(Id. at 15.)

Dr. Rovner, a board-certified orthopedic surgeon, examined
plaintiff every month from January to July 2010.

Dr. Rovner

diagnosed plaintiff with persistent cervical and lumbar
discogenic radiculopathy and administered several epidural
spinal injections to manage plaintiff’s pain.

In his July 5,

2010 report, Dr. Rovner opined that plaintiff could stand or
walk for one to two hours and sit for one to three hours in an
eight-hour workday; would be impaired in reaching, handling,
pushing and pulling; could not lift any weight; and could not
stoop, climb, kneel, balance, crouch or crawl.
Although the ALJ need not accept a treating
physician’s opinion as dispositive of the disability
determination, he must reconcile the conflicting RFC
determinations of the doctors in the record and explain his
reasons for declining to credit the treating physician’s
opinion.

20 C.F.R. § 404.1527; Gunter v. Comm'r of Soc. Sec.,

361 Fed. App’x 197, 199 (2d Cir. 2010).

The ALJ failed to

reconcile the conflicting RFC determinations and failed to
explain why he did not credit the opinions of plaintiff’s
treating physicians.

Instead of analyzing the factors outlined

in the SSA regulations in determining how much weight to give to
Dr. Rovner’s opinion, however, the ALJ made conclusory
statements that the opinion was not supported by “objective
medical evidence” or “substantial evidence of record.”

36

Furthermore, the only conflicting evidence cited in the ALJ’s
decision to discredit Dr. Rovner’s opinion14 is plaintiff’s
testimony that he could lift five pounds at a time, which
differs minimally with Dr. Rovner’s assessment that plaintiff
could not lift and/or carry any weight.

Thus, the ALJ’s failure

to adequately explain his decision to reject the opinions of Dr.
Rovner necessitates remand so that the ALJ can conduct the
requisite analysis.

See Lopez-Tiru v. Astrue, No. 09-CV-1638,

2011 WL 1748515, at *4 (E.D.N.Y. May 5, 2011)
Neither did the ALJ provide sufficient explanation for
rejecting the opinions of Dr. McGee, who treated plaintiff from
February 2009 to January 2011, and Dr. Lattuga, a boardcertified orthopedist who examined and conducted surgery on
plaintiff in 2010 and 2011.

The ALJ concluded that Dr. McGee’s

opinion also deserved little weight because (1) “issues of
disability are reserved to the Commissioner” and (2) Dr. McGee
did not specify how long plaintiff’s pain would render him
unable to return to work.

(Id. at 15.)

The ALJ correctly noted

that Dr. McGee’s opinions concerning plaintiff’s disability are
not determinative; rather, the ultimate determination of
14

The ALJ did note separately that he accorded “great weight” to the opinion
of non-examining medical expert Dr. Lombardi, who testified that plaintiff
could lift 20 pounds and sit for six to eight hours in an eight-hour workday.
(Tr. 15.) The ALJ, however, did not give any indication as to why he chose
to assign great weight to Dr. Lombardi’s opinion over any of plaintiff’s
treating physicians, other than to note that Dr. Lombardi adequately
considered the evidence of record. (Id.) Therefore, it is unclear what
evidence existed in the record to justify the ALJ’s decision to give “little
weight” to Dr. Rovner’s opinion.

37

disability is reserved to the Commissioner.
404.1527(e)(1).

20 C.F.R. §

Dr. McGee’s medical records, however, include

much more than a bare statement of disability, and his opinions
as to the severity of plaintiff’s impairments must be weighed
according to the factors set out in the SSA regulations if they
are not to be assigned controlling weight.

The ALJ failed to

consider explicitly the extent of Dr. McGee’s treating
relationship, his specialization or the support for and
consistency of his medical opinions with the record.
omission by itself is grounds for a remand.15

This

See Halloran, 362

F.3d at 33.
The ALJ similarly assigned limited weight to the
opinion of Dr. Lattuga after finding that “it [was] not
inconsistent with the overall evidence of record.”

The ALJ’s

decision provides no explanation as to why consistency with the
record should warrant “limited weight.”

The ALJ failed to

supply good reasons, as established by the regulations and the
caselaw in this Circuit, and his analysis must be supplemented
on remand.

