Miah v. Colvin
MEMORANDUM AND ORDER denying 17 Motion for Judgment on the Pleadings; granting 19 Motion for Judgment on the Pleadings: For the reasons stated in the attached Memorandum and Order, the Commissioner's motion for judgment on the pleadings i s DENIED, Miah's motion for judgment on the pleadings is GRANTED, and the matter is REMANDED to the Commissioner for further proceedings consistent with this opinion. Plaintiffs request for attorneys fees pursuant to the Equal Access to Justice Actis DENIED without prejudice. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case. Ordered by Judge Roslynn R. Mauskopf on 3/29/2016. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
- against CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Shahin Miah, a retired New York City police officer, applied to the
Commissioner of Social Security (“Commissioner”) for disability insurance benefits, claiming to
suffer from various knee complications. The Commissioner denied his claim on the ground that
he was not disabled according to Social Security Administration (“SSA”) regulations, a finding
that was affirmed by an Administrative Law Judge (“ALJ”). On May 1, 2014, Miah filed a
complaint alleging that his claim was improperly denied, after which Miah and the
Commissioner cross-moved for judgment on the pleadings. Because the Court finds that the ALJ
improperly considered the medical evidence and failed to resolve a potential contradiction in the
record, the Court reverses the denial of disability benefits and remands this case for further
A. Non-Medical Evidence
Miah was born in 1976. (See Admin. R. (Doc. No. 16) at 53.) He completed two years
of college in 1996. (Id. at 189.) Miah then worked as a waiter until becoming a police cadet in
July 2002. (Id. at 53–54, 189.) Miah subsequently became a police officer and, after an injury,
went on light duty in 2010. (Id. at 54, 58–59, 369.) At his hearing, Miah testified that his light
duty work involved answered phones in the medical division until he stopped working on
October 18, 2011 due to pain. (Id. at 59–60, 64.)
Miah testified that he recently moved in with his cousin to a third-floor walk-up. (Id. at
52, 63.) Miah stated that he spends his days at home and that his cousin does most of the
housework and cooking. (Id. at 61–62.) He further stated that he makes his own breakfast and
socializes with friends on the weekends. (Id. at 62–63, 70–71.) Miah testified that he leaves his
house two or three times per day, and that he can walk two to three blocks before experiencing
pain. (Id. at 63–64.) He first testified that he does not have difficulty sitting, but later remarked
that he has pain after sitting for twenty or thirty minutes. (Id. at 63, 69.) Miah testified that there
was no position in which he is pain-free and that his pain medication does not completely relieve
his pain. (Id. at 70.)
B. Medical Evidence
i. Miah’s Initial Knee Injury and Surgery
On July 18, 2009, Miah injured his left knee while pursuing a fleeing suspect at work.
(Id. at 59, 63, 360–62, 365.) Shortly after, Miah went to the Roosevelt Hospital emergency
room, complaining of knee pain and swelling. (Id. at 334.) There, he reported hitting his knee
on a wall during the chase. (Id.) Examination of the knee revealed medial and lateral joint line
tenderness, patellar tenderness, clicking, and contusion. (Id. at 335.) X-rays showed
suprapatellar effusion, but no fracture or dislocation. (Id. at 338–39.) Miah was given Motrin
and NSAIDs. (Id. at 333.) Upon discharge, he was advised that he could return to work. (Id. at
On July 24, 2009, Miah underwent an MRI of his left knee. (Id. at 365.) The MRI
revealed joint effusion; bone bruising; and at least a partial, and possibly a complete, tear of
Miah’s left anterior cruciate ligament (“ACL”). (Id.)
On August 17, 2009, Miah had an initial consult with Dr. Howard Levy, M.D., an
orthopedic surgeon. (Id. at 284–85.) Miah complained of pain and instability in his left knee
due to his torn ACL. (Id. at 284.) On examination, Dr. Levy found full range of motion, mild
effusion, and tenderness in Miah’s knee. (Id.) X-rays that day were normal, but Dr. Levy
confirmed that MRI images showed effusion, chondromalacia, and a complete tear of the ACL
associated with bone bruising. (Id.) Dr. Levy recommended surgery to repair the ACL, which
would allow Miah to return to full duty as a police officer after six months. (Id. at 285.) Dr.
