Bracco v. Commissioner of Social Security

Filing 21

MEMORANDUM & ORDER: For the reasons set forth in the attached, the Court DENIES the Commissioner's motion for judgment on the pleadings 15 and GRANTS Bracco's cross-motion 17 . The Commissioner's decision is remanded for further consideration and new findings consistent with this Memorandum & Order. The Clerk of Court is respectfully requested to enter judgment accordingly. Ordered by Judge Pamela K. Chen on 3/31/2015. (Pelaez, Jenny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
–––––––––––––––––––––––––––––––––––x
GAETANO BRACCO,
Plaintiff,
MEMORANDUM & ORDER
13–CV–2637 (PKC)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
–––––––––––––––––––––––––––––––––––x
PAMELA K. CHEN, United States District Judge:

Plaintiff Gaetano Bracco (“Bracco” or “Plaintiff”) commenced this action under 42
U.S.C. § 405(g), seeking judicial review of the decision of the Defendant Commissioner of
Social Security (the “Commissioner”) denying Bracco’s claim for Social Security Disability
benefits. (Dkt. 1.) The Commissioner moves for judgment on the pleadings, affirming his
decision, and Bracco cross–moves for judgment on the pleadings, reversing the Commissioner’s
decision and remanding for a new hearing and decision. Fed. R. Civ. P. 12(c); (Dkt. Nos. 15,
17). For the reasons set forth below, the Court GRANTS Bracco’s cross–motion, and DENIES
the Commissioner’s motion.
BACKGROUND
I.

Medical Evidence

A. Prior to Plaintiff’s Alleged Onset Date of June 21, 2010
Plaintiff was initially seen by Anna Kharitonova, M.D., on December 16, 2009 with
complaints of depression, poor sleep, low energy, and panic attacks.

1

(Tr. 172–73, 177.) 1

“Tr. __” refers to the administrative record, which largely consists of the record considered by
Administrative Law Judge Patrick Kilgannon (“ALJ”). (Dkt. 6.)

Plaintiff stated that he first felt depressed one and one–half years earlier when he quit drinking.
(Tr. 177.) Plaintiff stated that he gained about eighty pounds during this one and a half year
period. He was attending Alcoholics Anonymous (“AA”) meetings at the time. (Id.)
Upon mental status examination, Plaintiff appeared anxious and depressed. (Tr. 172.)
His behavior was tense. Plaintiff’s speech was slow, and his mood was depressed and anxious.
Plaintiff’s affect was constricted. There was no evidence of depersonalization, and Plaintiff
denied having hallucinations.

Plaintiff’s thought process was goal–directed.

He reported

delusions insofar as he believed that people were after him. Plaintiff had impaired concentration,
limited judgment and insight, and average intelligence. (Id.) Dr. Kharitonova diagnosed an Axis
1, adjustment disorder with mixed anxiety, alcohol dependency, depressed mood, and panic
disorder without agoraphobia. 2 (Tr. 173.) She rated Plaintiff’s GAF as 59. 3 Dr. Kharitonova
prescribed Lexapro and recommended psychotherapy. (Id.)
Plaintiff presented to Dr. Kharitonova for follow up on December 30, 2009. (Tr. 176.)
Plaintiff stated that he felt stressed out and had an anxiety attack. He complained that his
concentration and focus were poor.

Plaintiff reported having no side effects from the

medication. Upon mental status examination, Plaintiff appeared anxious. His speech was slow.
Plaintiff’s mood was sad and anxious. Plaintiff’s affect was constricted and his thought process
2

In the multi–axial evaluation, Axis I refers to clinical disorders and other conditions that may
be a focus of clinical attention; Axis II refers to personality disorders and mental retardation;
Axis III refers to general medical conditions; Axis IV refers to psychosocial and environmental
problems; and Axis V rates the patient’s Global Assessment of Functioning (“GAF”). See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th
edition – text revision 2000) (“DSM–IV–TR)” at 27–34.
3

GAF scores are assessments of individuals’ “overall level of functioning,” i.e., psychological,
social, and occupational functioning. Scores in the range of 51 and 60 indicate moderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
co–workers). DSM–IV–TR at 34.
2

was coherent. Plaintiff exhibited no delusions. He denied suicidal/homicidal ideation. Plaintiff
had reduced attention and concentration. His insight and judgment were fair. Dr. Kharitonova
prescribed Lexapro. (Id.)
Upon follow–up on January 13, 2010, Plaintiff reported to Dr. Kharitonova that he had
been sad, depressed, and stressed. (Tr. 175.) Mental status findings were unchanged, and
Plaintiff was to continue taking Lexapro. He had no medication side effects. (Id.) On February
3, Plaintiff reported feeling stressed out and anxious, and complained of poor sleep. (Tr. 174.)
He stated that he still had panic attacks. There were no medication side effects. Mental status
examination was unchanged except that Plaintiff’s appearance was sad. Plaintiff was to continue
taking Lexapro. (Id.) On February 22, Plaintiff reported feeling less anxious with fewer panic
attacks. (Tr. 185.) Mental status revealed Plaintiff’s mood to be anxious. His affect was labile.
Plaintiff spoke at a normal rate. The remainder of the examination was unchanged. Plaintiff
reported having no side effects from Lexapro and was to continue using it. (Id.)
On March 24, 2010, Plaintiff related to Dr. Kharitonova that he still felt anxious but less
stressed. (Tr. 184.) He reported having no medication side effects. Mental status examination
revealed Plaintiff to appear sad with a constricted affect. His mood was sad and anxious.
Examination was otherwise unchanged. Plaintiff was to continue taking Lexapro. (Id.) Upon
returning to Dr. Kharitonova on April 21, 2010, Plaintiff complained of being depressed,
anxious, and not sleeping well. (Tr. 183.) Plaintiff had no medication side effects. On mental
status examination, Plaintiff’s appearance was normal.

His mood was sad and anxious.

Plaintiff’s thought process was coherent. The remainder of the examination was unchanged. Dr.
Kharitonova prescribed Lexapro. (Id.)

3

On May 19, Plaintiff reported being sad, depressed, and stressed out. (Tr. 182.) He had
no medication side effects. His appearance was normal and mood was anxious. The remainder
of the examination was unchanged. Plaintiff was to continue taking Lexapro. (Id.) On June 9,
Plaintiff stated that he was stressed. (Tr. 181.) Plaintiff had no medication side effects. His
appearance was sad.

Plaintiff’s mood was sad, but not anxious.

Thought process was

circumstantial. Examination was otherwise unchanged. Plaintiff was to begin taking Buspar in
addition to Lexapro. (Id.)
B. Evidence on or After June 21, 2010 (Alleged Onset Date)
On June 23, Plaintiff complained of being very depressed to Dr. Kharitonova. (Tr. 180.)
He reported having fallen at work about three days earlier and complained of pain all over his
body. He appeared sad and his mood was sad and anxious. Dr. Kharitonova prescribed Lexapro
and Buspar. (Id.)
Electrodiagnostic studies conducted on June 23, 2010, showed hyperconduction of class
III fibers of the right peroneal and sural nerves, probably due to irritation. (Tr. 168.)
Plaintiff was seen by Joseph Fricano, a board certified chiropractic neurologist, on June
29, 2010, for examination and treatment of injuries reportedly sustained while working as a
plumber for the New York Police Department. (Tr. 164–65.) Plaintiff stated that on June 21,
2010, he slipped and twisted his left knee and thoracic and lumbar spine, and fell on his knee.
(Tr. 164.) He complained of middle and low back pain, left knee pain with crepitus, and
numbness and weakness in both legs. Examination revealed decreased lumbosacral range of
motion with spasm and complaints of pain on palpation over the bilateral sacroiliac joints and
medial knee. McMurray’s test was positive, as were compression signs. There was edema of the
medial knee. Achilles jerk was decreased on the right. There was decreased pin prick sensation

4

over the right L5–S1. Straight leg raising was positive at 50 degrees on the right. Pelvic tilt and
Kemp’s and Valsalva maneuvers were positive. (Id.) Dr. Fricano diagnosed cervical, thoracic,
and lumbar disc syndrome and internal derangement of the left knee.

(Tr. 164–65.)

He

recommended physical therapy for the left knee and chiropractic treatment for the thoracic and
lumbar spines. (Tr. 165.) Plaintiff was to undergo electromyography (“EMG”) of the lower
extremities, MRI of the lumbosacral spine and left knee, and an orthopedic consultation. (Id.)
When next seen by seen Dr. Kharitonova on June 30, 2010, Plaintiff complained that he
was depressed and had back and leg pain. (Tr. 179.) Examination was unchanged except that
his thought process was circumstantial and cognition was slowed.

(Id.)

