Marchetti v. Colvin

Filing 25

ORDER denying 10 Motion for Summary Judgment; denying 17 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. For the reasons stated in the attached Memorandum and Order, the court denies both parties cross- motions for judgment on the pleadings, andremands this case for further proceedings consistent with the attached opinion. The clerk of the court is respectfully requested to close this case. Ordered by Judge Kiyo A. Matsumoto on 12/24/2014. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------X
CATHERINE MARCHETTI,

NOT FOR PUBLICATION 

Plaintiff,

-against-

MEMORANDUM AND ORDER  
13-CV-02581(KAM) 

CAROLYN W. COLVIN,  
ACTING COMMISSIONER OF 
SOCIAL SECURITY 

Defendant.
-----------------------------X 

MATSUMOTO, United States District Judge: 

Pursuant to 42 U.S.C. § 405(g), plaintiff Catherine
Marchetti (“plaintiff”), appeals the final decision of defendant
Carolyn W. Colvin, Acting Commissioner of Social Security
(“Commissioner” or “defendant”), which denied plaintiff’s
application for Social Security Disability (“SSD”) benefits
under Title II of the Social Security Act (“the Act”).
Plaintiff contends that she is disabled within the meaning of
the Act as a result of injuries to her spine sustained during an
accident on October 28, 2009. Plaintiff’s medical history also
indicates left-side cubital tunnel syndrome and bilateral carpal
tunnel syndrome. Plaintiff claims that her disability entitles
her to receive SSD benefits.

Presently before the court are the

parties’ cross-motions for judgment on the pleadings.

For the

reasons stated below, both parties’ motions are denied and this

1 

case is remanded to the ALJ for further proceedings consistent
with this Memorandum and Order. 
BACKGROUND 
I.

Personal & Treatment History
Catherine Marchetti was 52 years old on May 5, 2010, the

disability onset date.

(Administrative Record (“Tr.”), 141.)

At that time, she lived with her husband in a house in
Brentwood, N.Y.

(Tr. 176-77.). She has a high school diploma

(Tr. 169), and she had worked as a school bus driver for around
25 years. (Tr. 60, 160, 169, 192-193, 201).1

Prior to becoming a

bus driver, plaintiff had worked for eight years as a
hairdresser and manicurist. (Tr. 201.) Plaintiff was 5’6” tall
and weighed approximately 220 pounds around the time her alleged
disability began. (Tr. 168.)  
On October 28, 2009, plaintiff slipped on a step while
disembarking from her bus. She avoided falling by catching
herself on a handrail, but, in doing so, injured her shoulder,
neck, hand, and thumb. (Tr. 62.) Following the accident,
plaintiff continued in her job as a bus driver until May 5,
2010, the disability onset date. (Tr. 69-70.) She testified that
she quit her job because her restricted neck motion and numbness
in her fingers made it difficult for her to drive. (Id.)  

1

The record indicates both 1984 and 1989 as start dates for plaintiff’s
employment as a bus driver.  

2 

II.
1.

Medical Facts in the Administrative Record
Plaintiff’s Testimony Regarding Her Symptoms
Plaintiff testified that after her accident she developed

shooting pain (Tr. 65), stiffness (Tr. 61), and reduced range of
motion in her neck (Tr. 61, 65, 67), which she complained
“cracks and snaps” with movement. (Tr. 65, 67). She also
experienced numbness in the small and ring finger of her left
hand and in four fingers of the right hand. (Tr. 61, 65, 69.)
She attributed the numbness to carpal tunnel syndrome. (Tr. 61,
65.) Plaintiff also reported shoulder pain “when I use my arm a
lot.” (Tr. 67.) She believed the shoulder pain was radiating
from her neck. (Tr. 67.)  
At the time of her administrative hearing, plaintiff did
her own shopping, light cleaning, laundry, and some cooking,
although she could not lift heavy objects or manage more
physically demanding housework like vacuuming. (Tr. 69.) She
reported difficulty sleeping as a result of the symptoms in her
neck. (Tr. 66.) Plaintiff had undergone physical therapy for her
neck, and reported taking Flexeril and ibuprofen, together with
Nexium for stomach side-effects from the ibuprofen. (Tr. 62-63.)
Plaintiff also reported using braces when sleeping and a neck
traction device when awake. (Tr. 182.)  
Plaintiff’s hobbies included crocheting, knitting, and
baking, but she said that she was unable to do these because of
3 

her disability. (Tr. 69.) 
2.

Medical Records Submitted to the ALJ Relating to Period
Prior to Disability Onset Date (May 5, 2010)
Treatment Record with Dr. Lippe, Treating Orthopedic
Surgeon

On November 17, 2009, plaintiff presented for a
consultation with Dr. Robert J. Lippe of Island Orthopaedics and
Sports Medicine (Tr. 217-19, 224-26, 392-94, 420-21.) Plaintiff
complained of pain in her right hand, right shoulder, and the
right side of her neck following an accident on October 28,
2009. (Id.) Although she had experienced neck symptoms for about
a week or two prior to the accident, plaintiff explained that
after the accident the neck symptoms had changed. (Id.)
Plaintiff reported no symptoms on her left side. (Id.) On
examination, Dr. Lippe found that plaintiff’s range of neck
motion was at 80%, and that the neck was tender on the right
side and exhibited slight spasm. The right shoulder had a “good”
range of motion, though there was some trapezial2 pain with
movement. (Tr. 218) Impingement sign3 was negative, and rotator
cuff strength was “good” against resistance. (Tr. 217.) The
right hand had “some sensitivity” at the base of the thumb, more

2

Relating to the trapezius, a muscle extending longitudinally along the
spine from the occipital lobe at the back of the head to the upper thoracic
vertebrae and used in rotating the head and neck. Stedman’s Medical
Dictionary, 1256 (28th Ed. 2006) (“Stedman’s”).  
3
“Pain in patients with rotator cuff tendinitis or tears within the
subacromial space elicited by provocative physical examination maneuvers.”
Id. at 1769.  

4 

so than the thenar side4, with good range of motion. Tinel’s
sign5 was negative over the median nerve. (Tr. 218.)

X-rays of

the cervical spine confirmed degenerative disc changes at C5-6.
X-rays of the right shoulder and acromioclavicular (AC) joint6
were negative. X-rays of the right hand were negative. (Id.) Dr.
Lippe diagnosed a cervical sprain; right cervical radiculitis7;
shoulder pain, which was radicular in nature; and right hand
sprain. (Id.) Dr. Lippe noted that plaintiff was working at the
time, and recommended that she seek physical therapy. (Id.) 
Dr. Lippe saw plaintiff for a follow-up visit on December
28, 2009. (Tr. 216, 227, 388, 423.) Plaintiff reported some
relief from physical therapy, and indicated that she was still
working, but complained of ongoing pain in the back of her head
and in the right shoulder. (Id.) Dr. Lippe found that
plaintiff’s neck motion was at 75%, with residual tenderness and
some spasm. Neurologic exam of the upper extremities remained
negative, right shoulder motion was “good,” and impingement sign
was negative. (Id.) Dr. Lippe prescribed Motrin and recommended
plaintiff continue physical therapy. (Id.)  
On January 25, 2010, plaintiff complained to Dr. Lippe of

4

Nearer the base of the thumb. See Stedman’s at 1970.  
“A sensation of tingling, or of ‘pins and needles,’ felt at the lesion
site or more distally along the course of a nerve” when the nerve is gently
tapped with a finger during examination. Indicates partial damage to a nerve
or regeneration in a damaged nerve. Stedman’s at 1772.  
6
The point where the clavicle and the lateral part of the scapula meet.
Stedman’s at 19. 
7
Disorder of the spinal nerve roots. Id. at 1622.  
5