Levy prescribed physical therapy before the surgery. (Id. at 377–79.) On October 1, 2009, Dr.
Levy performed left knee ACL reconstruction on Miah. (Id. at 267–69.)
ii. Miah’s Second Knee Injury and Post-Operative Care
On October 9, 2009, at Miah’s first postsurgical visit, he reported falling down a flight of
stairs at home and banging his knee the previous night. (Id. at 282.) Dr. Levy observed that the
ACL graft site was stable, and x-rays did not show any new fractures. (Id.) Dr. Levy
recommended rest and prescribed Percocet. (Id.)
On October 14, 2009, Dr. Levy removed Miah’s sutures and noted that there might be a
fracture of the patella at the harvest site. (Id. at 281.) X-rays showed decreased swelling and
confirmed a fracture at the harvest site on the patella. (Id. at 281, 303.) Dr. Levy recommended
that Miah begin exercising his knee at home, but he deferred physical therapy. (Id. at 281.) On
October 28, 2009, Miah returned to Dr. Levy, reporting decreased pain. (Id. at 280.) Miah
began physical therapy the following day. (Id. at 355–56.)
On November 18, 2009, Miah returned to Dr. Levy. (Id. at 279.) Dr. Levy noted that
Miah was improving, but had some difficulty walking. (Id.) X-rays showed no further
displacement of the patella. (Id. at 279.) Dr. Levy ordered an ACL function brace to support
and protect Miah’s knee. (Id.) On December 21, 2009, Miah returned to Dr. Levy. (Id. at 278.)
Dr. Levy noted that Miah had a good range of motion but that he was exhibiting quadriceps
weakness. (Id.) Dr. Levy prescribed continuing physical therapy, three times per week, and
recommended that Miah ride the stationary bike at the gym on alternate days. (Id.)
On January 20, 2010, Miah returned to Dr. Levy. (Id. at 277.) Miah reported that he had
returned to work on light duty. (Id.) He stated that his range of motion and strength were
improving, but that he still had significant pain around his patella that worsened with climbing
stairs and standing for long periods. (Id.) On examination, there was mild effusion, significant
weakness of the quadriceps, and tenderness at the inferior patellar pole. (Id.) Miah’s ACL was
stable and he could fully extend his knee. (Id.) Dr. Levy diagnosed post left knee ACL
reconstruction with intact ACL graft, and patellofemoral syndrome that was hindering progress.
(Id.) He recommended continuing physical therapy, icing the knee, Advil as needed, and using a
knee sleeve for ambulation and stair climbing. (Id.) Dr. Levy also prescribed Percocet to take
while at physical therapy. (Id.)
On February 22, 2010, Miah returned to Dr. Levy. (Id. at 276.) Dr. Levy noted that
Miah had a full range of motion and that his ACL was stable. (Id.) Miah reported that he still
had pain around his patella and quadriceps weakness. (Id.) Dr. Levy observed crepitus and
patellar pole tenderness. (Id.) X-rays revealed good alignment of the patella and the ACL bone
tunnels. (Id. at 276, 296.) Dr. Levy’s diagnosis and treatment recommendation remained
unchanged. (Id. at 276.)
On February 23, 2010, Murtain Haskin, M.D., City of New York Police Department
(“NYPD”) District Surgeon, completed a memorandum, detailing that Miah had been on
restricted duty since February 22, 2010, and that he continued to experience chronic pain in his
left knee. (Id. at 346.) Dr. Haskin stated that it was unlikely that Miah would be able to assume
the full duties of a police officer and that his case should be referred for survey consideration.