Plaintiff had no

medication side effects, and Dr. Kharitonova prescribed Lexapro and Buspar (at an increased
dosage). (Id.) On July 14, Plaintiff complained that he was depressed, had back pain, and was
sleeping poorly. (Tr. 178.) Examination and treatment were unchanged. Plaintiff was to
continue taking Lexapro and Buspar. (Id.)
Plaintiff was evaluated by Armin M. Tehrany, M.D., an orthopedic surgeon, on July 27,
2010. (Tr. 159–62, 170.) Plaintiff stated that he had “multiple bouts” of swelling in his left knee
and a feeling that there was a loose fragment in his knee. (Tr. 159.) Plaintiff also said that he
had episodes of knee−locking. On examination, there was tenderness of the medial and lateral
joint lines with some edema and effusion. Plaintiff exhibited full range of motion. A Lachman
test was equivocal due to Plaintiff’s reports of pain. (Id.) Dr. Tehrany diagnosed internal
derangement of the left knee with a possible loose fragment and ordered an MRI of the left knee.
(Id.; see Tr. 160, 162.)
Plaintiff was examined by Shan Nagendra, M.D., on August 16, 2010, for a follow−up
neurological examination and pain management. (Tr. 236.) Plaintiff complained of left knee

5

pain with numbness and weakness in both legs. Plaintiff was observed using a cane to walk.
Examination of the thoracic spine revealed abnormal range of motion on flexion, extension, and
right rotation, all with pain. Id. Percussion sign was positive at T5–T7. Examination of the
lumbar spine revealed tenderness and spasm bilaterally. Flexion, extension, rotation bilaterally,
and lateral flexion bilaterally were all abnormal and accompanied by pain. Range of left knee
motion was abnormal on flexion and extension. Dr. Nagendra prescribed Percocet and continued
physical therapy. (Id.)
Upon follow–up with Dr. Nagendra on September 7, 2010, Plaintiff complained of left
knee pain. (Tr. 234.) Examination of the lumbar spine revealed pain on flexion, extension,
rotation bilaterally, and flexion bilaterally. Examination of the left knee revealed pain on flexion
and extension. Dr. Nagendra gave Plaintiff a referral for an MRI of the left knee and prescribed
Percocet. (Id.)
Plaintiff was seen by Vilor Shpitalnik, M.D., on September 7, 2010 for a psychiatric
evaluation. (Tr. 239–40.) Plaintiff presented with complaints of depression, anxiety, insomnia,
lack of energy, feelings of hopelessness, helplessness, nightmares, panic attacks, and persistent,
and at times, excruciating physical pain. (Tr. 239.) Plaintiff stated that his emotional condition
became worse after the events of September 11, 2001, when he worked for two weeks cleaning
up the World Trade Center area. (Tr. 239; see Tr. 237.) Plaintiff alleged that he started drinking
alcohol in order to alleviate emotional instability, and he continued working. (Tr. 239.) Plaintiff
related that in 2008, he was admitted to an inpatient drug treatment program for 28 days, and had
not consumed alcohol since that time. He received psychiatric treatment with Dr. Kharitonova,
who prescribed Lexapro and Buspar. Plaintiff indicated that during the course of treatment, his
condition substantially improved and he was able to work fulltime. Plaintiff stated that a work–

6

related injury on June 21, 2010, caused psychological instability and his current complaints.
(Id.)
Upon mental status examination, Plaintiff presented with a sad facial expression. (Tr.
240.) He appeared in physical discomfort as the interview progressed. Plaintiff’s affect was
constricted. His mood was depressed, anxious, and tense. Plaintiff’s speech was coherent,
articulate, and goal–directed. There was no evidence of a thought process disorder and no
circumstantiality or tangentiality. There was no evidence of psychosis and Plaintiff denied
hallucinations and delusions. Plaintiff had no ideas of reference and denied suicidal or homicidal
ideation. Plaintiff’s sensorium was clear. His long–term memory was grossly intact. Plaintiff’s
short–term memory was limited; he remembered three objects in a five−minute interval and was
able to recall one out of three. Plaintiff’s attention and concentration were limited as tested by
serial subtraction and observed in general conversation. His insight and judgment were good.
Dr. Shpitalnik diagnosed on Axis I, major depressive disorder. He rated Plaintiff’s GAF as 60.
Dr. Shpitalnik recommended psychotherapy and prescribed Lexapro and Buspar, indicating that
he intended to increase Plaintiff’s dosage. (Id.)
Upon return to Dr. Nagendra on September 21, 2010, Plaintiff complained of low back
and left knee pain. (Tr. 233.) He was walking with a cane and taking Percocet. Plaintiff was to
continue with physical therapy and taking medication. (Id.)
X–rays of the lumbosacral spine taken on September 30, 2010 by Kikkeri Vinaya, M.D.
revealed no significant degenerative disease. (Tr. 193.) X–rays of the left knee showed three
well corticated bony densities suggesting loose bodies, for which further evaluation as clinically
dictated was suggested. There were no significant degenerative changes of the knee joint. (Id.)

7

Mahedra Misra, M.D., conducted a consultative physical examination on September 30,
2010. (Tr. 186–92.) Plaintiff was driven to the examination by his father. (Tr. 187.) He
presented with complaints of back and left knee pain for the past three months. (Tr. 186.)
Plaintiff indicated that his mid and lower spine were in constant pain, rated as ten out of a scale
of ten, and that the pain radiated to his legs. (Tr. 187.) He further reported that his left knee
swelled at times, and that walking and doing steps was painful. He stated that he could stand for
only fifteen minutes at a time and sit for one–half hour. He further said that he could not walk
more than two blocks at a time with the help of a cane, was not was not capable of lifting or
carrying any weight, and that his wife did all the household chores. Plaintiff also stated that he
did not drive. (Id.)
Upon examination, Plaintiff, who was 69 inches tall, weighed 292 pounds, and appeared
obese. (Tr. 187–88.) Plaintiff preferred to walk with the help of a cane, which had been
prescribed. (Tr. 188.) Plaintiff walked heel–to–toe with heavy limping and was not able to heel
walk, toe walk, or squat. His posture was erect. Plaintiff was unable to get on the examination
table, and the examination was conducted in the sitting and standing positions. Dr. Misra found
Plaintiff’s neurological status in both upper and lower extremities to be normal with no evidence
of any motor or sensory deficit. Plaintiff had good finger dexterity and full grip strength
bilaterally. (Id.) Cervical and shoulder movements were normal, with complaints of discomfort.
(Tr. 188, 191, 192.) Movements of the thoracic/lumbar spine were very restricted; flexion–
extension was 10 degrees (90 full) and lateral flexion was five degrees (30 full). (Tr. 188, 192.)
Straight leg raising was five degrees on the right and zero degrees on the left. (Id.) The hip and
knee joints were restricted; flexion extension of the knee was 40 degrees on the right and 5

8

degrees on the left (120 normal). (Tr. 188, 191.) There was evidence of muscle spasm in the
lumbar paravertebral muscles. (Tr. 188.) There was no muscle atrophy. (Id.)
Dr. Misra’s impression was that Plaintiff most likely had discogenic type disease in the
cervical, thoracic, and lumbar spines, but he noted that his findings were entirely clinical because
Plaintiff had not undergone a radiological or neurological workup. (Tr. 189.) He opined that
Plaintiff would not be able to do jobs which required prolonged standing, sitting, walking,
crouching, bending, climbing, lifting, pulling, or pushing. (Id.)
Dana Jackson, Psy.D., conducted a consultative psychiatric examination on October 3,
2010. (Tr. 194–97.) Plaintiff was driven to the examination by his father. (Tr. 194.) He
presented with complaints of anxiety. (Id.) Plaintiff stated that he had feelings of sadness,
hopelessness, worthlessness, periodic crying spells, anhedonia, decreased energy, increased
appetite, increased sleep, and periodic thoughts of death without suicidality. (Tr. 194–95.) He
reported having panic attacks, during which, he experienced heart palpitations, sweating, a
feeling that he was going to die, and that he was going crazy. (Tr. 195.) Plaintiff stated that
panic attacks changed his life such that he could not be around people for a long period of time.
He was currently taking Lexapro and Buspar. Plaintiff also reported a history of alcohol usage
every day between 2001 and 2008 and had a history of inpatient alcohol rehabilitation. He has
since been sober and attended AA meetings. (Id.)
Upon mental status examination, Plaintiff was cooperative and answered questions
willingly and openly. (Tr. 195.) Plaintiff was agitated during the evaluation reportedly due to
left knee and back pain. (Id.) Dr. Jackson observed that Plaintiff walked with a cane and
appeared to be in distress because of his reported pain. (Tr. 197). Plaintiff’s speech was
coherent and relevant, and tone and intensity were within normal limits. (Tr. 195.) There were

9

no speech deviations. Id. Plaintiff exhibited no thought process disorder. (Tr. 196.) His thoughts
were logical, purposeful, and goal–directed. Plaintiff had no delusions or hallucinations. He
denied any history of hearing voices. Plaintiff’s affect was dysphoric, and his mood was “tired
and not good.” (Id.) Plaintiff denied suicidal or homicidal ideation, plan, or intent. Plaintiff
exhibited good remote memory functions. His recent memory functions were diminished. He
recalled one out of four objects after five minutes. His auditory digit span was intact with a
recall of five digits forward and three backward. Plaintiff’s attention and concentration were
within normal limits. He was able to do simple calculations. Plaintiff exhibited below average
intellectual skills. His general knowledge and fund of information were well below average.
Plaintiff did not exhibit good abstract thinking capacity. He was unable to interpret proverbs and
similarities and unable to do serial sevens. Plaintiff had good insight into his condition. His
social judgment skills were within normal limits. (Id.)
Plaintiff reported that he did not cook, clean, or shop. (Id.) He did not drive or use
public transportation. Plaintiff stated that he minimally socialized and did not list any current
interests or hobbies.