5 

ongoing discomfort on the right side, noting that physical
therapy had been of little benefit. (Tr. 215, 228, 385, 424.)
Dr. Lippe recorded plaintiff’s neck motion at 70%, with
paracervical and trapezial tenderness. Neurologic exam of the
upper extremities remained negative. (Id.) Dr. Lippe ordered a
magnetic resonance imaging scan (“MRI”) of the cervical spine,
prescribed a Medrol Dosepak for inflammation, and told plaintiff
to continue physical therapy. (Id.) 
A subsequent MRI of the cervical spine, performed on
February 25, 2010, showed: 
● Small disc herniation at the C3-C4 level, with mild
narrowing of the neural foramen. (Tr. 241-2, 402-03, 450451.)  
● Mild disc bulging and posterior vertebral osteophyte
formation at the C4-C5 level, with mild mass effect upon
the anterior aspect of the dural sac and moderate narrowing
of the neural foramina. (Id.)  
● Mild central stenosis at the C5-C6 level due to posterior
vertebral osteophyte formation, with prominent narrowing of
the neural foramina due to degenerative changes within the
uncovertebral joints. (Id.)  
● Mild mass effect upon the anterior aspect of the dural sac
at the C6-C7 level secondary to mild disc bulging and
posterior vertebral osteophyte formation. (Id.) There was a
6 

prominent narrowing of the right neural foramen and
moderate narrowing of the left neural foramen due to
degenerative changes within the uncovertebral joints. (Id.)  
● Moderate narrowing of the left neural foramen at the C7-T1
level. (Id.) 
Plaintiff followed up with Dr. Lippe again on March 8, 2010
(Tr. 230, 376, 425.) Dr. Lippe noted the results of the MRI and
conducted an exam, finding neck motion at 75% with slight rightsided tenderness. Dr. Lippe diagnosed cervical sprain and right
radiculitis with multilevel degenerative disc disease (Id.)
Noting that plaintiff was still working, he referred her to
physical therapy and renewed a prescription for ibuprofen. (Id.)  
On April 6, 2010, plaintiff complained to Dr. Lippe of
“clicking and snapping in her neck with movement,” and reported
that she had not experienced significant relief from therapy.
(Tr. 213, 231, 372, 426.) Dr. Lippe found plaintiff’s neck
motion restricted to 50%, with right-sided tenderness and
paravertebral spasm. Neurologic exam of the upper extremities
remained negative. (Id.) Dr. Lippe recommended plaintiff stop
physical therapy and seek chiropractic treatment. (Id.) 
2.

Medical Records Submitted to the ALJ Relating to Period
from Plaintiff’s Claimed Disability Onset Date (May 5,
2010)
Treatment Record with Dr. Lippe, Treating Orthopedic
Surgeon

7 

On May 5, 2010, plaintiff saw Dr. Lippe again, reporting
continuing neck pain, crepitation with neck movements, and some
numbness in her little and ring fingers. (Tr. 212, 232, 369,
427.) She reported that she had started chiropractic treatment,
but had not yet had any significant relief and was “having a
hard time driving the bus.” (Id.) Dr. Lippe found neck motion
restricted to 50-60%, with paracervical and trapezial tenderness
and spasm. (Id.) Neurologic exam of the upper extremities was
negative, except for “some numbness” in the little and ring
fingers. (Id.) Dr. Lippe prescribed Arthrotec for inflammation
and recommended that plaintiff stop working and rest while
continuing with chiropractic treatment. (Id.)  
On May 27, 2010, Dr. Lippe reported that plaintiff had had
an electromyography test (“EMG”), which showed moderate carpal
tunnel syndrome bilaterally, moderate cubital tunnel syndrome of
the left arm, and mild C6-C7 cervical radiculopathies
bilaterally.

(Tr. 211, 233, 365, 428.)

Examination showed neck

range of motion at 60%. Plaintiff showed a slight positive Tinel
sign over the ulnar nerve in the cubital tunnel. (Id.) Strength
of the first dorsal interosseous was intact against resistance.
(Id.) Dr. Lippe diagnosed left arm cubital tunnel syndrome and
bilateral carpal tunnel syndrome, in addition to his existing
diagnosis of cervical sprain with radiculopathy and multilevel
degenerative disc disease. (Id.) Dr. Lippe recommended future
8 

cubital and carpal tunnel release surgery and continued
treatment with a chiropractor. (Id.)  
On June 29, 2010, plaintiff complained to Dr. Lippe of
sharp pain in the right side of her neck and of numbness in the
left little and ring fingers. (Tr. 210, 234, 361, 429.)

Dr.

Lippe found neck range of motion at 60%, and slight paracervical
and trapezial tenderness. Plaintiff showed a minimal Tinel sign
over the ulnar nerve of the cubital tunnel. Strength of the
first dorsal interosseous was intact against resistance.
Phalen’s sign was negative at the wrist and pinch strength was
intact. (Id.) Dr. Lippe noted that plaintiff was still “unable
to work of yet, disabled from her job,” and recommended
continued treatment with chiropractics and Motrin. (Id.)

A follow-up examination on July 27, 2010 found neck range
of motion at 70%, with slight tenderness and spasm. (Tr. 209,
235, 356, 430.) There was a mildly positive Tinel sign over the
ulnar nerve of the cubital tunnel. Strength of first dorsal
interosseous was intact against resistance. (Id.)

Examination on August 30, 2010 showed neck range of motion
at 70%. (Tr. 208, 236, 353, 431.) Plaintiff showed a positive
Tinel sign over the ulnar nerve of the cubital tunnel, but
negative Tinel over the median nerves of the wrist. (Id.)

There

was “very slight atrophy” of the first dorsal interosseous, but
strength was intact. Dr. Lippe noted that plaintiff remained
9 

“unable to work her job.” (Id.) Dr. Lippe discussed possible
left ulnar nerve decompression and anterior transposition. (Id.)  
Examination on September 28, 2010 showed neck range of
motion of 75%, positive Tinel over the ulnar nerve of the
cubital tunnel, and “slight atrophy” of the first dorsal
interosseous, with a negative Phalen’s sign. (Tr. 207, 237, 350,
432.) Dr. Lippe noted that plaintiff was still “unable to work
her job” and recommended continued therapy. (Tr. 207.)
Examinations on October 26, 2010 (Tr. 206), November 23, 2010
(Tr. 239), and December 23, 2010 (Tr. 240) found substantially
similar results.  
Examination on May 13, 2011 showed neck motion at 50%,
with restricted rotation and lateral bend. There was
paracervical and trapezial spasm. (Tr. 269, 325, 440.)
Neurologic exam showed a positive Tinel sign over the ulnar
nerve in the cubital tunnel with “subjective numbness to the
little and ring fingers.” (Id.) There was “slight atrophy” to
the first dorsal interosseous, but plaintiff was able to abduct
against resistance. (Id.) Dr. Lippe renewed a prescription for
Motrin and prescribed Flexeril. He noted that plaintiff remained
unable to work. (Id.)  
On June 10, 2011, Dr. Lippe noted that patient was still
having a lot of neck pain, but that numbness in the ring and
little finger “seemed to have a gotten a little less acute.”
10 

(Tr. 270, 296.) Dr. Lippe recorded neck range of motion at 60%,
noting paracervical and trapezial tenderness and spasm. (Id.)
There was “slightly positive” Tinel sign over the ulnar nerve in
the cubital tunnel. First dorsal interosseous strength was good
against resistance. (Id.) Dr. Lippe renewed prescriptions for
Motrin and Flexeril. (Id.) Results of an examination on July 15,
2011 were substantially similar. (Tr. 271, 295, 322, 441.) 
On August 16, 2011, plaintiff complained of stiffness and
cracking in the neck, numbness in fingers, and “shooting” neck
and shoulder pain rating the pain’s severity at nine out of ten
when active and five out of ten at rest. (Tr. 274-75, 282-83,
318-19 399-400.) Dr. Lippe recorded forward neck flexion at 30,
extension at 10. Left and right lateral flexion was 20. Left and
right lateral rotation was 60. Hoffman exam was negative. Motor
strength of the upper extremities was 5/5 in all distributions.
Sensation of the left upper extremity was “altered.” (Tr. 275.)
There was a positive Tinel over the ulnar nerve in the cubital
tunnel and atrophy in the first dorsal interosseous. (Id.) Dr.
Lippe noted that plaintiff’s “percentage of temporary impairment
is total” and that her prognosis for recovery was poor. (Id.)
Dr. Lippe noted that plaintiff’s limitations included
environmental conditions, lifting, operating motor vehicles,
sitting, and use of upper extremities. (Id.) Dr. Lippe
prescribed Flexeril, requested authorization for chiropractic
11 