15

Additionally, when the ALJ lacks information necessary to determine the
weight or validity of medical evidence, it is his affirmative duty to develop
the record in this regard. See Schaal, 134 F.3d at 505. To the extent the
ALJ identified a lack of pertinent information about Dr. McGee’s opinion, he
had a duty to seek out that information before assigning “little weight” to
the opinion as a whole.

38

The ALJ also noted that, although he was giving
limited weight to Dr. Lattuga’s opinions, the doctor “did not
give specific impairments.”

The ALJ, however, did not elaborate

on how Dr. Lattuga’s treatment of plaintiff factored into the
determination of the weight given by the ALJ to Dr. Lattuga’s
opinion.

(Tr. 15.)

In any event, it is unclear what absence of

impairments the ALJ refers to in the treatment records from Dr.
Lattuga, as the doctor diagnosed plaintiff with cervical and
lumbar spine sprain, radiculopathy and HNP.
id. at 15.)

(Id. at 344; see

Furthermore, Dr. Lattuga ultimately deemed

necessary and performed an anterior cervical discectomy and
fusion surgery on plaintiff to “remove . . . damaged cervical or
lumbar disk(s) [and] replace [them with] implants” in order to
“stabilize [the] spine.”

(Id. at 359-60.)

Thus, because Dr.

Lattuga’s records expressly detail specific physical
impairments, the ALJ’s statement does not appear to support his
decision to accord Dr. Lattuga’s opinion limited weight.
The Commissioner has also failed to explain whether
and how he weighed the abundant and objective medical evidence
in the record, including MRIs, discograms, x-rays and physical
examinations by plaintiff’s treating physicians, all of which
established determinable physical impairments lasting for a
continuous period of not less than twelve months.

The SSA

regulations regarding evidence from treating physicians ensure

39

that plaintiff understands why the ALJ declines to give
controlling weight to the findings and opinions of plaintiff’s
treating physicians.

See Snell, 177 F.3d at 134 (“[the

plaintiff] is not entitled to have [her treating physician’s]
opinion on the ultimate question of disability be treated as
controlling, but she is entitled to be told why the Commissioner
has decided—as under appropriate circumstances is his right—to
disagree with [her treating physician]”); 20 CFR 404.1527(d)(2).
Thus, for the reasons discussed above, the case must be remanded
so that the ALJ can accord the appropriate weight to the
opinions of plaintiff’s treating physicians and, if the opinions
are discounted, conduct the analysis required by 20 C.F.R. §
404.1527(d)(2) and the law in this Circuit to support his
determinations.
B. The ALJ’s Failure to Weigh Evidence Supporting Plaintiff’s
Subjective Complaints of Pain Also Supports Remand
In addition to the reasons warranting remand, as
discussed above, the court finds that the ALJ erred by failing
to weigh and discuss available evidence that likely would have
influenced his decision to discredit plaintiff’s allegations of
pain and disability.

While evaluating a plaintiff’s testimony

regarding his impairment and symptoms, the ALJ must take into
account all relevant evidence.

Grace v. Astrue, 2013 WL

4010271, at *20 (internal citations omitted); see also Lugo v.

40

Chater, 932 F. Supp. 497, 503 (S.D.N.Y. 1996) (finding ALJ erred
by relying solely on evidence emphasizing plaintiff’s health and
ignoring evidence emphasizing plaintiff’s frailty).
Pain alone is not determinative of disability but is a
factor in combination with supporting medical evidence.

Lugo,

932 F. Supp. at 505 (memorandum opinion and order on rehearing).
When evaluating the intensity and persistence of a plaintiff’s
symptoms, the ALJ must determine whether the objective medical
evidence supports the symptoms to the extent alleged.

Grace v.

Astrue, 2013 WL 4010271, at *21 (internal citations omitted).
Objective medical evidence includes “evidence of reduced joint
motion, muscle spasm, sensory deficit or motor disruption.”
C.F.R. § 404.1529(c)(2).

20

If a plaintiff experiences a degree of

pain greater than the objective medical evidence supports, the
Commissioner will also consider the plaintiff’s daily
activities; the location, duration, frequency, and intensity of
pain; the type, dosage, effectiveness and side effects of
medication taken to alleviate pain; treatment other than
medication; measures to relieve pain and other factors.