Dr. Jackson opined that Plaintiff’s allegations and his mental status

evaluation appeared to be consistent. (Id.)
Dr. Jackson diagnosed on Axis I: depressive disorder not otherwise specified; rule–out
major depressive disorder recurrent type; anxiety disorder not otherwise specified; rule–out panic
disorder without agoraphobia; and alcohol dependence in full remission. (Tr. 196–97.) She
noted that Plaintiff should continue with Lexapro and Buspar to address his depressive and
anxiety symptoms, and would benefit from psychotherapy. (Tr. 197.) Dr. Jackson opined that
Plaintiff’s symptoms appeared to be of a moderate nature and that his ability to interact with
others in a social situation appeared to be intact. (Id.)

10

When seen by Dr. Nagendra on October 5, 2010, Plaintiff reported that his complaints of
left knee and low back pain were unchanged. (Tr. 235.) He was walking with a cane and taking
Percocet. Dr. Nagendra instructed Plaintiff to continue physical therapy and medication. (Id.)
Mario Funicelli, D.C., completed a progress report for the New York State Workers’
Compensation Board on October 11, 2010. (Tr. 166–67.) Dr. Funicelli, who had seen Plaintiff
that day, diagnosed lumbosacral radicular syndrome and internal derangement of the knee and
opined that Plaintiff had a 100% temporary impairment and could not return to work. (Id.)
W. Skranovski, a state agency psychiatric consultant, 4 reviewed the medical evidence of
record and completed a “Psychiatric Review Technique” form on October 26, 2010. (Tr. 198–
211.) Skranovski concluded that Plaintiff’s impairments did not meet the criteria of sections
12.04 (Affective Disorders), 12.06 (Anxiety–Related Disorders), or 12.09 (Substance Addiction
Disorders) of the Listing of Impairments, but noted that Plaintiff presented a medically
determinable impairment in each of these categories. (Tr. 198, 201, 203, 206.) With respect to
the “B” criteria of the Listing of Impairments, Skranovski opined that Plaintiff had no restriction
of activities of daily living and no difficulties in maintaining social functioning or maintaining
concentration, persistence, or pace.

(Tr. 208.)

Plaintiff had no repeated episodes of

deterioration. (Id.)
On November 10, 2010, Plaintiff complained to Dr. Nagendra of left knee and low back
pain. (Tr. 232.) He walked with a cane. Dr. Nagendra renewed Plaintiff’s medication and noted
that Plaintiff was awaiting clearance for an MRI. (Id.) On November 23, Plaintiff complained
of low back pain and was walking with a cane. (Tr. 231.) He was still awaiting clearance for
4

Plaintiff challenges Skranovski’s qualifications and contends that Skranovski is a layperson
rather than a physician. (Dkt. 18 at 10.) As the record does not conclusively establish that
Skranovski is in fact a physician, and the ALJ’s decision did not identify Skranovski’s
profession, the Court will not use the title “Dr.”
11

MRI of his left knee. Examination of the left knee revealed pain on palpation and abnormal
range of motion on flexion and extension with pain. There was no edema noted. Dr. Nagendra
renewed Plaintiff’s medication and instructed Plaintiff to continue physical therapy.

(Id.)

Examination of the left knee on December 8, revealed pain on palpation and abnormal range of
motion on flexion and extension at 80 degrees with pain. (Tr. 230.) Patella grind and anterior
drawer tests were positive. There was no edema noted. (Id.) On December 22, Plaintiff stated
that medication provided no relief. (Tr. 229.) Examination of the left knee revealed abnormal
range of motion on flexion and extension. Patella grind and anterior drawer tests were positive.
Dr. Nagendra changed Plaintiff’s medication. (Id.)
When seen by Dr. Nagendra on January 5, 2011, Plaintiff complained of increasing pain
over the prior few weeks. (Tr. 227.) Examination of the left knee revealed pain on palpation.
There was abnormal range of motion on flexion and extension and positive patella grind and
anterior drawer tests, all with pain. Plaintiff was still awaiting an MRI of his knee. Dr.
Nagendra renewed Plaintiff’s medication. (Id.)
An MRI of Plaintiff’s left knee conducted on January 14, 2011 showed tricompartmental
cartilage abnormalities (worst in the lateral compartment) and a small joint effusion. (Tr. 245–
46.)
Upon return to Dr. Nagendra on January 19, 2011, Plaintiff stated that medication was
not helpful. (Tr. 228.) He was waiting for the MRI results of his left knee. Examination was
unchanged from the prior visit. Dr. Nagendra stated that Plaintiff was to continue with the
present course of therapy and referred Plaintiff to pain management. (Id.)
Dr. Shpitalnik conducted an updated psychiatric evaluation on February 1, 2011. (Tr.
237–28). The report indicated that Plaintiff’s psychological condition had not changed since his

12

pain and disability represented the main stressors and still persisted. (Tr. 237.) Plaintiff reported
that he was withdrawn, homebound, and had quit most of his usual activities. He further
reported that his depression and anxiety affected his ability to concentrate, which interfered with
his daily activities. Dr. Shpitalnik noted that Plaintiff was compliant with treatment, took his
medication, and kept his appointments. Upon mental status examination, Plaintiff presented with
a sad facial expression. He appeared to be in physical discomfort as the interview progressed.
(Id.) Plaintiff’s speech was coherent, articulate, and goal–directed. (Tr. 237–38.) There was no
circumstantiality or tangentiality. (Tr. 238.) Plaintiff’s affect was constricted and his mood was
depressed, anxious, and tense. There was no evidence of psychosis elicited. Plaintiff had no
ideas of reference and denied hallucinations or delusions. Plaintiff denied having suicidal or
homicidal intentions. Dr. Shpitalnik noted that Plaintiff’s cognitive functioning was significant
for short–term memory and attention concentration deficit. Dr. Shpitalnik diagnosed major
depressive disorder and opined that Plaintiff was in need of continued psychiatric treatment.
(Id.)
On February 3, 2011 by Dr. Tehrany requested medical clearance for Plaintiff to undergo
minimally invasive left knee arthroscopic synovectomy and arthroscopic removal of a loose
body. (Tr. 251.)
An MRI of the lumbosacral spine conducted on June 13, 2011, revealed (1) no significant
focal bony injury or other bony lesions; (2) moderate dextroscoliosis; and (3) a small focal
central protrusion at the L5–S1 level not associated with any significant neural impingement.
(Tr. 244.)
Plaintiff was examined by Igor Stiler, M.D., a neurologist, on September 9, 2011. (Tr.
255–56.) Plaintiff complained of an increase in left knee pain, which he rated 8−9 out of a scale

13

of 10. (Tr. 255.) He used a cane to assist with ambulation due to knee pain and was awaiting
authorization for surgery on his left knee. Plaintiff also had low back pain, rated as 8−9 out of a
scale of 10. Examination of the cervical spine revealed no tenderness or muscle spasm, and there
was full range of motion in all planes. Examination of the lumbar spine revealed tenderness and
spasm at L3 through S1. Range of motion was limited as follows: flexion to 40–50 degrees (90
normal); extension to 20 degrees (30 normal); and lateral flexion was 20 degrees bilaterally (30
normal). Straight leg raising was performed to 60 degrees bilaterally (90 normal). (Id.) Muscle
strength was 5/5 (full) in all tested muscle groups. (Tr. 255–56.) Plaintiff had no sensory deficit
and deep tendon reflexes were 2+/4 bilaterally in all extremities.

(Tr. 256.)

There was

tenderness in the infrapatellar region of the left knee increasing with external rotation and
flexion. Plaintiff walked with an antalgic gait. Dr. Stiler opined that Plaintiff had a temporary
total disability and needed authorization for surgery of the left knee, followed by rehabilitation of
the knee.

He believed that when issues with the left knee resolved, Plaintiff’s low back

symptoms might improve. Dr. Stiler noted, however, that if Plaintiff’s left knee pathology were
not addressed, his lumbar symptoms would continue and become worse. (Id.)
Dr. Shpitalnik, the psychiatrist, examined Plaintiff again on November 22, 2011. (Tr.
241.)