care, elbow surgery, and left ulnar nerve decompression. (Id.)
Results of an examination on September 19, 2011 were
substantially similar. (Tr. 273.)  
On October 24, 2011 (Tr. 276-77, 278-79, 314-15, 442-43),
plaintiff complained of anxiety, depression, and sleep disorder
in addition to past symptoms. (Tr. 277.) Dr. Lippe recorded
plaintiff’s forward flexion at 30, extension at 10. Left and
right lateral flexion was 20. Left and right lateral rotation
was 60. (Id.) Hoffman exam was negative, and motor strength in
the upper extremities was 5/5 in all distributions. There was
positive Tinel sign over the ulnar nerve in the cubital tunnel,
and some atrophy of the first dorsal interosseous. (Id.) Dr.
Lippe prescribed Flexeril and Motrin. (Id.)  
Results of examination on November 28, 2011 were
substantially similar. (Tr. 284-85, 397-98.)  
Treatment Record with Dr. Yadegar, Physiatrist 
On August 25, 2010, plaintiff saw Arash Yadegar, M.D., a
physiatrist with Orlin & Cohen Orthopedic Associates, LLP,
complaining of “cracking” in her neck, and pain and numbness
radiating into the left hand. (Tr. 263-265.) Dr. Yadegar noted
that plaintiff’s pain was exacerbated by stretching, sitting,
walking, cold, lifting, lying in bed, and physical therapy, and
that plaintiff was unable to continue in her job as a bus driver
because this required her to move her neck frequently over the
12 

course of the day. (Tr. 263.) On examination, Dr. Yadegar found
tenderness of the midline cervical spine and bilateral
tenderness of the paraspinal musculature of the cervical spine
and trapezius. (Tr. 264.) Dr. Yadegar found diminished flexion,
extension, and lateral bending to the left and right in
plaintiff’s neck. (Id.) Dr. Yadegar diagnosed cervicalgia,
herniated cervical nucleus pulposus, cervical radiculopathy, and
facet syndrome. (Tr. 264.) Dr. Yadegar noted that plaintiff’s
limitations included operation of motor vehicles and use of the
upper extremities (Tr. 264), and prescribed Ultracet and
recommended epidural steroid injections. (Tr. 264.) Dr. Yadegar
saw plaintiff again on September 22, 2010, finding no
significant changes in her condition. (Tr. 260-262.)  
Treatment Record with Dr. Schur, Chiropractor 
The Administrative Record indicates that plaintiff also
received chiropractic therapy from Mark Schur, D.C. from
September 2010 to March 2011. (Tr. 287-88, 290.) 
Examination by Dr. Ritholtz, Consultative Examiner  
The Administrative Record includes an assessment of
plaintiff’s condition, dated February 4, 2011, by Jeffrey C.
Ritholtz, D.C., a chiropractic consulting examiner for the New
York State Workers’ Compensation Board.(Tr. 289-293.) Dr.
Ritholtz indicated that he had reviewed plaintiff’s medical
records, including MRI and EMG results and treatment notes from
13 

Drs. Lippe, Yadegar, Finkelstein, and Schur. (Tr. 290.) Dr.
Ritholtz had previously examined plaintiff on November 3, 2010
and concluded that claimant had a “temporary partial mild
disability at this time” and that she may return to work as a
school bus driver “with restrictions of no lifting, pushing,
pulling, or carrying over 30 pounds.” (Id.) He believed that
plaintiff’s complaints of neck pain and restricted range of
motion were not supported by objective medical findings, and
that her condition was a chronic, not an acute one. (Tr. 289.)  
Examination by Dr. Skeene, Consultative Examiner 
Dr. Linell Skeene saw plaintiff on February 16, 2011. (Tr.
243-46.) Dr. Skeene noted plaintiff’s complaints, reviewed her
medical history, and conducted an examination. (Id.) Dr. Skeene
recorded that plaintiff appeared to be in no acute distress, had
a normal gait, and could walk on heels and toes without
difficulty. (Tr. 244.) She was capable of a full squat, and had
no trouble getting on or off the examination table or rising
from a chair. (Id.) Hand and finger dexterity were intact, with
grip strength 5/5 bilaterally. (Id.) Range of motion of the
cervical spine was limited to 30 degrees, with lateral flexion
at 30 degrees and lateral rotation at 50 degrees. (Id.)
Plaintiff had full range of motion in shoulders, elbows,
forearms, wrists, and fingers bilaterally, with no muscle
atrophy and no sensory abnormality. (Id.) Dr. Skeene diagnosed
14 

disc disease of the cervical spine, bilateral carpal tunnel
syndrome, and left cubital tunnel syndrome. (Tr. 245.) He
concluded that plaintiff had a “moderate limitation for reaching
and heavy lifting.” (Id.)  
3.

Medical Records Submitted to the Appeals Council8

Treatment Record with Dr. Finkelstein, Chiropractor9 
Dianne Finkelstein, D.C. provided plaintiff with
chiropractic treatment from April 14, 2010 to September 13,
2010, and submitted to the Appeals Council a narrative of
plaintiff’s treatment dated March 11, 2012. (Tr. 444-446.) Dr.
Finkelstein diagnosed displacement of cervical intervertebral
disc, without myelopathy, thoracic sprain/strain, and
myalgia/myositis. (Tr. 446.) Dr. Finkelstein noted that
plaintiff’s injuries and the associated inflammation would
result in scar tissue formation and cause permanent
“restriction, immobility, pain, and future degenerative and
arthritic changes in the spinal discs and joints” and that
patient “will be predisposed to future exacerbations of cervical

8

 Many of the documents that plaintiff submitted to the Appeals Council,
and which were added to the Administrative Record, were duplicates of
documents already in the record at the time of the ALJ’s decision. The court
discusses in this section only those documents which were not duplicates.
Page numbers of duplicate documents are indicated in citations in Section II,
above.  
9
 Plaintiff submitted Dr. Finkelstein’s report, dated March 11, 2012, to
the Appeals Council, but the Council declined to consider the report because
the Council found the report did not relate to a period prior to the ALJ’s
decision of December 13, 2010. (Tr. at 2.) The document does, however, relate
to a period prior to the ALJ’s decision, specifically, April to September
2010.  

15 

spine discomfort.” (Tr. 446.)  
Nerve Conduction Study by Dr. Singh, Neurologist  
A nerve conduction study by Tej-Preet Singh, M.D., of
Massapequa Neurologic , P.C., dated May 17, 2010 (Tr. 308-13,
455-60) found left sensorimotor ulnar nerve neuropathy at the
elbow, with no axonal loss. (Tr. 309.) This finding was
consistent with a diagnosis of moderate cubital tunnel syndrome.
(Id.) The study also found moderate bilateral sensory median
nerve neuropathy at the wrist, with no axonal loss, consistent
with a diagnosis of carpal tunnel syndrome. (Id.) The report
noted “mild E.M.G. evidence for bilateral C6 C7
radiculopathies.” (Id.) 
Additional Records from Dr. Lippe, Treating Orthopedic Surgeon,
dated up to December 13, 2011  
Examination on January 20, 2011 showed range of neck motion
at 70%, with tenderness and slight spasm. (Tr. 338, 436.) There
was a Tinel sign over the ulnar nerve in the cubital tunnel and
slight atrophy of the first dorsal interosseous distally. (Id.)
There was negative Tinel over the median nerve at the wrist.
(Id.) Dr. Lippe noted that plaintiff “remains unable to work.
She is disabled.” (Id.) He renewed prescriptions for Motrin and
Soma. (Id.)  
Examination on February 18, 2011 showed little change. (Tr.
335, 437.) Dr. Lippe noted that plaintiff “remains unable to
16 