On April 19, 2010, Miah returned to Dr. Levy, reporting problems in his right knee. (Id.
at 275.) Examination of the right knee revealed patellofemoral crepitus, pain at the infrapatellar
tendon, but no joint line pain or instability. (Id.) Examination of the left knee revealed an intact
ACL, no joint line pain, some quadriceps weakness, and patellofemoral crepitus. (Id.) X-rays of
both knees did not reveal any obvious acute abnormalities. (Id.) Dr. Levy diagnosed intact ACL
reconstruction and bilateral knee patellofemoral syndrome. (Id.) He recommended that Miah
continue physical therapy, maintain a low impact exercise program, and stay on desk duty at
On June 16, 2010, Miah returned to Dr. Levy, reporting significant knee pain that
prevented him from building strength. (Id. at 274.) Examination showed tenderness in the
infrapatellar tendon and quadriceps weakness. (Id.) Dr. Levy diagnosed left knee ACL
reconstruction with residual pain and right knee patellofemoral syndrome. (Id.) He prescribed
continuing physical therapy and ordered an MRI. (Id.) The MRI, completed the same day and
reviewed on June 23, 2010, showed findings indicative of residual post-fracture deformity or
incomplete fracture, possibly related to patellar tendon graft harvesting; soft tissue thickening,
related to either mild degenerative fraying or evolving arthrofibrosis; and mild stress-related
edema. (Id. at 273, 286–87.) The ACL graft was intact. (Id. at 287.) After reviewing the MRI,
Dr. Levy informed Miah that his persistent left knee pain was likely secondary to his
postoperative fall and stress fracture in the patella, which was aligned and basically healed. (Id.
at 273.) Dr. Levy recommended continuing conservative treatment with physical therapy, ice,
anti-inflammatory medication, and a home exercise program. (Id.) Dr. Levy indicated that he
expected the pain to resolve and that Miah should remain on light duty. (Id. at 273, 383.)
On August 18, 2010, Miah returned to Dr. Levy, reporting difficulty and pain when
climbing stairs and running. (Id. at 272.) Examination revealed significant weakness in the
quadriceps and tenderness along the medial and lateral patellar facets and the patellar tendon.
(Id.) The ACL was stable. (Id.) Dr. Levy administered Dexamethasone and Lidocaine
injections into Miah’s left knee joint, and told him to continue physical therapy and a home
exercise program for quadriceps strengthening. (Id.) Dr. Levy instructed Miah to stay home for
a few days due to the injection and then resume his desk job. (Id.) He noted that Miah had
patellofemoral syndrome in his right knee from compensating for his left knee, and he advised
Miah to balance his gait pattern and use ice and anti-inflammatory medication. (Id.)
On September 22, 2010, Miah returned to Dr. Levy, complaining of “extreme” pain. (Id.
at 271.) Dr. Levy recommended arthroscopy to shave down scar tissue and assess the articular
cartilage. (Id.) He provided a note stating that Miah was able to return to work on desk duty
only. (Id. at 391.)
On October 27, 2010, Miah returned to Dr. Levy. (Id. at 270.) On examination, Miah
had full range of motion in his left knee and his ACL was stable. (Id.) There was patellofemoral
crepitus, pain, and weakness of the quadriceps. (Id.) The right knee exhibited some tenderness.
(Id.) Dr. Levy noted that the fracture Miah sustained shortly after surgery had significantly
changed the course of his progress and would cause future knee problems. (Id.) He informed
Miah that he would not be able to return to full duty as a police officer due to the weakness,
deficits, and pain in his left knee. (Id.) Again, Dr. Levy provided a note stating that Miah was
able to return to work on desk duty only. (Id. at 380.)
On November 5, 2010, Miah sought a second opinion from Joseph Bosco, M.D., whom
he had previously seen shortly after his initial knee injury. (Id. at 341.) Miah related his medical
history, and Dr. Bosco told him that anterior knee pain, like that which he was experiencing, was
common after ACL reconstruction, especially after using a bone-patellar autograft. (Id.) He
stated that arthroscopy was occasionally helpful and that it “was very unlikely it would get better
on its own.” (Id.) Dr. Bosco declined to treat Miah and told him to return to the physician who
did the initial surgery. (Id.)