Plaintiff complained of depressed mood, anxiety, and insomnia, which remained

unchanged over the prior five weeks. Plaintiff indicated that his sleep was inadequate. Upon
mental status examination, Plaintiff appeared tense and apprehensive. His grooming was poor.
Plaintiff’s mood was sad and anxious. His affect was constricted. Plaintiff’s thoughts were
coherent and he had no delusions. Plaintiff denied having hallucination and denied suicidal or
homicidal ideation. His long term memory was intact. Plaintiff’s short–term memory was
impaired and his attention was reduced. Id. Plaintiff insight was fair and his judgment was good.

14

Dr. Shpitalnik prescribed Lexapro and an increased dosage of Xanax. Dr. Shpitalnik wrote that
Plaintiff was unable to function in any work setting. (Id.)
Chitoor Govindaraj, M.D., conducted a consultative physical examination on January 19,
2012. (Tr. 257–60.) Plaintiff presented with neck, back, and knee pain. (Tr. 257.) Plaintiff’s
medications consisted of Percocet (four daily), Nasonex, Advair, Nexium, Lexapro, and Xanax
(twice daily). (Tr. 257–58.) Plaintiff had a driver’s license and drove. (Tr. 258.) He denied
having undergone surgery. He performed home exercises. On examination, Plaintiff, who was
68 inches tall, weighed 280 pounds. (Id.) Examination of the spine revealed no kyphoscoliosis,
gibbous, or tenderness. (Tr. 259.) Range of motion was within normal limits. Examination of
the extremities revealed full vibratory sense and knee jerks. Motor system, sensory system, and
reflex findings were all normal. Range of back motion and joints were normal. There was no
evidence of muscle spasm. Straight leg raising was normal. Plaintiff’s posture and gait were
normal. He did not need a cane for ambulation. (Id.)
Dr. Govindaraj diagnosed: (1) history of back, neck, and knee pain; (2) history of
gastrointestinal reflux disease; (3) history of allergic rhinitis; and (4) history of bronchospasm
and occasional difficulty breathing with no definite history of asthma. He opined that Plaintiff
was medically stable and cleared with no restrictions for standing, walking, or lifting weights.
(Id.)
II.

Non–Medical Evidence
Plaintiff was born in 1968 and has a high school education. (Tr. 33, 98, 117). Plaintiff

was employed as a plumber between January 1990 and February 21, 2010. (Tr. 33, 118.) The
job required walking for three hours per day, standing four hours, sitting one hour, and lifting
100 pounds or more. (Tr. 118–19, 132–33.)

15

In a function report dated September 30, 2010 (Tr. 122–31), Plaintiff indicated that he
lived with his family in a house. (Tr. 122.) Plaintiff wrote he did not perform any household
chores or prepare meals; all such activities were done by his wife or son. (Tr. 123–24.) He
stated that he had a hard time with personal care and that such activities took longer. (Tr. 123.)
Plaintiff indicated that his impairments impacted his ability to sleep. (Id.) Plaintiff stated that he
could go out alone and sometimes drive if he was not in too much pain. (Tr. 125.) He otherwise
received rides from others. Plaintiff indicated that he did not shop. (Id.) Plaintiff related that he
did no longer paid bills, counted change, or handled a savings account, stating that he had a hard
time counting. (Tr. 126.) Plaintiff did not socialize. (Id.)
Plaintiff stated that his ability to sit was “OK.” (Tr. 127.) He wrote that he could not
stand for too long or walk much. He climbed stairs very slowly and was unable to kneel or
squat. His ability to reach was not good. Plaintiff wrote that his ability to use his hands was
“ok” but not as good as before. (Id.) Plaintiff indicated that he walked with the aid of crutches
or a cane and that the crutches were prescribed by a doctor. (Tr. 128.) He used an assistive
device all the time. Plaintiff wrote that he was limited to walking ten feet at a time before
needing to rest for ten minutes. Plaintiff stated that he had problems paying attention because he
“wander[ed] off[,]” and that he was unable to finish what he starts because he got tired. (Id.)
Plaintiff indicated that he could follow written instructions but not spoken instructions. He did
not have difficulty getting along with people in authority. (Id.) Plaintiff related that he had
trouble remembering things and that stress or schedule changes made him tired. (Tr. 129.) His
wife reminded him to take his medication and to take care of his personal needs and grooming.
(Tr. 124.)

16

Plaintiff also answered questions about pain. (Tr. 129–31.) Plaintiff wrote that he first
experienced it on June 21, 2010, and it began to affect his activities at that time. (Tr. 129.)
Plaintiff had left knee and back pain, which he described as stabbing accompanied by numbness
in both legs. (Tr. 129–30.) Plaintiff stated that pain occurred all the time and was getting worse.
(Tr. 130.) All activities caused pain. Plaintiff used Percocet four times a day to relieve the pain.
It worked fast but did not last too long. Plaintiff stated that Percocet caused nausea. (Id.)
Plaintiff testified at the hearing held on December 13, 2011. (Tr. 33–40.) Plaintiff stated
that on June 21, 2010, he was working and slipped on a piece of pipe. (Tr. 34.) He testified that
he twisted his back and knee and was knocked unconscious because he landed on his head. (Id.)
Plaintiff testified that he was attempting to file for retirement and disability pension; he also
stated that he was currently receiving Workers’ Compensation benefits. (Tr. 35.) Plaintiff stated
that he was unable to look for work because he could not move. Plaintiff testified that he was
doing physical therapy twice a week and was waiting for clearance from Workers’
Compensation to undergo knee surgery. (Id.)
Regarding his mental conditions, Plaintiff stated that he saw a doctor for depression,
anxiety, and flashbacks.

(Tr. 36.)

Plaintiff testified that the Lexapro and Xanax he was

prescribed for these conditions were helping. (Id.)
Plaintiff stated that his wife cooked for him and worked outside the home. (Tr. 36–37.)
Plaintiff testified that he was unable to sleep. (Tr. 36.) He stated that he could not lie down or
stand too long. (Tr. 37.) Plaintiff testified that he could get dressed with some assistance from
his wife. Plaintiff could bathe himself on occasion. (Id.) He testified that he did not take care of
his son at all. (Tr. 36–38.) Plaintiff stated that he spent his days trying to watch television. (Tr.

17

38.) He stated that he had to get up every couple of hours because of the pain. Plaintiff testified
that he could not read a book because he could not maintain concentration. (Id.)
Plaintiff testified that he could lift a maximum of three or four pounds. (Tr. 38.) He
stated that he could stand for ten to fifteen minutes, after which he got sharp pains in his back
and his knee buckled or gave out. (Tr. 38–39.) Plaintiff testified he could walk up to one–half
block. (Tr. 39.) He stated that he started using a cane the day that he got hurt. He could sit for
about one–half hour to 45 minutes at a time. (Id.) Plaintiff testified that he could not drive and
that he primarily got around by having his father drive him. (Tr. 34.)
III.

Vocational Expert Testimony
Edna Clark, a vocational expert, testified at the hearing. (Tr. 40–43; see Tr. 95–96.) Ms.

Clark testified that according to the U.S. Department of Labor, Dictionary of Occupational Titles
(“DOT”), Plaintiff’s work as a plumber (DOT No. 862.381–030) is heavy and skilled. (Tr. 41.)
The ALJ posed a hypothetical individual of Plaintiff’s age, education, work experience with the
residual functional capacity to perform sedentary work (i.e. lifting up to ten pounds occasionally,
standing or walking approximately two hours per eight–hour workday, siting for approximately
six hours per eight–hour workday with normal breaks) with no frequent pushing, pulling,
operating hand or foot controls. The individual could not climb ladders, ropes, or scaffolds;
could occasionally climb ramps and stairs; could occasionally balance, stoop, kneel, crouch, or
crawl; and had no manipulative, visual, or communicative limitations. The individual was also
limited to low–stress jobs, meaning only occasional decision making and occasional changes in
the work setting. Ms. Clark responded that such an individual was unable to perform Plaintiff’s
past work. (Id.)

18

In response to the same hypothetical, Ms. Clark testified that the individual would be able
to perform such other jobs as: surveillance systems monitor (DOT No. 379.367–010), with about
34,000 jobs nationally and 1,900 jobs locally; bench assembly worker (DOT No. 734.687–018),
with 150,000 jobs nationally and 2,100 jobs locally; and buckle wire inserter (DOT No.
734.687–034), with 6,000 jobs nationally and 700 jobs locally. (Tr. 42.) Ms. Clark further
testified that the above individual could still perform these jobs if the individual was limited to
simple, routine, and repetitive work or used a hand–held assistive device. (Id.)
IV.

Evidence Submitted to the Appeals Counsil After the ALJ’s Decision
On January 9, 2012, an MRI of the cervical spine performed showed straightening of the

cervical curvature and disc desiccation in the lower cervical spine with left paracentral protrusion
abutting the cord at C5–C6 and left paracentral protrusion effacing the thecal sac at C6–C7
without cord compression. (Tr. 264.)
EMG and nerve conduction velocity (NCV) studies also conducted that day, revealed
evidence of moderate acute C5 radiculopathy bilaterally. (Tr. 262–63.)
An MRI of the lumbar spine conducted on January 10, 2012, revealed: (1) biforaminal
herniations, right greater than left, at L3–L4 resulting in impingement upon the right exiting L3
nerve root and encroachment upon left exiting L3 nerve root; (2) asymmetric left paracentral disc
bulging at L4–L5 resulting in impingement upon left L5 nerve root with mild central stenosis
and left greater than right neural foraminal narrowing; (3) convexity of mid to lower lumbar
spine toward the right and exaggerated lumbar lordosis. (Tr. 265.)