work and is disabled from her job.” (Id.) He renewed
prescriptions for Motrin and Soma. (Id.) 
Examination on April 15, 2011 showed neck range of motion
at 60-70%, with paracervical and trapezial tenderness and spasm.
(Tr. 328, 439.) Neurologic exam showed subjective numbness in
little and rings fingers with very slight atrophy in the first
web, but good abduction strength against resistance on the index
finger. (Id.) Dr. Lippe noted that patient remained “unable to
work her job,” renewed prescriptions for Motrin and Soma. (Id.) 
In letters dated February 18, 2011 (Tr.300), March 18, 2011
(Tr. 299), April 15, 2011 (Tr. 298), May 13, 2011 (Tr. 297),
June 10, 2011 (Tr. 296), and July 15, 2011 (Tr. 295), Dr. Lippe
opined that plaintiff was “totally disabled” and could not
return to work until after further evaluation. Plaintiff also
submitted to the Appeals Council forms that Dr. Lippe had
submitted to the New York Workers’ Compensation Board (Tr. 32091). In the forms dated December 17, 2009 (Tr. 390-91), January
15, 2010 (Tr. 386-87), February 12, 2010 (Tr. 382-83), February
22, 2010 (Tr. 378-79), March 26, 2010 (Tr. 374-75), April 21,
2010 (Tr. 370-71), and May 25, 2010 (Tr. 366-67), Dr. Lippe
opined that the extent of plaintiff’s temporary impairment was
75%. In the forms dated June 15, 2010 (Tr. 362-63), July 20,
2010 (Tr. 358-59), August 6, 2010 (Tr. 354-55), September 15,
2010 (Tr. 351-52), October 12, 2010 (Tr. 348-49), November 2,
17 

2010 (Tr. 345-46), December 16, 2010 (Tr. 342-43), January 17,
2011 (Tr. 339-40), February 9, 2011 (Tr. 336-37), March 14, 2011
(Tr. 332-33), April 11, 2011 (Tr. 329-30), May 6, 2011 (Tr. 32627), May 26, 2011 (Tr. 323-24), and August 4, 2011 (Tr. 320-21),
he opined that the extent of plaintiff’s temporary impairment
was 100%. 
Additional Records from Dr. Lippe, Treating Orthopedic Surgeon,
dated after December 13, 2011

The Administrative Record includes documents submitted to
the Appeals Council which relate to a period after December 13,
2011, the date of the ALJ’s decision. (See Tr. 2.) These include
records of examinations by Dr. Lippe on January 2, 2012 (Tr.
411-12) and February 7, 2012 (Tr. 404-05) and an initial
evaluation by a physical therapist at Orlin & Cohen Orthopedic
Associates, L.L.P. dated January, 9, 2012 (Tr. 414).  
III.

Medical Evidence Not Included in the Administrative Record
Plaintiff also submitted to the Appeals Council numerous

documents dated after December 13, 2011, which the Council both
declined to consider and did not include in the Administrative
Record. (See Tr. 2.)

Among these documents are clinical notes

from an assessment by David Benatar, M.D. conducted on March 2,
2012 (Pl.’s Mem. of Law in Support of Pl.’s Mot. for J. on the
Pleadings (“Pl. Mem.”) Exh. A; see also Tr. 2); a Cervical Spine
Impairment Questionnaire, completed by Dr. Lippe on January 12,

18 

2012 (Pl. Mem., Exh. B; see also Tr. 2); and a Cervical Spine
Impairment Questionnaire completed by Dr. Benatar on March 2,
2012 (Pl. Mem., Exh. A; see also Tr. 2).  
I.

Procedural History
Plaintiff filed an application for SSD benefits on

November 18, 2010.

(Tr. 141-42, 145-48.)

inability to work as of May 5, 2009.

She alleged an

(Tr. 141.) The disability

onset date was subsequently amended to May 5, 2010.10
February 28, 2011 plaintiff’s application was denied.
77-84.)

On
(Tr. 74,

On April 2, 2011, plaintiff requested a hearing before

an administrative law judge (“ALJ”).

(Tr. 54-55.)

On December 5, 2011, plaintiff appeared with her attorney,
Sharmine Persaud, Esq., before ALJ Bruce MacDougall.
72.)

(Tr 56-

Plaintiff testified at the hearing about her employment

history, her accident, the type and severity of her symptoms,
and the extent of her alleged disability. (Tr. 58-72.)  
On December 13, 2011, ALJ MacDougall found that plaintiff
was not disabled pursuant to the five-step sequential evaluation
process for determining whether an individual is disabled.
34-42; see 20 C.F.R. 404.1520(a).)

(Tr.

Specifically, the ALJ found

on step one that plaintiff had “not engaged in substantial

10

Though plaintiff indicated on her initial application a disability
onset date of May 5, 2009 (Tr. at 141), she indicated an onset date of May 5,
2010 in the disability reports related to her application. (Tr. at 168, 192,
201.) Plaintiff explained in a letter from her attorney to ALJ MacDougall,
dated October 31, 2011 (Tr. at 196-97), and in testimony at her oral hearing
(Tr. at 59-60) that the May 5, 2009 date was a typographical error.  

19 

gainful activity since May 5, 2010, the alleged onset date.”
(Tr. 39.)

Regarding step two, the ALJ found that plaintiff had

the severe impairment of cervical degenerative disc disease.

(Id.)

With respect to step three, however, the ALJ concluded that
plaintiff did not have an impairment or combination of
impairments that met or were medically equivalent to the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (“Medical Listings”). (Id.)

The ALJ found

in particular that the plaintiff did not meet the criteria set
forth under Medical Listing 1.00, relating to musculoskeletal
impairments, though the ALJ did not specify which criteria were
unmet. (Id.)

The ALJ also found at step three that plaintiff had the
residual functional capacity (“RFC”) to perform “the full range
of simple, unskilled light work” as defined in 20 C.F.R.
404.1567(b). (Id.) The ALJ explained that he arrived at this
finding by a two-step process. (Tr. 40.) First, he determined
that plaintiff had a medically determinable impairment that
could reasonably be expected to cause the symptoms alleged. (Tr.
40-41.) But, second, he determined that plaintiff’s statements
concerning the intensity, persistence, and limiting effects of
her impairment were inconsistent with the RFC, diagnostic test
results, documented clinical signs, treatment history, work
20 

history, and range of daily activities. (Id.) The ALJ noted that
he accorded more weight to Dr. Skeene’s opinion regarding the
extent of plaintiff’s disability than to Dr. Lippe’s opinion on
the matter. The ALJ also observed that none of plaintiff’s
treating or examining physicians had expressly opined that the
plaintiff was incapable of performing any vocational activity.
(Id.)  
At step four of the analysis, the ALJ found that plaintiff
was unable to perform past relevant work because her most recent
former employment required greater exertional capacity than
plaintiff possessed. (Tr. 41.) Finally, at step five, after
considering plaintiff’s age, education, work experience, and
residual functional capacity, the ALJ found that there were jobs
that existed in significant numbers in the national economy that
plaintiff could perform.

(Tr. 41-42.)  

On March 8, 2013, the ALJ’s decision became the final
decision of the Commissioner when the Appeals Council denied
plaintiff’s request for review.

(Tr. 1-8.)

Plaintiff filed the

instant complaint on April 29, 2013. The parties’ cross-motions
for judgment on the pleadings were fully briefed on January 31,
2014.  
DISCUSSION
I.

Applicable Legal Standards

21 

A.

Standard of Review

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

Burgess v. Astrue, 537 F.3d 117, 127 (2d

Cir. 2008)(internal quotation marks omitted).
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.’”

Halloran v. Barnhart, 362 F.3d 28, 31

(2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).

An evaluation of the “substantiality of evidence must

also include that which detracts from its weight.”

Williams ex

rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

If there is substantial evidence in the record to support
the Commissioner’s factual findings, those findings are
conclusive and must be upheld. See 42 U.S.C. § 405(g).
Moreover, the reviewing court “may not substitute [its] own
judgment for that of the [Commissioner], even if [the court]
might justifiably have reached a different result upon a de novo
review.”