On January 19, 2011, Miah returned to Dr. Levy. (Id. at 266.) Examination revealed left
knee tenderness, quadriceps weakness, and crepitus. (Id.) Dr. Levy diagnosed left knee intact
ACL reconstruction, left knee patellofemoral syndrome secondary to postoperative fracture
significantly hindering progress and causing pain and weakness, and right knee patellofemoral
syndrome. (Id.) He recommended that Miah continue with physical therapy and provided a note
stating that Miah could return to work on desk duty only. (Id. at 266, 381.)
On April 4, 2011, Miah returned to Dr. Levy, reporting little improvement from physical
therapy. (Id. at 265.) Dr. Levy prescribed continuing physical therapy. (Id. at 390.) Miah
returned to Dr. Levy on June 22, July 18, August 1, and August 10, reporting similar complaints.
(Id. at 261–64.) On June 22, Dr. Levy noted that it was his opinion that Miah should retire from
the police force and go on permanent disability. (Id. at 264.) On July 18, August 1, and August
10, Dr. Levy administered Synvisc injections into Miah’s left knee. (Id. at 261–63.)
On August 8, 2011, Miah was examined by the NYPD Medical Board. (Id. at 365–70.)
The Medical Board concluded that there were significant orthopedic findings that precluded
Miah from performing the full duties of a police officer, and recommended approval of accident
disability retirement. (Id. at 370.) Miah remained employed at his NYPD desk job until October
18, 2011. (Id. at 63.) He alleges in the instant complaint that he has been disabled since October
12, 2011. (Compl. (Doc. No. 1) at ¶ 6.)
iii. Medical Evidence After the Alleged Onset Date, October 12, 2011
On February 15, 2012, Miah returned to Dr. Levy for the first time since August 2011
when he received the Synvisc injections, which he reported had not provided much relief. (Id. at
375.) Miah reported that he had been doing home exercises and that his condition was
unchanged. (Id.) He still had significant pain around his patella with associated quadriceps
weakness. (Id.) Dr. Levy noted that Miah’s ACL was stable. (Id.) He also noted that Miah had
come for evaluation because he was applying for social security disability. (Id.) Dr. Levy
recorded no examination findings. (Id.) He stated that Miah had chronic knee pain and was
unable to perform any occupation due to persistent pain when sitting for long periods of time,
standing for long periods of time, and climbing up and down stairs. (Id.)
On May 9, 2012, Miah returned to Dr. Levy, complaining about his ongoing knee pain.
(Id. at 374.) However, Dr. Levy did not recommend any treatment and made no diagnostic
findings except that Miah’s ACL was stable. (Id.) On July 11, 2012, Dr. Levy completed and
signed a Treating Doctor’s Patient Functional Assesment To Do Sedentary Work form,
indicating that Miah could stand or walk for less than two hours per eight-hour work day, sit for
fewer than four hours, and lift and/or carry more than ten pounds for up to two-thirds of the day.
(Id. at 372–73.)
iv. Miah’s Consultative Examination
On March 16, 2012, Dr. Chaim Shtock, D.O., performed a consultative orthopedic
examination on Miah. (Id. at 319–25.) Dr. Shtock reported that Miah could cook, clean, do
laundry, and shop, “sometimes having help from his brother.” (Id. at 319–20.) Dr. Shtock also
reported that Miah watched television, went out, and socialized with friends. (Id. at 320.) Dr.
Shtock’s clinical diagnosis contained findings that Miah had “moderate limitation[s] with heavy
lifting, squatting, kneeling, and crouching.” (Id. at 321.) Additionally, Dr. Shtock found that
Miah had moderate limitations walking long distances and standing or sitting for long periods.
(Id.) Dr. Shtock found no limitation in overhead activities, frequent bending, or manual
activities requiring use of Miah’s hands, and found “no other physical functional deficits.” (Id.)
On December 30, 2011, Miah applied for Social Security disability insurance benefits,
claiming that he had been disabled since October 12, 2011 with a torn left ACL and various knee
complications sustained after falling down in his bathroom. (Compl. at ¶ 6; see also Admin. R.
at 164.) The Commissioner denied his application on March 28, 2012. (Compl. at ¶ 7.) Miah
then requested a hearing, which was held before ALJ Wallace Tannenbaum on August 24, 2012.