20

C.F.R. § 1529(c)(3).
The ALJ rejected plaintiff’s claims “concerning the
intensity, persistence, and limiting effects” of his symptoms as
not credible to the extent they were inconsistent with the ALJ’s
RFC assessment.

(Tr. 16.)

However, the ALJ’s opinion fails to

41

mention plaintiff’s scheduled surgery, multiple epidural
injections, past prescriptions of pain medication, limited daily
activities, and measures to relieve pain other than medication.
It is therefore unclear whether the ALJ considered this evidence
in his decision.

Because the ALJ must explain how he reached

his final credibility determination where there is conflicting
evidence in the record, the case must be remanded.

See Lugo,

932 F. Supp. at 503.
The ALJ’s opinion further states that “[t]reatment
notes in the record do not sustain claimant’s allegations of
disabling pain.”

(Tr. 16.)

This statement is undermined,

however, by objective medical evidence from treating physicians’
notes, x-rays, MRIs, examinations and reports, which constitute
the bulk of the administrative record.

Specifically, Dr.

Freeman reported in 2009 that plaintiff experienced reduced
range of motion in his shoulder, neck, and back.

(Id. at 227.)

Dr. Rovner reported in 2010 that plaintiff displayed a limited
range of motion of the cervical and lumbar spine, and spasm of
the cervical and lumbar spine.

(Id. at 222-23.)

Other treating

physicians’ notes also support plaintiff’s claims of pain.

Dr.

McGee consistently reported plaintiff’s rating of pain as 8 or 9
on a scale of 10 and that plaintiff could not return to work due
to disabling pain.

Dr. Freeman, who examined plaintiff seven

times from August to December 2009, noted that plaintiff

42

experienced pain and was disabled, and recommended at various
points that he receive an MRI, refrain from working, undergo
physical therapy, and see Dr. Aron Rovner about his spine.
at 226-29, 233.)

(Id.

Dr. Berkowitz noted that conservative

treatment was insufficient to relieve plaintiff of his pain
symptoms.

(Id. at 356.)
Other than the conclusory statements that plaintiff’s

allegations of pain and disability are not supported by the
record and the ALJ’s RFC determination, the ALJ’s decision is
silent as to why plaintiff’s allegations are not credible.
Thus, the court finds that remand is warranted to ensure that
the ALJ considered and weighed the available evidence in the
record, and that he explains his credibility determinations
regarding plaintiff’s subjective complaints of pain.16
C. The ALJ Must Consider the Evidence Submitted After the
Hearing
Plaintiff argues that the ALJ could not have
considered the evidence of plaintiff’s need for surgery and his
cervical disc fusion because the response submitted by Dr.
Lombardi after he received plaintiff’s post-hearing evidence was
unsigned.

(See Pl. Mem. at 19; Pl. Reply at 2-3.)

Because the

SSA regulations requiring a doctor’s signature do not apply to
16

Because the ALJ’s failure to (1) provide good reasons for not giving
plaintiff’s treating physicians’ opinions controlling weight necessitates
remand and (2) explain his evaluation of plaintiff’s subjective complaints of
pain, the court does not reach the question of whether the ALJ’s decision was
supported by substantial evidence.

43

non-examining physicians, the ALJ did not violate the
regulations when he relied on an unsigned follow-up response
from Dr. Lombardi, a non-examining medical advisor.

See 20

C.F.R. §§ 404.1519n; 416.919n (“The medical sources who perform
consultative examinations will have a good understanding of our
disability programs and their evidentiary requirements. . . .
All consultative examination reports will be personally reviewed
and signed by the medical source who actually performed the
examination.”) (emphasis added).

The ALJ nevertheless has a

duty to consider all the evidence before him and cannot rely on
Dr. Lombardi’s opinion of the additional evidence without
confirming that Dr. Lombardi indeed reviewed the evidence and
prepared the response letter.
Following the administrative hearing, and with the
permission of the ALJ (see Tr. 177-78), plaintiff submitted
additional evidence for inclusion in the record.
64.)

(Id. at 357-

The ALJ forwarded this evidence, including a radiology

report from Doshi Diagnostic dated January 26, 2011, treatment
records indicating that plaintiff was to undergo surgery with
Dr. Lattuga on May 11, 2011 and a medical report from Spine &
Joint Services dated February 15, 2011, to Dr. Lombardi, who had
testified at the administrative hearing that plaintiff had the
RFC to perform light work.