Priel v. Astrue, 453 F. App’x 84, 86 (2d Cir. 2011)

(summary order) (quoting Valente v. Sec’y of Health and Human
Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)) (internal quotation
marks omitted). 

22 

B.

Determining Whether a Claimant is Disabled

A claimant is disabled under the Act when he is unable “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).

The impairment must be of

“such severity” that the claimant 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 [that] exists in the national economy . . . .”

42 U.S.C.

§ 423(d)(2)(A). 
The SSA has promulgated a five-step sequential
analysis to determine whether the claimant’s condition meets the
Act’s definition of disability: 
[I]f the Commissioner determines (1) that the
claimant is not working,11 (2) that he has a ‘severe
impairment,’12 (3) that the impairment is not one
[listed in Appendix 1 of the regulations] that
conclusively requires a determination of disability,13

11

Under the first step, if the claimant is currently engaged in
“substantial gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), the claimant
is not disabled, regardless of the claimant’s medical condition, id.
§ 404.1520(b).  
12
Under the second step, the claimant must have “any impairment
or combination of impairments which significantly limits [his or her]
physical or mental ability to do basic work activities” in order to have a
“severe impairment.” 20 C.F.R. § 404.1520(c); see also 20 C.F.R.
§ 404.1520(a)(4)(ii). 
13
Under the third step, if the claimant has an impairment that
meets the duration requirement and is listed in Appendix 1 or is equal to a
listed impairment, the claimant is per se disabled. 20 C.F.R. § 404.1520(d);
see also 20 C.F.R. § 404.1520(a)(4)(iii). 

23 

and (4) that the claimant is not capable of continuing
in his prior type of work,14 the Commissioner must find
him disabled if (5) there is not another type of work
that claimant can do.15  

Burgess, 537 F.3d at 120 (alteration in original) (internal
quotation marks omitted); see also 20 C.F.R. § 404.1520(a)(4). 
In steps one through four of the sequential five-step
framework, the claimant bears the “general burden of proving
that he or she has a disability within the meaning of the Act.”
Burgess, 537 F.3d at 128.

In step five, if the claimaint is

unable to perform her past work, the burden shifts to the
Commissioner to show that in light of the claimant’s RFC, age,
education, and work experience, the claimant is “able to engage
in gainful employment within the national economy.”

Sobolewski

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

Analysis
A. THE ALJ DID NOT ERR IN FINDING THAT PLAINTIFF WAS NOT PER
SE DISABLED UNDER MEDICAL LISTING 1.04(A).

Plaintiff argues that the ALJ erred in finding at step
three of the five-step sequential analysis that plaintiff was
not per se disabled by her spinal injury under Medical Listing
1.04. (Pl. Mem. at 9-11; Pl. Reply at 1-2.) Moreover, plaintiff

14

Under the fourth step, the claimant is not disabled if he or
she can still do his or her “past relevant work.” 20 C.F.R. § 404.1520(f);
see also 20 C.F.R. § 404.1520(a)(4)(iv). 
15
Under the fifth step, the claimant may still be considered not
disabled if he or she “can make an adjustment to other work” available in the
national economy. 20 C.F.R. § 404.1520(g); see also 20 C.F.R.
§ 404.1520(a)(4)(v) 

24 

argues that the ALJ did not provide sufficient rationale for
this determination. (Id.) The court finds that the ALJ’s
decision that plaintiff was not disabled by her spinal
conditions under Medical Listing 1.04 was supported by
substantial evidence in the record and was adequately explained
by the ALJ’s decision.  
The contested paragraph in Medical Listing 1.04 provides
that degenerative disc disease, resulting in compromise of a
nerve root or the spinal cord, is a disability when accompanied
by: 
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive straightleg raising test (sitting and supine). 

20 C.F.R. Part 404, Subpart P, Appendix 1, 1.04.  
This definition is comprehensive and exclusive. “For a
claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that
manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1991)
(emphasis in original); see also Gonzalez ex rel. Guzman v.
Secretary of U.S. Dep’t of Health & Human Services, 360 Fed.
Appx. 240, 243 (2d Cir. 2010)(upholding an ALJ determination
that SSD applicant was not per se disabled because applicant
25 

failed to show he met “all of the required criteria” for
asthma); Austin v. Colvin, No. 12–CV–1470 (NGG), 2013 WL
4077884, at *6 (E.D.N.Y. Aug. 12, 2013)(upholding an ALJ
determination that plaintiff was not per se disabled because
plaintiff had not “demonstrate[d] that his disability met all of
the specified medical criteria of a spinal disorder.”) (internal
quotation marks omitted).

Here, parties agree that plaintiff has degenerative disc
disease and suffers most of the pertinent symptoms listed above.
But defendant correctly asserts that the Administrative Record
contains no evidence that plaintiff has ever suffered “atrophy
with associated muscle weakness or muscle weakness” related to
her spinal injury. (Def.’s Mem. of Law in Support of CrossMotion for J. on the Pleadings and in Opp. to Pl.’s Mot. for J.
on the Pleadings (“Def. Mem.”) at 20-21; Defendant’s Reply
Memorandum of Law (“Def. Reply”) at 1-2.) Plaintiff does not
refute this assertion. (See Pl. Mem. at 10; Pl. Reply at 1-2.)
Indeed, though plaintiff’s treatment records indicate some
muscle atrophy in the first dorsal interosseous, there is no
mention of accompanying muscle weakness. (See Tr. 206, 208-11,
239, 240, 269-71, 273, 277, 285).

Rather, Dr. Lippe

consistently noted that the strength in plaintiff’s first dorsal
interosseous, the only muscle subject to atrophy, was intact.
(Id.) 
26 

Plaintiff’s argument (Pl. Mem. at 10) that her documented
atrophy alone should satisfy the motor loss criterion fails
based on the language of Medical Listing 1.04, which requires
“atrophy with associated muscle weakness or muscle weakness.” 20
C.F.R. Part 404, Subpart P, Appendix 1, 1.04 (emphases added).
The argument also fails because it is well-established that an
SSD applicant must meet all criteria of a Medical Listing to
qualify as per se disabled. See Sullivan, 493 U.S. at 530;
Gonzalez ex rel. Guzman, 360 Fed. App’x. at 243; Austin, No. 12–
CV–1470 (NGG), 2013 WL 4077884, at *6. Because plaintiff fails
to meet the motor loss criterion of Medical Listing 1.04, the
ALJ correctly found that plaintiff was not per se disabled under
this listing.  
In making an adverse determination at step three, the ALJ
should “set forth a sufficient rationale in support of his
decision to find or not to find a listed impairment.” Salmini v.
Commissioner of Social Sec., 371 Fed. Appx. 109, 112 (2d Cir.
2010) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.
1982)). Nevertheless, “the absence of an express rationale for
an ALJ's conclusions does not prevent [the court] from upholding
them so long as we are ‘able to look to other portions of the
ALJ's decision and to clearly credible evidence in finding that
his determination was supported by substantial evidence.’” Id. 
Here, the ALJ provided scant rationale for his
27 

determination that plaintiff did not satisfy the criteria set
forth under Medical Listing 1.04. (Tr. 39.) Indeed, the ALJ
indicated only that “the requisite criteria for the relevant
listings are absent,” with specific reference to “[l]isted
impairments under section 1.00 (musculoskeletal).” (Id.) Yet, as
explained above, the treatment records in the Administrative
Record contain ample substantial evidence to support this
determination. (See Tr. 206, 208-11, 239, 240, 269-71, 273, 277,
285.) Moreover, the ALJ indicated elsewhere in his decision that
he had examined plaintiff’s treatment records, and noted
specifically that “hand and finger dexterity were intact and
grip strength was full bilaterally.” (Tr. 41.) Because the ALJ’s
determination that plaintiff was not per se disabled under the
listings is both supported by substantial evidence in the record
and by other portions of the ALJ’s decision, this part of the
ALJ’s determination is affirmed.  
B. THE ALJ ERRED IN FAILING TO PROVIDE ‘GOOD REASONS’ FOR
REJECTING DR. LIPPE’S OPINION RELATING TO PLAINTIFF’S
DISABILITY.