(Id. at ¶ 9.) The ALJ found that Miah was not disabled and denied him benefits. (Id. at ¶ 10.)
The ALJ’s decision was finalized on March 5, 2014, when the Appeals Council declined Miah’s
request to review the matter. (Id. at ¶ 12.) Miah then requested review from this Court pursuant
to 42 U.S.C. § 405(g), alleging that the ALJ’s decision was not supported by substantial evidence
and was contrary to law. (Id. at ¶ 13.)
Standard of Review
A. Review of a Denial of Social Security Benefits
In reviewing the final determination of the Commissioner, a court does not make an
independent determination about whether a claimant is disabled. See Schaal v. Apfel, 134 F.3d
496, 501 (2d Cir. 1998). Instead, the Court “may set aside the Commissioner’s determination
that a claimant is not disabled only if the [ALJ’s] factual findings are not supported by
‘substantial evidence’ or if the decision is based on legal error.” Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). “‘[S]ubstantial evidence’ is ‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency’s findings were supported by substantial evidence,
the reviewing court is required to examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be drawn.” Id. (internal quotation marks
omitted). “If there is substantial evidence in the record to support the Commissioner’s factual
findings, they are conclusive and must be upheld.” Stemmerman v. Colvin, No. 13-CV-241
(SLT), 2014 WL 4161964, at *6 (E.D.N.Y. Aug. 19, 2014) (citing 42 U.S.C. § 405(g)). “This
deferential standard of review does not apply, however, to the ALJ’s legal conclusions.”
Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 342 (E.D.N.Y. 2010). Rather, “[w]here an
error of law has been made that might have affected the disposition of the case, [an ALJ’s]
failure to apply the correct legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d
183, 189 (2d Cir. 2004) (internal quotation marks omitted).
B. Eligibility for Disability Benefits
To be eligible for disability insurance benefits, a claimant must show that he or she 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). Furthermore, the claimant’s “physical or mental impairment or impairments [must
be] of such severity that he is not only unable to do his previous work, but cannot, considering
his age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Under this framework, the SSA’s regulations require a five-step analysis for determining
whether a claimant is disabled:
(1) First, the Commissioner considers whether the claimant is currently engaged
in substantial gainful activity.
(2) If he is not, the Commissioner next considers whether the claimant has a
“severe impairment” which significantly limits his physical or mental ability
to do basic work activities.
(3) If the claimant suffers such an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an impairment, the
Commissioner will consider him [per se] disabled.
(4) Assuming the claimant does not have a listed impairment, the fourth inquiry is
whether, despite the claimant’s severe impairment, he has the residual
functional capacity to perform his past work.
(5) Finally, if the claimant is unable to perform his past work, the Commissioner
then determines whether there is other work which the claimant could
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (alteration in original); see 20 C.F.R. §§
404.1520, 416.920. At the fourth step, in which the ALJ evaluates the claimant’s residual
functional capacity (“RFC”), the ALJ must base his assessment “on all relevant medical and
other evidence, such as physical abilities, mental abilities, and symptomology, including
[subjective complaints of] pain and other limitations that could interfere with work activities on a
regular and continuing basis.” Castillo v. Colvin, No. 13-CV-5089 (AT) (MHD), 2015 WL
153412, at *11 (S.D.N.Y. Jan. 8, 2015) (citing 20 C.F.R. § 1545(a)(1)-(3)). The claimant bears
the burden of proof in the first four steps of the inquiry, but the burden shifts to the
Commissioner for the last step. See Talavera, 697 F.3d at 151.
The parties do not dispute the ALJ’s proper application of steps (1)–(3) of the five-part
inquiry mentioned above. The Court therefore focuses on step (4) to determine whether the ALJ
erred in determining Miah’s RFC.
A. Treating Physician Rule
The Court first considers whether the ALJ’s decision is “supported by ‘substantial
evidence.’” Shaw, 221 F.3d at 131 (quoting 42 U.S.C. § 405(g)). Notably, “[t]he law gives
special evidentiary weight to the opinion of the treating physician.” Clark v. Comm’r of Soc.