(Id.)

The ALJ requested that Dr.

Lombardi advise the ALJ as to whether Dr. Lombardi’s testimony

44

would change after reviewing the new exhibits.

(Id. at 365.)

The ALJ included with the exhibits a form response letter with
the following contents:
Date:
[. . .]
Re: Kyan L. Mullings
SSN: [withheld]
Dear Judge Wieselthier:
I received the additional medical exhibit(s) on
the above-named individual. I have reviewed the
evidence retained in my file in this matter and I
recall the testimony given by me and upon the
examination of the material submitted subsequent
thereto, I find that in accordance therewith:
___ This evidence will change my testimony for
the following reasons:
___ This evidence will not change my testimony.
Sincerely yours,
Louis J. Lombardi
Medical Expert’s Signature
(Id. at 366.)

The form letter was returned to the ALJ undated

and unsigned, with only a handwritten checkmark added next to
the statement “This evidence will not change my testimony.”
(Id. at 367.)

In his decision, the ALJ noted that “Dr. Lombardi

also stated that evidence received after the hearing would not
change his testimony.”
Plaintiff argues that this response letter is a report
under 20 C.F.R. §§ 404.1519n(e) and 416.919n(e), which require
that “[a]ll consultative examination reports . . . be personally

45

reviewed and signed by the medical source who actually performed
the examination.”

(See Pl. Reply at 2-3.)

If a report under

Sections 404.1519n(e) and 416.919n(e) does not show clearly that
a physician completed the report, the ALJ may not rely on the
report.

See Dambrowski v. Astrue, 590 F. Supp. 2d 579, 585

(S.D.N.Y. 2008) (declining to give any weight to a RFC
assessment when it was unclear who completed it); Amaker v.
Apfel, No. 98 CV 0762, 1999 WL 390694, at *1 (E.D.N.Y. Mar. 31,
1999) (Appeals Council remanded for legal error when ALJ relied
in part on an unsigned consultative examination report).
Because Dr. Lombardi is a non-examining consultative
source, however, the signature requirements for consultative
examination reports generally do not apply.

See Genovese, 2012

WL 4960355, at *19 (allowing the ALJ to rely on a non-examining
psychiatrist’s report in which the psychiatrist typed his
signature); Lackner, 2011 WL 2470496, at *6 (no signature
requirement for non-examining source’s report on which she typed
her name and the date).
Nonetheless, the importance of a signature is that it
“attests to the fact that the medical source doing the
examination or testing is solely responsible for the report
contents and for the conclusions, explanations or comments
provided[.]”

20 C.F.R. §§ 404.1519n(e), 416.919n(e).

Unlike

the cases cited above, Dr. Lombardi did not type his name in

46

lieu of a signature on his response; his name had already been
typed on the letter, and the only change made to the pre-typed
letter was a handwritten checkmark.

As a result, the court is

left to guess whether Dr. Lombardi in fact wrote the checkmark
on the pre-typed letter and reviewed the additional evidence
that plaintiff submitted.

Therefore, even though a consultative

non-examining source need not sign his or her reports by hand,
the court respectfully directs the ALJ on remand to confirm that
Dr. Lombardi received the letter, reviewed the additional
evidence, recalled his testimony and would not change his
testimony in light of the evidence.
CONCLUSION
For the foregoing reasons, the court denies
defendant’s motion for judgment on the pleadings, denies
plaintiff’s motion insofar as it seeks remand solely for the
calculation of benefits and remands this case for further
proceedings consistent with this opinion.

Upon remand, the ALJ

should:
(1) Expressly set forth specific reasons for the weight
given to plaintiff’s treating physicians and develop the
record as necessary to accord proper weight to medical
opinions;
(2) Consider all evidence, including objective medical
tests, examinations, x-rays, reports and MRIs probative of
the intensity, persistence, and limiting effects of
plaintiff’s pain symptoms; and

47

(3) Obtain a response from Dr. Louis Lombardi that
indicates that he recalled his hearing testimony, reviewed
the additional evidence provided by plaintiff, and would
not change his testimony in light of the evidence.
The Clerk of the Court is respectfully requested to
close the case.
SO ORDERED.
Dated:

Brooklyn, New York
November 21, 2014
_____/s/_____________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

48