Social Security regulations require that the ALJ consider
“every medical opinion” in the Administrative Record in
determining whether a plaintiff is disabled. 20 C.F.R.
§§404.1527(c), 416.927(c). A treating physician’s medical
opinion “on the issue(s) of the nature and severity of [the]
impairment” will be given controlling weight if the opinion “is
28 

well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.” 20 C.F.R.
§§404.1527(c)(2), 416.927(c)(2); see also Burgess, 537 F.3d at
128.  
Yet, to the extent a treating physician’s opinion is
inconsistent with the medical record, it may be given less
weight. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)(citing
20 C.F.R. §404.1527(c)(4)). In these cases, the ALJ may opt to
defer to the opinions of non-treating physicians if such
opinions are supported by evidence in the record. Schisler v.
Sullivan, 3 F.3d 563, 568 (2d Cir. 1993) (citing 20 C.F.R.
§§404.1527(e), 416.927(e)).  
Final responsibility for deciding the extent of an
applicant’s disability is reserved to the Commissioner. 20
C.F.R. §404.1527(d)(2); see Snell, 177 F.3d at 133; Martin v.
Astrue, 337 F. App’x 87, 89 (2d Cir. 2009)(summary order). A
treating physician’s opinion of a claimant’s RFC and disability
does not have controlling weight. 20 C.F.R. §§404.1527(d)(1),
416.927(d)(1) (“A statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will
determine that you are disabled.”); Snell, 177 F.3d at 133 (“A
treating physician’s statement that a claimant is disabled
cannot itself be determinative.”).  
29 

Nonetheless, the treating physician’s opinion is entitled
to substantial deference. 20 C.F.R. §§404.1527(c)(2),
416.927(c)(2); see also Burgess, 537 F.3d at 128. Under the
“treating physician rule,” should the ALJ decline to give
controlling weight to the treating physician’s opinion, the ALJ
must “comprehensively set forth reasons for the [actual] weight
assigned.” Burgess, 537 F.3d at 129 (quoting Halloran, 362 F.3d
at 33). In such explanation, the ALJ should consider (1) the
length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treating
relationship; (3) the support for the treating source opinion;
(4) the consistency of the opinion with the rest of the record;
(5) the specialization of the treating physician; (6) any other
relevant factors. 20 C.F.R. §§404.1527(c)(2)-(6), 416.927(c)(2)(6); see Burgess, 537 F.3d at 129; Snell, 177 F.3d at 133.

An ALJ may not “arbitrarily substitute his own judgment for
competent medical opinion.” Balsamo v. Chater, 142 F.3d 75, 81
(2d Cir. 1998)(citation omitted). The ALJ must instead provide
“good reasons” for the weight given to the treating physician’s
opinion. 20 C.F.R. §§404.1527(c)(2), 416.927(c)(2); see Snell
177 F.3d at 134; Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998). “Failure to provide such ‘good reasons’ for not crediting
the opinion of a claimant’s treating physician is a ground for
remand.” Burgess, 537 F.3d at 129-30 (quoting Snell, 177 F.3d at
30 

133-34).

Here, the ALJ failed to provide adequately detailed “good
reasons” for according limited weight to Dr. Lippe’s opinion
regarding plaintiff’s disability. The ALJ notes Dr. Lippe’s long
and involved treatment relationship with plaintiff and that Dr.
Lippe is an orthopedic specialist. (Tr. 40.) He does not dispute
Dr. Lippe’s diagnoses. (Tr. 40.) Yet the ALJ discounts Dr.
Lippe’s opinion regarding plaintiff’s disability “to the extent
that Dr. Lippe opined that the claimant could not perform any
vocational activity.” (Id.) The ALJ explains only that “such an
opinion is not consistent with the mild diagnostic test, limited
clinical signs and treatment and the record as a whole.”

(Id.)

Yet the ALJ does not identify any particular tests, signs, or
other elements of the medical record that he finds to be
inconsistent with Dr. Lippe’s opinion.  
Under the treating physician rule, an ALJ may not reject a
treating physician’s opinion based solely on such conclusory
assertions of inconsistency with the medical record. See Cabassa
v. Astrue, No. 11–CV–1449, 2012 WL 2202951, at *8 (E.D.N.Y. June
13, 2012) (Matsumoto, J.) (remanding where ALJ failed to specify
what “treatment notes or any objective findings” were
inconsistent with treating physician’s opinion); Lopez-Tiru v.
Astrue, No. 09–CV1638, 2011 WL 1748515 at *11-12 (E.D.N.Y. May
5, 2011) (remanding where ALJ failed to give controlling weight
31 

to treating physician’s opinion “after making several conclusory
statements”). Rather, an ALJ must provide some reasoned account
as to why he finds the physician’s opinion is inconsistent. See
Burgess, 537 F.3d at 129-30. The ALJ provides no such reasons
here.

Instead, the ALJ’s references to the record are entirely

consistent with Dr. Lippe’s assessment. The ALJ’s decision notes
that plaintiff was “not hospitalized and had no operations,” had
been able to return to work for six months following her 2009
accident, and was able to perform “a wide range of activities of
daily living.” (Tr. 41). The fact that plaintiff was able to
work for six months following her accident is consistent with
her own testimony and Dr. Lippe’s assessment that plaintiff’s
condition had progressively deteriorated following the accident.
Additionally, the ALJ does not specify which of plaintiff’s
“wide range of activities” was inconsistent with Dr. Lippe’s
opinion.

Moreover, in explaining his preference for the consultant
Dr. Skeene’s opinion, the ALJ writes only that Dr. Skeene’s view
“is consistent with the examination and the clinical signs,
diagnostic test and treatment received by the claimant.” (Tr.
41.) The ALJ does not note any specific parts of the medical
record with which Dr. Skeene’s opinion is consistent. (Id.) The
Second Circuit has recently cautioned that “ALJs should not rely
32 

heavily on the findings of consultative physicians after a
single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d
Cir. 2013). And where only one consultant disagrees with the
treating physician, the latter’s opinion should ordinarily
remain controlling. See Rankov v. Astrue, No. 11–CV–02534 (CBA),
2013 WL 1334085 at *9 (E.D.N.Y. Mar. 30, 2013). In short, Dr.
Skeene’s opinion, absent more, is not a sufficient reason to
reject Dr. Lippe’s opinion.  
Where a plaintiff’s medical sources have differing RFC
opinions, “[a]n ALJ's failure to reconcile such materially
divergent RFC opinions of medical sources is [] a ground for
remand.” Cabassa, No. 11–CV–1449, 2012 WL 2202951, at *7. This
is especially true where the ALJ discounts the opinion of the
treating physician. See Kennedy v. Astrue, 343 F. App’x 719, 721
(2d Cir. 2009)(summary order)(“Where an ALJ fails properly to
acknowledge [the treating physician rule] or to provide ‘good
reasons’ for the weight given to the treating physician’s
opinion, we do not hesitate to remand.” (citation omitted)).  
Because the ALJ has not acknowledged the treating physician
rule or discussed with any specificity the factors he must
consider in evaluating the treating physician’s opinion, remand
is appropriate. While the medical record may provide good
reasons for favoring Dr. Skeene’s opinion, under the treating
physician rule the ALJ must explain these reasons. On remand,
33 

the ALJ must state his findings and provide good reasons for the
weight he accords to Dr. Lippe’s opinion with reference to
specific elements of the medical record. The ALJ shall consider
and discuss his application of the factors set out in 20 C.F.R.
§§404.1527(c)(2)-(6). Finally, the ALJ shall reconcile Dr.
Lippe’s opinion with that of Dr. Skeene and any other relevant
opinions in the record, explaining what evidence he relied on in
making his determination.  
C. THE APPEALS COUNCIL ERRED IN REFUSING TO CONSIDER
PLAINTIFF’S SUBMISSION OF THE QUESTIONNAIRE FROM DR. LIPPE,
BUT NOT IN REFUSING TO CONSIDER THE QUESTIONNAIRE AND
CLINICAL NOTES FROM DR. BENATAR.