Sec., 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the “treating physician rule” provides that:
Generally, [the SSA] give[s] more weight to opinions from [a claimant’s] treating
sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c)(2). A treating physician’s opinion on the “nature and severity” of the
plaintiff’s impairments is generally given “controlling weight,” unless the opinion is either (1)
not “well-supported by medically accepted clinical and laboratory diagnostic techniques . . . [or
(2)] inconsistent with the other substantial evidence in [the plaintiff’s] case record.” Id.; see,
e.g., Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).
If an ALJ declines to assign a treating physician’s opinion controlling weight, “he must
provide ‘good reasons’ for declining to do so, as well as ‘good reasons’ for according those
opinions whatever weight he assigns to them.”1 Castillo, 2015 WL 153412, at *20 (quoting
Clark, 143 F.3d at 118); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always give good
reasons in our notice of determination or decision for the weight we give your treating source’s
opinion.”); see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (“Failure to provide such
good reasons for [declining to credit] the opinion of a claimant’s treating physician is a ground
for remand.”). In doing so, the ALJ must consider:
(i) the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician’s opinion; (iii)
the consistency of the opinion with the record as a whole; (iv) whether the opinion
is from a specialist; and (v) other factors brought to the [SSA’s] attention that tend
to support or contradict the opinion.
Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(c)(2)–(6)). “[W]here an ALJ does not
appear to have taken into consideration the factors required by the treating physician rule, the
Court cannot find that the ALJ’s determination is supported by substantial evidence.” Sanchez v.
Colvin, No. 13-CV-929 (MKB), 2014 WL 4065091, at *12 (E.D.N.Y. Aug. 14, 2014).
Moreover, if the ALJ finds that the treating physician’s report is inadequate, he has a duty to re-contact the
physician for clarification before he disregards it. See § 416.912(e); see also Schaal, 134 F.3d at 505. However,
courts have held that this duty to re-contact is not absolute. See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999) (“[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a
complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a
benefits claim.”); Micheli v. Astrue, No. 10-CV-6655, 2011 WL 4074624, at *6 (W.D.N.Y. Sept. 13, 2011) (finding
that ALJ did not err in failing to re-contact treating physician, despite an internal inconsistency in his opinion, where
ALJ had sufficient evidence and a complete medical history to determine whether plaintiff was disabled and where
he was not unclear as to the bases of the physician’s findings), aff’d 501 F. App’x 26 (2d Cir. 2012).
Here, the ALJ’s cursory discussion2 of his reasons for discounting Dr. Levy’s (treating
physician) opinion in favor of Dr. Shtock’s failed to properly consider the requisite factors.3
This failure constitutes legal error sufficient for remand. See, e.g., Gallagher v. Astrue, No. 10CV-8338, 2012 WL 987505 (LTS)(AJP), at *20 (S.D.N.Y. Mar. 22, 2012) (finding remand
appropriate where there was “no indication in [the ALJ’s] opinion that he considered any of the
other factors in determining what weight” to give the treating physician’s report); Hach v.
Astrue, No. 07-CV-2517, 2010 WL 1169926 (ENV), at *11 (E.D.N.Y. Mar. 23, 2010) (holding
that remand was appropriate where the ALJ found the treating doctor’s opinion “inconsistent”
with the “objective evidence,” but did not address the remaining factors that supported the
doctor’s opinion); Schaal, 134 F.3d at 504 (holding that the ALJ committed legal error by failing
to consider all of the factors cited in the regulations); Larsen v. Astrue, No. 12-CV-414 (CBA),
2013 WL 3759781, at *2 (E.D.N.Y. July 15, 2013) (same).4
In his decision, the ALJ wrote that:
[I assigned] some weight to Dr. Levy’s opinion but not controlling weight since his opinion is
conclusory with little explanation, [his description of Miah’s] functional limitations appear to be . .
. sympathetic, . . . and the opinion is contradicted by the opinion of the consultative examiner
whose opinion is given greater weight. . . . Dr. Levy’s most recent [July 11, 2012 functional]
assessment overstates the claimant’s limitations. This level of severity is inconsistent with the
objective medical evidence, the other opinion evidence, and even the claimant’s own statements
about his activity level. It is important to note that the majority of Dr. Levy’s opinions were
offered without supporting explanations or diagnostic testing results. . . . [On the other hand, Dr.