19

STANDARD OF REVIEW
I.

FRCP 12(c)
Rule 12(c) of the Federal Rules of Civil Procedure (“FRCP”) provides that “[a]fter the

pleadings are closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” FRCP 12(c). The legal standards applicable to a FRCP 12(c) motion are the
same as those applied to a FRCP 12(b)(6) motion to dismiss. Bank of New York v. First
Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive a FRCP 12(b)(6) motion, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). In evaluating a FRCP 12(b)(6) motion, the Court must accept all well–pleaded factual
allegations of the complaint as true and draw all reasonable inferences in favor of the non–
moving party, here, Plaintiff. Id. at 679. Where a Plaintiff proceeds pro se, the Court must
construe the pleadings liberally and interpret them to raise the strongest arguments they suggest.
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013); Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 472 (2d Cir. 2006).
II.

Review of Administrative Decisions
In reviewing a final decision of the Commissioner, the Court’s duty is to determine

whether it is based upon correct legal standards and principles and whether it is supported by
substantial evidence in the record, taken as a whole. See Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012) (the Court “is limited to determining whether the [Social Security
Administration’s] conclusions were supported by substantial evidence in the record and were
based on a correct legal standard”). “‘Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a

20

conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)) (alterations and internal quotation marks omitted). In determining
whether the Commissioner’s findings were based upon substantial evidence, “the reviewing
court is required to examine the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d
Cir. 1983). However, the Court is mindful that “it is up to the agency, and not this court, to
weigh the conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118
(2d Cir. 1998). Under any circumstances, if there is substantial evidence in the record to support
the Commissioner’s findings as to any fact, they are conclusive and must be upheld. 42 U.S.C. §
405(g); Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013).
DISCUSSION
I.

Disability Under the Social Security Act
The Act provides that an individual is disabled if he or she is unable “to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). To qualify for Social Security Disability benefits,
the claimed disability must result “from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” Id. § 1382c(a)(3)(D); accord Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).
The Act’s regulations prescribe a five–step analysis for the Commissioner to follow in
determining whether a disability benefit claimant is disabled within the meaning of the Act. See
20 C.F.R. § 404.1520(a); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).

21

First, the Commissioner determines whether the claimant currently is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
If not, the Commissioner proceeds to the second inquiry, which is whether the claimant
suffers from a medical impairment, or combination of impairments, that is “severe,” meaning
that the impairment “significantly limits [claimant’s] physical or mental ability to do basic work
activities.”

If the impairment is not severe, the claimant is not disabled. 20 C.F.R. §

404.1520(a)(4)(ii), (c).
If the impairment is severe, the Commissioner proceeds to the third inquiry, which is
whether the impairment meets or equals one of the impairments listed in Appendix 1 to Subpart
P of Part 404 of the Act’s regulations (the “Listings”). If so, the claimant is presumed disabled
and entitled to benefits. 20 C.F.R. § 404.1520(a)(4) (iii).
If not, the Commissioner proceeds to the fourth inquiry, which is whether, despite
claimant’s severe impairment, he has the “residual functional capacity” (“RFC”) to perform past
work. 20 C.F.R. § 404.1520(a)(4)(iv). In determining a claimant’s RFC, the Commissioner
considers all medically determinable impairments, even those that are not “severe.” 20 C.F.R. §
404.1545(a). If the claimant’s RFC is such that s/he can still perform past work, the claimant is
not disabled.
If the claimant cannot perform past work, the Commissioner proceeds to the fifth and
final inquiry, which is whether, in light of the claimant’s RFC, age, education, and work
experience, the claimant has the capacity to perform other substantial gainful work which exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant has such capacity, the
claimant is not disabled. If not, the claimant is disabled and entitled to benefits. Id.

22

The claimant bears the burden of proving his case at steps one through four; at step five,
the burden shifts to the Commissioner to establish that there is substantial gainful work in the
national economy that the claimant could perform. Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.
2004).
II.

The ALJ’s Decision
Plaintiff applied for disability insurance benefits on August 9, 2010, alleging disability as

of June 21, 2010, due to spinal disease, left knee injury, and post–traumatic stress. (Tr. 98–103,
117.) The application was denied. (Tr. 45, 48–53, 54–59.) Plaintiff then requested a hearing.
(Tr. 60.) He appeared, represented by counsel, before ALJ Patrick Kilgannon on December 13,
2011. (Tr. 26–44.) By decision dated February 23, 2012, ALJ Kilgannon found that Plaintiff
was not disabled. (Tr. 9–25.)
After initially determining that Plaintiff has not engaged in substantial gainful activity
since the alleged disability onset date, the ALJ found that Plaintiff had the following severe
impairments: obesity, left knee disorder, low back disorder, and depression. (Tr. 14.) The ALJ
then concluded that these impairments or their combination did not meet or medically equal the
severity in one of the impairments in the Listings. (Id. (citing 20 C.F.R. §§ 404.1520(d),
404.1525, and 404.1526).) Turning to Plaintiff’s RFC, the ALJ assessed Plaintiff as having the
RFC to perform sedentary work. 5 (Tr. 16.) Specifically, the ALJ found that Plaintiff “can sit for
6 hours and stand for 2 hours with normal breaks during an 8–hour workday,” could frequently
“push and pull with his lower extremities” and occasionally climb ramps or stairs, balance,

5

Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567(a). Sedentary
work also requires that an individual be able to stand and walk for a total of approximately two
hours, as well as sit for up to six hours, during an eight–hour workday, with normal breaks.
Social Security Ruling 96–9p; see 20 C.F.R. § 404.1567(a).
23

stoop, kneel, crouch, and crawl.

(Id.)

He could not climb ladders, ropes, or scaffolds.

Additionally, Plaintiff was limited to working in a low stress environment (defined as involving
only occasional decision making and occasional changes in the work setting). (Id.) Since the
ALJ found that Plaintiff was unable to perform his past relevant heavy work as a plumber, the
ALJ proceeded to step five of the sequential evaluation process. (Tr. 19.) The ALJ considered
Plaintiff’s RFC, and vocational factors of age, education, and past work experience, and
concluded that Plaintiff could perform work that exists in significant numbers in the national and
local economies, and, thus, found Plaintiff not disabled. (Tr. 19–21.)
The ALJ’s decision became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for review on April 24, 2013. (Tr. 1–5.) This action followed.
III.

The ALJ Failed to Comply with the Treating Physician Rule
“Regardless of its source,” Social Security regulations require that “every medical

opinion” in the administrative record be evaluated when determining whether a claimant is
disabled under the Act. 20 C.F.R. §§ 404.1527(d), 416.927(d). “Acceptable medical sources”
that can provide evidence to establish an impairment include, inter alia, Plaintiff’s licensed
treating physicians and licensed or certified treating psychologists.

See 20 C.F.R. §§

404.1513(a), 416.913(a).
Social Security regulations require that the ALJ give “controlling weight” to the medical
opinion of an applicant’s treating physician so long as the opinion is (1) “well–supported by
medically acceptable clinical and laboratory diagnostic techniques” and (2) is not inconsistent
with the other substantial evidence in [the] case record.” Lucas v. Barnhart, 160 Fed App’x 69,
71 (2d Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)); see also Rosa v. Callahan, 168 F.3d 72,
78–79 (2d Cir. 1999).

Medically acceptable clinical and laboratory diagnostic techniques

24

include consideration of a “patient’s report of complaints, or history, [a]s an essential diagnostic
tool.” Green–Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir.2003) (citation omitted).
It bears emphasis that “not all expert opinions rise to the level of evidence that is
sufficiently substantial to undermine the opinion of the treating physician.” Correale–Englehart
v. Astrue, 687 F. Supp. 2d 396, 427 (S.D.N.Y. 2010). The preference for a treating physician’s
opinion is generally justified because “[such] sources are likely to be [from] the medical
professionals most able to provide a detailed, longitudinal picture of [the Plaintiff’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical evidence alone or from reports of individual examinations.”
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). By the same token, the opinion of a consultative
physician, “who only examined a Plaintiff once, should not be accorded the same weight as the
opinion of [a] Plaintiff’s treating [physician].” Anderson v. Astrue, 07 CV 4969, 2009 WL
2824584, at *9 (E.D.N.Y. Aug. 28, 2009) (citing Spielberg v. Barnhart, 367 F.Supp.2d 276,
282–83 (E.D.N.Y.2005)). This is because “consultative exams are often brief, are generally
performed without the benefit or review of claimant’s medical history and, at best, only give a
glimpse of the claimant on a single day.” Id. (quoting Cruz v. Sullivan, 912 F.2d 8, 13 (2d
Cir.1990)).