The Appeals Council must consider new and material evidence
submitted to it by a claimant “only where [the new evidence]
relates to the period on or before the date of the
administrative law judge hearing decision.” 20 C.F.R.
§404.970(b). Evidence is “new” if it was not considered by the
ALJ and is “not merely cumulative of what is already in the
record.” Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991).
Evidence is “material” if it “is both relevant to the claimant's
condition during the time period for which benefits were denied
and probative.” Id. “The concept of materiality requires, in
addition, a reasonable possibility that the new evidence would
have influenced the Secretary to decide the claimant's
application differently.” Id. Evidence need not have been

34 

generated prior to the ALJ’s decision to be material, so long as
the evidence relates to the period prior to the ALJ’s decision
and reveals genuinely new information about the claimant’s
condition. Newbury v. Astrue, 321 Fed. App’x 16, 19 (2d Cir.
2009)(citing Pollard v. Halter, 377 F.3d 183, 193 (2d Cir.
2004)(“For example, subsequent evidence of the severity of a
claimant's condition may demonstrate that during the relevant
time period, the claimant's condition was far more serious than
previously thought.”) (internal quotation marks omitted)).

Once it has received new and material evidence, the Appeals
Council must “evaluate the entire record including the new and
material evidence submitted . . . [and] then review the case if
it finds that the administrative law judge's action, findings or
conclusion is contrary to the weight of the evidence currently
of record.” Perez v. Chater, 77 F.3d 41, 44 (2d Cir.
1996)(quoting 20 C.F.R. § 404.970(b)). 
Here, plaintiff argues that the Appeals Council erred in
refusing to consider three documents submitted by plaintiff,
which, although dated after the ALJ’s decision, related back to
the period prior to that decision. (Pl. Mem. at 11-12, 13-14;
Pl. Reply at 2-3). The Appeals Council determined that all three
documents related to a period after the ALJ’s decision and so
“[do] not affect the decision about whether [plaintiff was]
disabled beginning on or before” the ALJ’s decision. (Tr. 2.) 
35 

The court notes that, contrary to defendant’s assertion
(Def. Mem. at 29), plaintiff submitted the documents in question
to the Appeals Council during her administrative appeal. (See
Tr. 2). Accordingly, the documents are a part of the
administrative record for judicial review.

See Perez, 77 F.3d

at 45 (“new evidence submitted to the Appeals Council following
the ALJ's decision becomes part of the administrative record for
judicial review when the Appeals Council denies review of the
ALJ's decision.”).

The first of the documents is a “note file listing” from
Dr. Benatar relating to an examination in his office on March 2,
2012. (Pl. Mem., Exh. A.) The document largely summarizes
plaintiff’s medical history and offers an assessment similar to
Dr. Lippe’s. (Id.) Plaintiff also submitted a cervical spine
impairment questionnaire completed by Dr. Benatar on March 2,
2012, where he indicates that he had not treated plaintiff prior
to March 2, 2012. (Pl. Mem., Exh. B.)

Because neither document

from Dr. Benatar relates to a direct treatment history prior to
the ALJ’s decision, but is based instead on a post-decision
examination, the Council properly rejected both of the documents
as immaterial. See Jones, 949 F.2d at 60. To the extent Dr.
Benatar’s notes in the first document recite plaintiff’s medical
history during the period prior to the ALJ’s decision, the
document still fails to introduce any evidence that is not
36 

cumulative to what is already in the record. Id.  
The last of the three documents is a cervical spine
impairment questionnaire from Dr. Lippe, dated January 12, 2012.
(Pl. Mem. Exh. B.) In it, Dr. Lippe indicates that his first
treatment of plaintiff was on August 25, 2010 and that he had
treated plaintiff monthly since that date. (Id.) Dr. Lippe also
indicates that the symptoms and limitations indicated in the
questionnaire began around August 25, 2010. (Id.) Thus the
questionnaire does clearly relate to a period prior to the ALJ’s
decision. Moreover, though the document is partly cumulative of
information already in the record, it provides a more detailed
assessment than is available in the record of plaintiff’s
physical limitations and ability to work. (Id.) The document
contains Dr. Lippe’s estimates of the number of hours plaintiff
could sit, stand, and walk per day, how much weight plaintiff
could lift and how frequently, and the recommended length and
frequency of breaks, among other details. (Id.) None of this
information was available in as much detail elsewhere in the
record. This evidence is thus new. Particularly in light of the
disagreements between Dr. Skeene, the Commissioner’s consulting
physician, and Dr. Lippe, plaintiff’s treating physician, this
new evidence is relevant to the ALJ’s RFC determination and may
have influenced his determination. See Parajon v. Astrue, No. 08
Civ. 4815 (AKH), 2009 WL 1834325 (S.D.N.Y. June 24, 2009)(“It
37 

cannot be said that the reports would not have changed the ALJ’s
decision, particularly in light of the disagreements between the
Commissioner’s consulting physicians and Plaintiff’s treating
physicians”.) Accordingly, the Appeals Council erred by
rejecting this document as immaterial and remand for
consideration of this evidence is appropriate.

D. THE ALJ DID NOT PROPERLY EVALUATE PLAINTIFF’S CREDIBILITY
IN LIGHT OF EVIDENCE IN THE RECORD.

Social Security regulations require an ALJ to consider a
claimant’s subjective testimony regarding her symptoms in
determining whether she is disabled.

See 20 C.F.R. §

404.1529(a). In evaluating this testimony, the ALJ must follow a
two-step process. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.
2010)(citing 20 C.F.R. 404.1529(a)). First, the ALJ must
determine whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to
cause the symptoms alleged. Id. Second, the ALJ must determine
“the extent to which [the claimant's] symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence.” Id.

If, at step two, a claimant’s subjective evidence of pain
is supported by objective medical evidence, it is entitled to
“great weight.”

Simmons v. United States R.R. Ret. Bd., 982

F.2d 49, 56 (2d Cir. 1992) (internal quotation marks omitted).

38 

If a claimant’s symptoms suggest a greater severity of
impairment than can be demonstrated by the objective medical
evidence, however, “the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir.
2010)(summary order)(citing 20 C.F.R. §404.1529(c)(3)). The ALJ
specifically must consider additional factors including daily
activities, the location, duration, frequency and intensity of
symptoms, the type, effectiveness and side effects of
medication, and other treatment or measures to relieve those
symptoms.

20 C.F.R. § 404.1529(c)(3).  

A “finding that the witness is not credible must . . . be
set forth with sufficient specificity to permit intelligible
plenary review of the record.” Williams, 859 F.2d a 260-61; see
also Escalante v. Astrue, No. 11 Civ. 375, 2012 WL 13936, at *8
(S.D.N.Y. Jan. 4, 2012)(“Conclusory findings of a lack of
credibility will not suffice; rather, an ALJ's decision ‘must
contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that weight.’”
(quoting Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual's Statements, 61 Fed. Reg.
34,483, 34,484 (July 2, 1996))). 
39 