Shtock’s] opinion is given great weight because it is well supported by medically acceptable
clinical and laboratory findings and is consistent with the record when viewed in its entirety.
(Admin. R. at 46.)
While an ALJ is not required to expressly discuss and analyze each factor, see Atwater v. Astrue, 512 F. App’x 67,
70 (2d Cir. 2013), the ALJ’s limited discussion of the reasons for his decision does not suggest that he sufficiently
considered the factors.
Miah also argues that the ALJ failed to satisfy his duty to affirmatively develop the record by failing to re-contact
Dr. Levy before disregarding his assessment as “conclusory with little explanation.” (Pl. Reply Mem. in Supp. (“Pl.
Reply”) (Doc. No. 22) at 13.) Because the Court finds that the ALJ erred in failing to analyze all of the factors
required to determine what weight to assign Dr. Levy’s and Dr. Shtock’s non-controlling opinions, the Court need
not address whether the ALJ was obligated to re-contact Dr. Levy before disregarding his assessment.
1. The ALJ Failed to Consider the First and Fourth Factors
The ALJ’s opinion does not discuss the frequency, length, or nature of the relationship, or
the extent of the treatment provided by Dr. Levy. “Generally, the longer a treating source has
treated [the plaintiff] and the more times [the plaintiff] has been seen by a treating source, the
more weight [the Commissioner] will give to the source’s medical opinion.” 20 C.F.R. §
404.1527(c)(2)(i). But the ALJ here did not mention, and appeared to give no weight to, the fact
that Dr. Levy had treated Miah twenty-two times between August 2009 and February 2012. (See
Admin. R. at 264–88, 377–78). During that time, Dr. Levy performed Miah’s knee surgery, was
responsible for all of his follow-up examinations, and, at the time of the ALJ’s decision, was still
treating Miah for pain management. (See id.) Still, the ALJ assigned Dr. Shtock’s opinion more
weight even though he only examined Miah once. (See id. at 322–25); see also Selian, 708 F.3d
at 419 (noting that the Second Circuit has “cautioned that ALJs should not rely heavily upon the
findings of consultative physicians after a single examination”).
In failing to mention Dr. Levy’s extensive and continuous relationship with Miah, the
ALJ appeared to disregard that Dr. Levy was “in a unique position to make a complete and
accurate diagnosis.” Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (quoting Mongeur,
722 F.2d at 1039 n.2); see also Sanchez, 2014 WL 4065091, at *12 (remanding where the ALJ
assigned less weight to a treating physician than to a consultative examiner who had only
performed one examination of the claimant).
Moreover, the ALJ appeared to ignore completely the fourth factor of the treating
physician test, as he does not once mention the fact that Dr. Levy was a specialist in ACL
surgeries like the one he performed on Miah. See 20 C.F.R. § 404.1527(c)(5).
2. The ALJ Failed to Consider the Second and Third Factors
The ALJ also failed to identify evidence in the record that supports and corroborates Dr.