In addition, opinions of consulting physicians—whether examining or non–

examining—are entitled to relatively little weight where there is strong evidence of disability on
the record, or in cases in which the consultant did not have a complete record. Correale–
Englehart, 687 F. Supp. 2d at 427.
Pursuant to the ALJ’s duty to develop the administrative record, an ALJ “cannot reject a
treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative
record.” Rosa, 168 F.3d at 79 (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (“[E]ven

25

if the clinical findings were inadequate, it was the ALJ’s duty to seek additional information
from [the treating physician] sua sponte.”)). Thus, “if a physician’s report is believed to be
insufficiently explained, lacking in support, or inconsistent with the physician’s other reports, the
ALJ must seek clarification and additional information from the physician, as needed, to fill any
clear gaps before rejecting the doctor’s opinion.” Correale–Englehart, 687 F. Supp. 2d at 428.
If the ALJ did not afford “controlling weight” to opinions from treating physicians, he
needed to consider the following factors: (1) “the frequency of examination and the length,
nature and extent of the treatment relationship;” (2) “the evidence in support of the opinion:” and
(3) “the opinion’s consistency with the record as a whole;” and (4) whether the opinion is from a
specialist.” Clark, 143 F.3d at 188; accord Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
Furthermore, when a treating physician’s opinions are repudiated, the ALJ must
“comprehensively set forth [his or her] reasons for the weight assigned to a treating physician’s
opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam); see Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999); 20 C.F.R. § 404.1527(d)(2) (stating that the Social Security
agency “will always give good reasons in [its] notice of determination or decision for the weight
[given to a] treating source’s opinion”) (emphasis added). “The failure to provide ‘good reasons’
for not crediting a treating source’s opinion is ground for remand.” See Burgin v. Astrue, 348 F.
App’x 646, 648 (2d Cir. 2009) (quoting Halloran, 362 F.3d at 33 (stating that the Second Circuit
will “not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician’s opinion and . . . will continue remanding when [the Second
Circuit] encounter[s] opinions from ALJs that do not comprehensively set forth reasons for the
weight assigned to a treating physician’s opinion.” (changes in original omitted))).

26

The ALJ incorrectly applied these principles in this case. As described below, the
Plaintiff’s treating physicians provided treatment history supported with medical documentation
that diagnosed Plaintiff with mental impairments, as well as physical limitations in his left knee
and lumbar spine. The ALJ rejected or failed to consider key findings of Plaintiff’s treating
sources, and instead relied largely on the opinions of the agency consulting physicians, as well as
an agency psychiatry reviewer. In so doing, the ALJ failed to comply with Social Security
regulations that require him to address the evidence supporting the treating doctors’ opinions,
provide good reasons for why he was rejecting or giving lesser weight to Plaintiff’s treating
sources’ opinions, and adequately develop the record.
A. Plaintiff’s Mental Impairments
Regarding Plaintiff’s mental impairments, the administrative record reflects that Plaintiff
treated by two psychiatrists: (1) Dr. Kharitonova, who treated Plaintiff from December 16, 2009
to August 30, 2010 (Tr. 171–85), and (2) Dr. Shpitalnik, who treated Plaintiff from September 7,
2010 to November 22, 2011 (Tr. 237–241). The ALJ departed from the treating physician rule
by failing to explain whether he gave any weight to Dr. Kharitonova’s opinion and according
only “some weight” to the opinion of Dr. Shpitalnik. Instead, the ALJ assigned “significant
weight” to the opinion of Dr. Jackson, an agency consulting physician who examined Plaintiff
once on October 7, 2010 (Tr. 194–97), and Skranovski, a state agency psychiatry reviewer who
completed a “Psychiatric Review Technique” based on Plaintiff’s files on October 27, 2010 (Tr.
198–211).
At Plaintiff’s initial evaluation on December 16, 2009, Dr. Kharitonova diagnosed
Plaintiff with adjustment disorder with mixed anxiety, alcohol dependency, depressed mood, and
panic disorder without agoraphobia.

She prescribed an antidepressant Lexapro, and

27

recommended psychotherapy. (Tr. 173, 177.) Plaintiff thereafter visited Dr. Kharitonova at least
once a month until a few months after his alleged disability onset date. (Tr. 174–76, 180–83,
185.) Dr. Kharitonova’s observations during these visits consistently reflected anxious mood,
constricted affect, and reduced attention and concentration. On June 9, 2010, Dr. Kharitonova
began prescribing Buspar, an anti–anxiety medication, in addition to Lexapro. (Tr. 181.)
The ALJ improperly departed from the treating physician rule with respect to Dr.
Kharitonova’s opinions. First, the ALJ did not state expressly state what weight, if any, he
ascribed to Dr. Kharitonova’s findings. (See Tr. 18.) This plainly fails to satisfy requirements
governing opinions of treating sources. Second, the ALJ appeared to implicitly reject portions of
Dr. Kharitonova’s opinions without setting forth any reasons for doing so. See Snell, 177 F.3d at
133 (“Failure to provide explicit ‘good reasons’ for not crediting a treating source’s opinion is a
ground for remand.”) The ALJ’s opinion relies on portions of Dr. Kharitinova’s findings that are
consistent with the ALJ’s conclusions (see Tr. 17 (citing to Kharitonova’s reports observing that
Plaintiff did not have delusions, hallucinations, suicidal or homicidal ideations, that his judgment
and insight were consistently rated as fair, and that his thought process was coherent), while
failing to acknowledge other findings that are inconsistent.

Of potential significance for

assessing Plaintiff’s impairments are Dr. Kharitinova’s findings that Plaintiff exhibited reduced
attention and concentration, and recommendations that Plaintiff continue taking prescribed
antianxiety and antidepressant medication. The ALJ’s selective reliance on the medical findings
of a treating source, without providing good reasons for discrediting that source’s other findings,
is clearly erroneous.
The ALJ also failed to satisfy Social Security regulations with regard to Dr. Shpitalnik’s
findings. The only explanation the ALJ gave for assigning “some,” but not controlling, weight to

28

Dr. Shpitalnik’s opinions is that he did not “offer[] an opinion regarding [Plaintiff’s] ability to
perform work related activities.” (Tr. 18.) The ALJ, however, misstates the record, which
included a “Progress Note” dated November 22, 2011 stating that “at the present time the patient
is unable to function in any work setting.” (Tr. 241.) In a February 1, 2011 evaluation, Dr.
Shpitalnik also remarked that “[p]ersistent depression and anxiety affect [Plaintiff’s ability to
concentrate which interferes with his daily activities.” (Tr. 237.) He further indicated that due to
physical pain, Plaintiff “is withdrawn, homebound; he quit almost all of his usual activities.”
(Id.)

While the ultimate determination as to disability rests within the discretion of the

Commissioner, that decision must take into account the findings of a treating source in
determining the nature and severity of the claimant’s impairment and must explain what weight
was given to those findings, or if they were rejected, why. Correale–Englehart, 687 F. Supp. 2d
at 430. Here, the ALJ’s erroneous description of Dr. Shpitalnik’s conclusion and consequent
failure to consider or give controlling weight to his opinion, or provide good reasons for not
doing so, constituted plain error.
Additionally, if an ALJ is not able to fully credit a treating physician’s opinion because
the medical records from the physician are incomplete or do not contain detailed support for the
opinions expressed, the ALJ is obligated to request the missing information from the physician.
Id. at 428. Thus, to the extent the ALJ believed that Dr. Shpitalnik’s opinion was deficient for
not opining on Plaintiff’s ability to perform work–related activities, he was required to “seek
additional evidence or clarification” from the medical source. Calzada v. Asture, 753 F. Supp.
2d 250, 269 (S.D.N.Y. 2010) (citing 20 C.F.R. 404.1512(e)(1)). The need to seek
supplementation is particularly important here, where it appears that there are missing pages at
least from Dr. Shpitalnik’s September 7, 2010 report. (See Tr. 240.) Rather than rejecting Dr.

29

Shpitalnik’s opinion, the ALJ should have assessed the basis for the diagnosis by developing the
record. See Rosa, 168 F.3d at 179 (concluding that it was error for the ALJ to attach significance
to omissions by the treating physician rather than seek more information).
The Court notes that Dr. Shpitalnik’s opinion had a medical basis. Green–Younger, 335
F.3d at 107 (“Medically acceptable clinical and laboratory diagnostic techniques” includes
“physical examinations and diagnostic procedures” and the consideration of Plaintiff’s
“complaints, or [medical] history.”). Prior to rendering his opinions, Dr. Shpitalnik considered
Plaintiff’s complaints and conducted mental status examinations. With respect to cognitive
functions, for example, Dr. Shpitalnik tested Plaintiff’s short–term memory through recall of
objects after a brief interval, and measured his attention and concentration through serial
subtraction and in general conversation. (Tr. 240.) Dr. Shpitalnik found that Plaintiff could only
recall one of three objects after a five minute interval, and that his attention and concentration is
limited. (Id.)
Furthermore, the remaining medical evidence in the record was not substantially
inconsistent with Dr. Shpitalnik’s findings. To the contrary, the ALJ failed to acknowledge or
consider substantial evidence supporting Dr. Shpitalnik’s opinion which, if properly considered,
would have supported application of the treating physician rule and a finding that Plaintiff is
disabled.