Here, the ALJ found that “the claimant’s medically
determinable impairment could reasonably be expected to cause
the alleged symptoms,” but that the plaintiff’s testimony
concerning the “intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.” (Tr. 41.)  
The plaintiff first objects that the ALJ assessed her
credibility in light of the ALJ’s own RFC assessment rather than
the evidence in the record. (Pl. Mem. at 17-18.) Plaintiff
claims that rather than determining plaintiff’s RFC in light of
plaintiff’s testimony and the rest of the record, the ALJ
determined plaintiff’s RFC before hearing plaintiff’s testimony,
thus contravening 20 C.F.R. § 404.1529(a). (Id.)  
The court finds that the ALJ did not determine plaintiff’s
RFC prior to hearing plaintiff’s testimony. The ALJ explains
that he found plaintiff’s statements regarding the intensity,
persistence, and limiting effects of her symptoms incredible
“[a]fter careful consideration of the evidence.” (Tr. 41.) He
refers specifically to the opinions of plaintiff’s doctors,
plaintiff’s diagnostic test results, treatment history, work
history after October 29, 2009, and range of activities at the
time of the hearing. (Tr. 41.) Given that the ALJ pointed to
specific evidence in the record to support his credibility
40 

determination, the ALJ’s remark that he found plaintiff’s
statements incredible “to the extent they are inconsistent with
the above residual functional capacity assessment” does not
indicate that the RFC assessment was a basis for finding a lack
of credibility. See Briscoe v. Astrue, 892 F. Supp. 2d 567, 585
(S.D.N.Y. 2012)(finding that even though ALJ found plaintiff’s
statements incredible “to the extent they [were] inconsistent”
with the RFC, this did not indicate the ALJ’s credibility
finding was based on the RFC when the ALJ refers specifically to
elements of the record); see also Marquez v. Colvin, No. 12 Civ.
6819 (PKC), 2013 WL 5568718 at *15 (S.D.N.Y. Oct. 9, 2013)
(finding that the ALJ’s remark that plaintiff’s statements were
incredible “to the extent they are inconsistent” with the RFC
was an indication of the extent of credibility the ALJ accorded
the statements, not the reasons for according the statements
such credibility); Crofoot v. Comm. of Soc. Sec'y, No. 1:12–CV–
521 (GLS/ESH), 2013 WL 5493550, at *11 (N.D.N.Y. Sept. 30, 2013)
(holding that “while this sort of boilerplate is inadequate, by
itself, to support a credibility finding, . . . its use, does
not make a credibility determination invalid.”) (internal
quotation marks omitted).  
While the ALJ’s use of boilerplate language does not
invalidate the credibility assessment, his inaccurate references
to the record and failure to give clear and specific reasons for
41 

the finding do. An ALJ’s finding that an applicant is not
credible, “must be set forth with sufficient specificity to
permit intelligible plenary review of the record.” Williams, 859
F.2d a 260-61. The finding must refer to medical facts in the
record and “be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the
adjudicator gave to the individual's statements and the reasons
for that weight.” Escalante, 2012 WL 13936, at *8. 
Here, the ALJ explains his credibility finding by noting
that “no treating or examining physician offered a definitive
opinion that the claimant could not perform any vocational
activity.” (Tr. 41.) This plainly contradicts the record, which
in fact shows that Dr. Lippe opined consistently that plaintiff
was unable to work and disabled (see Tr. 322, 325, 328, 331,
335, 338, 341, 344, 347, 350, 353, 356, 361), and that
plaintiff’s “percentage (0-100%) of temporary impairment” was
100%. (See Tr. 320-21, 323-24, 326-27, 329-330, 332-33, 336-37,
339-40, 342-43, 348-49, 351-52, 358-59, 362-63.) The continuous
finding of plaintiff’s treating physician that plaintiff was
100% impaired and unable to work between at least June 15 2010
to August 4, 2011 support plaintiff’s testimony regarding the
duration, persistence and limiting effects of her disability.
Moreover, in the January 12, 2012 cervical spine impairment
questionnaire submitted to the Appeals Council that referred to
42 

the period before the ALJ’s determination, Dr. Lippe opined that
plaintiff’s impairments would “last at least twelve months.”
(Pl. Mem. Ex. B.)  
The other reasons that the ALJ provides for his credibility
determination are insufficiently specific to permit intelligible
plenary review. For example, ALJ conclusorily states that “the
diagnostic test revealed mild findings,” but does not refer to
any specific test or findings or explain their inconsistency
with plaintiff’s statements. (Tr. 41.) The ALJ observes that
plaintiff had returned to work for six months following her
accident--subsequent to which, according to Dr. Lippe, her
condition worsened--and was currently capable of a “range of
daily activities.” (Id.) Yet the ALJ does not discuss how either
of these facts is inconsistent with plaintiff’s statements
regarding the intensity, persistence, and limiting effects of
her symptoms. (Id.)  
Where, as here, the ALJ’s finding bears no clear relation
to the evidence in the record without further findings or
clearer explanation for the decision, remand is appropriate.
Pratts, 94 F.3d at 39. On remand, the ALJ shall assess
plaintiff’s credibility in light of all evidence in the record
and provide clear, specific reasons for the credibility assigned
to plaintiff’s statements regarding the intensity, persistence,
and limiting effects of her symptoms. 
43 

E. THE ALJ PROPERLY CONSIDERED PLAINTIFF’S OBESITY.

When determining whether a claimant is disabled, an ALJ
must “consider the combined effect of all of [claimant’s]
impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity” to
constitute a disability. 20 C.F.R. §§ 404.1523, 416.923.

This

consideration should include (i) impairments the plaintiff
claims to have, and (ii) impairments of which the ALJ receives
evidence.

20 C.F.R. §§ 404.1512(a). 

“Obesity is not in and of itself a disability.” Guadalupe
v. Barnhart, No. 04-CV-7644, 2005 WL 2033380, at *6 (S.D.N.Y.
Aug. 24, 2005) (citing SSR 02-1p, 67 Fed. Reg. at 57,859).
However, SSR 02-1p provides that a listing is met “if there is
an impairment that, in combination with obesity, meets the
requirements of a listing.”

SSR 02-1p, 67 Fed. Reg. at 57,862.

Nonetheless, “there is no obligation on an ALJ to single out a
claimant’s obesity for discussion in all cases.”

Cruz v.

Barnhart, No. 04-CV-9011, 2006 WL 1228581, at *9 (S.D.N.Y. May
8, 2006).

Rather, “an ALJ’s failure to explicitly address a

claimant’s obesity does not warrant remand.”

Guadalupe, 2005 WL

2033380, at *6 (citations omitted). “When an ALJ’s decision
adopts the physical limitations suggested by reviewing doctors
after examining the Plaintiff, the claimant’s obesity is

44 

understood to have been factored into their decisions.”

Id.;

see also Paulino v. Astrue, No. 08-cv-02813, 2010 WL 3001752, at
*18-19 (S.D.N.Y. July 30, 2010) (holding that obesity need not
be explicitly addressed by ALJ where a plaintiff’s physical
limitations are noted in the record); Martin v. Astrue, No. 05CV-72, 2008 WL 4186339, at *3-4 (N.D.N.Y. Sept. 9, 2008) (same),
aff'd, 337 F. App’x 87 (2d Cir. 2009).  
In this case, plaintiff’s physical abilities were assessed
by her treating and consulting physicians in light of her
obesity, which was known to them. (Tr. 168, 244.)

Plaintiff’s

obesity thus factored into the ALJ’s evaluation of the
physician’s opinions regarding her disability. The ALJ’s failure
to specifically discuss plaintiff’s obesity is not a ground for
remand.

Conclusion
For the foregoing reasons, the court denies both

parties’ cross-motions for judgment on the pleadings, and
remands this case for further proceedings consistent with this
opinion.
1)

Specifically, the ALJ should: 
Reevaluate the weight that should be assigned to the
medical opinions from plaintiff’s treating physician,
Dr. Lippe, in light of any existing evidence and any
new evidence obtained. If the ALJ declines to afford
Dr. Lippe’s opinion controlling weight, the ALJ shall
provide a clear and explicit statement of the “good
reasons” for weight given to the opinion of Dr. Lippe
in accordance with the factors listed in 20 C.F.R. §§
404.1527(c)(2)-(6), 416.927(c)(2)-(6), and he shall
45 

also reconcile Dr. Lippe’s assessment with the opinion
of Dr. Skeene in order to adequately explain the ALJ’s
RFC determination; 

2)

Give specific reasons for the credibility assigned to
plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her pain and
other symptoms, taking into account the relevant
factors enumerated in 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3), and set forth his determination with
sufficient specificity so that the court can determine
whether the credibility determination is supported by
substantial evidence; and 

3)

Reevaluate plaintiff’s residual functional capacity in
light of any newly obtained information relevant to
plaintiff’s claims.  

SO ORDERED. 

Dated:
Brooklyn, New York 
December 24, 2014 

_________/s/_________________ 
KIYO A. MATSUMOTO 
United States District Judge 
Eastern District of New York 

46