The ALJ failed to discuss the substantial consistencies between the findings of

Plaintiff’s treating psychiatrists, both of whom repeatedly observed anxious mood and attention
concentration deficit, as well as prescribed Lexapro and Buspar. (See, e.g., Tr. 177, 238, 241.)
Dr. Shpitalnik’s findings are also largely consistent with those of Dr. Jackson, an agency
consulting psychologist to whom the ALJ gave “significant weight” “because she conducted a
physical examination of the [Plaintiff] in person.” (See Tr. 18.) The ALJ’s opinion, however,

30

omits that Dr. Jackson in fact issued a diagnosis of depressive disorder and anxiety disorder. (Tr.
196–97.)

Dr. Jackson further agreed that Plaintiff should continue with the course of

antidepressant and anti–anxiety medications prescribed by his treating physicians. (Tr. 197.)
Skranovski, the agency’s psychiatry consultant who also was given significant weight by the
ALJ (see Tr. 18), further confirmed a medically determinable impairment in the categories of
affective disorders (Tr. 201), anxiety–related disorders (Tr. 203), and substance addiction
disorders (Tr. 206).
Dr. Jackson’s examination also does not discredit Dr. Shpitalnik’s findings of diminished
short–term memory. Indeed, the ALJ failed to address that Dr. Jackson’s examination similarly
indicated limitations in Plaintiff’s recent memory functions, with the ability to recall only one
out of four objects in five minutes. (Tr. 196). Despite assigning significant weight to Dr.
Jackson’s findings, the ALJ further fails to acknowledge or consider Dr. Jackson’s opinion that
Plaintiff’s statements that he socializes minimally, and does not cook, clean or shop for himself,
take public transportation, or drive “do appear to be consistent” with his “current mental
status[.]” (Id.) In short, the ALJ ignores findings that corroborate Dr. Shpitalnik’s opinion,
instead selectively relying on Dr. Jackson’s report insofar as it supported the ALJ’s conclusion.
The failure to consider this relevant evidence was plain error. See Kane v. Astrue, 942 F. Supp.
2d 301, 312 (E.D.N.Y 2013).
Moreover, even if Dr. Shpitalnik’s opinion conflicts with other medical evidence that
might be considered substantial, the ALJ must still consider various factors to determine how
much weight, if any, to give to that treating doctor’s opinion. See Burgess, 537 F.3d at 129 (the
ALJ must consider, inter alia, the frequency, length, nature, and extent of the treatment
relationship).

31

The ALJ implicitly accorded less weight to the treating source opinions because he relied
on Dr. Jackson’s and Skranovski’s reports to the extent that they were inconsistent with the
findings of Plaintiff’s treating psychiatrists. The ALJ’s perfunctory explanation for his reliance
on the consulting physicians’ opinions, and his rejection of the treating physicians’ evaluations,
cannot withstand judicial scrutiny. See Smollins v. Astrue, 11 CV 424, 2011 WL 3857123, at
*10 (E.D.N.Y. Sept. 1, 2011). The ALJ should have considered that Dr. Jackson only examined
Plaintiff once, and Skranovski rendered an opinion on October 26, 2010 based only on a limited
file review. (Tr. 198; see Tr. 212–13.) In contrast, Dr. Shpitalnik saw Plaintiff at least three
times over the course of a year, and Dr. Khariparov saw Plaintiff at least once a month over a
six–month period before the alleged disability onset date and for a few months following.
Therefore, the treating doctors’ conclusions were based on observations more linked to
Plaintiff’s daily activities than were those of Dr. Jackson and Skranovski, whose one–time
assessments should not have been considered substantial evidence. See Spielberg v. Barnhart,
367 F. Supp. 2d 276, 282–83 (E.D.N.Y. 2005).
Furthermore, it is unclear whether the ALJ sufficiently scrutinized Skranovski’s
qualifications or report. While the record indicates that Dr. Skranovski is qualified in psychiatry,
Plaintiff correctly observes that the ALJ did not note Skranovksi’s profession and may not have
appropriately considered Skranovski’s qualifications in assigning more weight to his opinion
than those of the treating sources. (See Tr. 18.) It also appears that Dr. Skranovski conducted
only a limited review of the file; for instance, it appears that he reviewed Dr. Kharitonova’s, but
not Dr. Shpitalnik’s, reports.

(See Tr. 212.)

Skranovski nonetheless concluded that Dr.

Kharitonova’s documentation lacked credibility because “the treatment notes [were] simple
repeats of the same” and “the provider fail[ed] to perform comprehensive/standard/formal testing

32

of concentration/memory.” (Tr. 210.) Given the significant and largely consistent medical
evidence on the record from treating sources who examined Plaintiff on multiple occasions, as
well as the substantially consistent medical evidence from a non–treating source who examined
Plaintiff, the ALJ’s decision to accord significant weight to Dr. Skranovski’s bare–bones opinion
was erroneous.
B. Plaintiff’s Physical Impairments
The ALJ also failed to properly apply the treating physician rule with respect to
Plaintiff’s physical impairments. In his opinion, the ALJ concluded that the diagnoses,
conclusions, and treatment decisions of Plaintiff’s two treating neurologists, Drs. Stiler and
Nagendra, were not entitled to controlling weight. The ALJ found that the opinion of Dr. Stiler
was entitled to “little weight” because it was inconsistent with the record. The ALJ also chose
not to accept Dr. Stiler’s conclusion that Plaintiff “has a temporary total disability” because that
determination is reserved for the Commissioner. (Tr. 18.) With regard to Dr. Nagendra, the ALJ
afforded only “some weight” to his opinions because he did not offer an opinion regarding
Plaintiff’s work activities. (Id.)
Additionally, the ALJ erred by neglecting to set forth the weight he gave to the opinions
of Dr. Tehrany, an orthopedic surgeon who evaluated Plaintiff on July 27, 2010 and February 3,
2011, and Dr. Fricano, a board certified chiropractic neurologist who examined and treated
Plaintiff on June 29, 2010. (See Tr. 164–65, 159–62, 251.)
The Court finds that the ALJ did not fulfill his duty to develop the administrative record
in connection with Plaintiff’s physical impairments. It appears, for instance, that documents
from Plaintiff’s treatment with Dr. Stiler are missing from the record. (See Tr. 255 (report from
a September 9, 2011 examination indicating that it was a “follow[–]up” on a prior examination;

33

however, the record does not reflect any reports from Dr. Stiler for examinations before or after
the September 9 visit).) Because Dr. Stiler is a treating source, details regarding Plaintiff’s
treatment history with Dr. Stiler, are critical to assessing Plaintiff’s physical impairments. The
ALJ also failed to inquire about records from two physicians referenced in Dr. Stiler’s report—
Dr. Chapman, who Plaintiff was seeing for pain management, and Dr. Frasier, a surgeon who
evaluated Plaintiff. (Tr. 255). Moreover, the ALJ improperly discounted findings from Dr.
Nagendra without first attempting to seek additional information to fill in any gaps in Dr.
Nagendra’s reports. As previously discussed, an ALJ may not discredit a treating source’s
reports on the basis that the report did not offer an opinion regarding Plaintiff’s ability to engage
in work activities. The ALJ instead was obligated to seek clarification from the treating source.
See Rosa, 168 F.3d at 69.
Moreover, the ALJ’s conclusion that Dr. Stiler’s findings are inconsistent with the record
is unsupported by substantial evidence. During an examination on September 9, 2011, Dr. Stiler
noted an increase in pain in Plaintiff’s left knee, and that Plaintiff rated the pain in his knee and
lower back as 8–9, on a scale rating 10 as the worst possible pain. (Tr. 255.) Dr. Stiler found L3
through S1 tenderness with spasm, and range of motion below the normal degree in Plaintiff’s
lumbar spine. (Id.) Dr. Stiler further noted “tenderness in the infrapatellar region on the left
increasing with external rotation and flexion of left knee” along with “antalgic gait.” (Tr. 256.)
Dr. Stiler concluded that Plaintiff required authorization for surgery of the left knee, followed by
rehabilitation, which might resolve problems in Plaintiff’s lower back.

Dr. Stiler further

concluded that due to the alteration in Plaintiff’s gait, his “lumbar symptoms will continue and
get worse” if the pathology in his left knee is not resolved.” (Id.)

34

In assigning little weight to Dr. Stiler’s opinions, the ALJ failed to acknowledge or
consider the significant consistencies between Dr. Stiler’s findings and those of other treating
sources––Drs. Nagendra, Tehrany, and Fricano.

During a June 10, 2010 examination, Dr.

Fricano similarly observed decreased lumbosacral range of motion, as well as compression and
edema in Plaintiff’s left knee. (Tr. 164.) Dr. Fricano issued a diagnosis for cervical, thoracic,
and lumbar disc syndrome, and internal derangement of the left knee, and recommended a course
of physical therapy and chiropractic treatment. (Tr. 164–65.) On July 27, 2010, Dr. Tehrany
evaluated Plaintiff and found tenderness in the left knee. Although Dr. Tehrany found that
Plaintiff exhibited a full range of motion in his knee, she also noted that Plaintiff reported pain,
multiple bouts of swelling, and episodes of knee−locking. She diagnosed internal derangement
of the left knee with possible loose fragment. (Tr. 159.) Thereafter, in February 2011, Dr.
Tehrany requested medical clearance for Plaintiff to undergo surgery to remove a loose body in
his knee. (Tr. 251.) Plaintiff was also treated by Dr. Nagendra once to twice per month from at
least August 2010 to January 2011. (Tr. 227–36.) Dr. Nagendra consistently indicated abnormal
ranges of motion and pain in Plaintiff’s thoracic and lumbar spine, as well as his left knee. (See,
e.g., Tr. 234, 236.) Throughout his treatment of Plaintiff, Dr. Nagendra prescribed Percocet for
pain and recommended physical therapy. (Tr. 228, 233–36.) 6
Nor are Dr. Stiler’s findings are contradicted by Dr. Misra’s September 30, 2010
consulting examination. (Tr. 186). On physical examination, Dr. Misra observed that Plaintiff
walked with a prescribed cane, was not able to do heel walking, toe walking, or squatting. (Tr.

6

Dr. Stiler’s opinions also are consistent with an October 11, 2010 progress report completed by
Dr. Funicelli for the Worker’s Compensation Board. (Tr. 166–67.) Based on his examination of
Plaintiff, Dr. Funicelli diagnosed lumbosacral radicular syndrome and internal derangement of
the knee, and opined that Plaintiff had a 100% temporary impairment and could not return to
work. (Id.)
35

188.) Dr. Misra also found “very restricted” movements in the thoracic/lumbar spine. (Tr. 188,
192.) Dr. Misra observed restriction of movement of the hip and knee joints. (Tr. 188, 192.) As
reflected in range of motion charts from the examination, Plaintiff exhibited a 0–5 degree
flexion–extension in the left knee, well below the normal range of 0–120; a 0–10 flexion–
extension of the lumbar spine, compared to the normal range of 0–90; and lateral flexion of 5
degrees on both sides of the lumbar spine, compared to a normal range of 0–30. (Tr. 191–92.)
Dr. Misra stated a likely diagnosis of disease of diskogenic type in the cervical spine, thoracic
and lumbar spine, and opined that Plaintiff “will not be able to do jobs[] which require prolonged
standing, sitting, walking, bending, climbing, lifting, pulling, or pushing.”

(Tr. 189.) 7

Notwithstanding the consistencies with Dr. Stiler’s findings, the ALJ discounted Dr. Misra’s
findings as entitled to little weight because Dr. Misra did not have access to radiological or
neurological information. (Tr. 18.)
Against the weight of this evidence, the ALJ relied primarily on the opinion of Dr.
Govindraj, a consulting physician who examined Plaintiff on January 19, 2012.

The ALJ

explained that Dr. Govindraj was entitled to significant weight because he had access to
Plaintiff’s records and physically examined Plaintiff. (Tr. 18, 257). Contrary to other physician
findings on the record, Dr. Govindraj found no tenderness and normal range of motion in the
spine, normal range of motion in the back, normal gait, and no need for a cane for ambulation.
(Tr. 259.) Dr. Govindraj concluded that Plaintiff “was medically stable and cleared with no
restriction standing, walking, or lifting weights.” (Tr. 259.) Although Dr. Govindraj noted that
Plaintiff was taking several Percocet tablets a day in addition to his other medications, Dr.

7

Dr. Misra also noted that Plaintiff was driven to the exam by his father, that he could not drive,
could stand for only 15 minutes, and sit for a half hour, and was not capable of lifting or carrying
any weight at the time. (Tr. 187.)
36

Govindraj expressed no opinion regarding the continued use of pain medications in light of his
findings that Plaintiff had virtually no limitations. (Tr. 258). The ALJ nowhere addresses this
issue, nor the inconsistencies between Dr. Govindraj’s findings and that of other physicians. Nor
does he explain why he credits Dr. Govindraj’s findings over those of Drs. Stiler, Nagendra,
Fricano, and Misra. 8 To the extent the ALJ suggests that Dr. Govindraj had access to more
records than Dr. Misra, such a finding is unsupported by the record. The ALJ also fails to
acknowledge or consider that Dr. Govindraj only examined Plaintiff once, compared to
Plaintiff’s follow–up visits with Dr. Stiler and numerous visits with Dr. Nagendra. 9
IV.

Remedy
Accordingly, the Court remands this action, instructing the ALJ to develop the record,

determine whether the opinions of Plaintiff’s treating physicians deserve controlling weight, and
if applicable, articulate reasons for according less than controlling weight to these opinions.
Although Plaintiff’s cross–appeal addresses only the core issue of the ALJ’s
misapplication of the treating physician rule, the Court additionally observes that the failure to
correctly apply that rule may be intertwined with other errors in the ALJ’s determination that
Plaintiff is not disabled under the Social Security Act. For instance, in considering the evidence,
the ALJ failed to meaningfully consider the combined effect of Plaintiff’s mental impairments,
8

Given Dr. Stiler’s findings regarding Plaintiff’s pain in his left knee, Dr. Govindraj’s
determination that Plaintiff exhibited normal ranges of motion, after he began taking Percocet,
was not necessarily inconsistent with Dr. Stiler’s findings of disability. See Zubizarreta v.
Astrue, 08 CV 2723, 2010 WL 2539684, at *6 (E.D.N.Y. June 16, 2010).
9

Several treating physicians are referenced in Dr. Govindraj’s report, including Dr. Chapman,
who is also referenced in Dr. Stiler’s report. Additionally, Dr. Govindraj mentions Dr. Junicelli,
a chiropractor; Dr. Shary, a neurologist; and Dr. Mani, Plaintiff’s primary care physician. (Tr.
257–58.) The administrative record, however, does not contain the reports of any of these other
doctors. The absence of these reports further suggests that Plaintiff’s medical record was not
adequately developed during the administrative review process.
37

i.e., anxiety, short–term memory impairments, and concentration deficits, as found by his
treating and examining physicians.

See 20 C.F.R. § 404.1520(a)(4)(ii), (c) (requiring a

determination of whether the claimant suffers from a medical impairment, or combination of
impairments, that is “severe”). Thus, on remand, the ALJ should also consider the effects of
Plaintiff’s combined mental impairments in every step of the five–step sequential analysis.
After developing the record and according the appropriate weight to the various medical
sources on the record, the ALJ should additionally reassess Plaintiff’s credibility with reference
to the factors listed in 20 C.F.R. § 404.1529(c)(3)(i)–(vii). To the extent the ALJ discredits
Plaintiff’s statements concerning his pain or the intensity, persistence and limiting effects of his
impairments, the ALJ should indicate how he assessed and balanced the various factors. 10
Lastly, the ALJ should adequately develop the record with respect to, and explain the
bases for, his RFC assessment. Among the information that the ALJ is required to obtain from a
treating source at stage five of the analysis is “a statement of what [the claimant] can still do
despite [her] impairment(s) based on her acceptable medical sources’ findings on her factors
under paragraphs (b)(1) through (b)(5) of this section.” 20 C.F.R. § 404.1513(b)(6). The ALJ
must also adequately explain the reasoning underlying an RFC determination and the basis on
which it rests. See, e.g., Correale–Englehart, 687 F. Supp. 2d at 440 (citing cases). 11

10

In his written decision, the ALJ noted that “contrary to . . . [Plaintiff’s] alleged physical
condition,” the ALJ “observed that [Plaintiff] was able to sit throughout the entire [video]
hearing without having to take a break or move into different positions.” (Tr. 18.) However, the
Second Circuit has rejected the propriety of subjecting claimants to a “sit and squirm index.”
Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981).
11

The Court observes that absence of medical evidence regarding whether Plaintiff can sit for six
hours and stand for two hours in an eight–hour work day, perform frequent pushing or pulling
with his lower extremities, or maintain concentration to perform sedentary work renders the
ALJ’s RFC current analysis unsupported by the evidence. Indeed, evidence on the record
appears to support an alternate conclusion that Plaintiff cannot perform sedentary work.
38

CONCLUSION
For the reasons set forth above, the Court DENIES the Commissioner’s motion for
judgment on the pleadings and GRANTS Bracco’s cross-motion. The Commissioner’s decision
is remanded for further consideration and new findings consistent with this Memorandum &
Order. The Clerk of Court is respectfully requested to enter judgment accordingly.

SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: March 31, 2015
Brooklyn, New York

Additionally, the ALJ’s finding that Plaintiff has sufficient concentration, based on a purported
ability to drive, is inconsistent with much of the evidence on the record.
39