Levy’s assessment. In determining whether a claimant has a disability, an ALJ is required to
take into consideration all pertinent medical evidence available to him, and an ALJ’s failure to
do so or explain his rejection of the evidence is plain error. See Kane v. Astrue, 942 F. Supp. 2d
301, 305 (E.D.N.Y. 2013) (remanding where an ALJ discredited the reports of two treating
physicians and failed to provide good reasons for not doing so). Here, the ALJ did not mention
any of the objective medical evidence contained within the notes Dr. Levy compiled before the
alleged onset date of October 12, 2011, which provide crucial context for Dr. Levy’s findings
after Miah’s alleged onset date. See Hilsdorf, 724 F. Supp. 2d at 336 n.2 (“[T]o the extent that
[evidence from an earlier time period], in combination with later evidence from the relevant time
period, bears upon [p]laintiff’s disability status during the relevant period, it must be
considered.”). As the ALJ’s ultimate finding was that Dr. Levy’s opinion was “inconsistent with
the objective medical evidence,” he erred by failing to first consider all of the objective medical
evidence. (Admin. R. at 46.)5
To the extent that the ALJ believed Dr. Levy’s diagnosis indicated a level of severity
“inconsistent with the objective medical evidence, the other opinion evidence,” and Miah’s
testimony regarding his daily activities, the ALJ’s explanation was vague and insufficiently
detailed. (Id.) The ALJ was required to explain specifically which evidence and statements he
believed Dr. Levy’s opinions conflicted with. See, e.g., Kane, 942 F. Supp. 2d at 305
Moreover, by rejecting Dr. Levy’s opinion on the ground that it was “sympathetic” and overstated Miah’s
functional limitations, the ALJ improperly substituted his own judgment for medical opinions. Specifically, the ALJ
inferred that “[a]n individual with the extreme limitations [that Dr. Levy describes] could hardly be expected to get
out of bed, let alone perform the range of daily activities that the claimant has been shown to do on a consistent
basis.” (Admin. R. at 46). This too is a basis for remand. See Burgess, 537 F.3d at 131 (remanding where the ALJ
improperly exercised his discretion to weigh the evidence by “substitute[ing] his own expertise or view of the
medical proof for the treating physician’s opinion”).
(“Although the ALJ need not resolve every conflict in a record, ‘the crucial factors in any
determination must be set forth with sufficient specificity to enable [reviewing courts] to decide
whether [his] determination is supported by substantial evidence.’” (quoting Ferraris v. Heckler,
728 F.2d 582, 587 (2d Cir. 1984)). The ALJ’s failure to do so was legal error, for which remand
is appropriate. See Calzada v. Astrue, 753 F. Supp. 2d 250, 270 (S.D.N.Y. 2010) (“[I]f the ALJ
failed in his duty to fully develop the record . . . a reviewing court should reverse the
Commissioner’s decision and remand the appeal from the Commissioner’s denial of benefits for
further development of the evidence.”); see also Kane, 942 F. Supp. 2d at 305 (“To fulfill this
obligation, the ALJ must . . . adequately explain his reasoning in making the findings on which
his ultimate decision rests.” (internal quotation marks omitted)); Hilsdorf, 724 F. Supp. 2d at
350; Hogue v. Barnhart, No. 03-CV-4963 (SHS), 2005 WL 1036336, at *17 (S.D.N.Y. May 3,
B. Credibility Determination
Miah also argues that the Commissioner improperly evaluated his testimony about his
pain. When making a determination as to a claimant’s RFC, “SSA regulations require the
Commissioner . . . to consider all of a claimant’s symptoms, including subjective complaints of
pain.” Hilsdorf, 724 F. Supp. 2d at 349 (citing 20 C.F.R. § 404.1529(a)). “[S]ymptoms,
including pain, will be determined to diminish [a claimant’s] capacity for basic work activities to
the extent that . . . [they] can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). Accordingly, the SSA regulations
provide a two-step process for evaluating a claimant’s subjective contentions of pain. See id.
§ 404.1529(c). First, the ALJ must determine whether the claimant has a medically determinable
impairment that can reasonably be expected to produce the alleged pain. See id.
§ 404.1529(c)(1). Second, if the claimant is found to have such an impairment, the ALJ must
evaluate the intensity and persistence of those symptoms, considering all of the available
evidence, including the claimant’s own subjective complaints of pain. See id. If the claimant’s
pain contentions are not substantiated by objective medical evidence, the ALJ must conduct a
credibility inquiry as to the claimant’s contentions. See id. § 404.1529(c)(3)(i)–(vii).
In conducting the credibility inquiry, the ALJ must consider the following factors: (1) the
claimant’s daily activities; (2) the location, duration, frequency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medications taken to alleviate the pain; (5) any treatment, other than medication, that the
claimant has received; (6) any other measures the claimant employs to relieve the pain or other
symptoms; and (7) any other factors concerning the claimant’s functional limitations and
restrictions as a result of the pain. See Kane, 942 F. Supp. 2d at 313 (citing 20 C.F.R. §
404.1529(c)(3)(i)–(vii)). Ultimately, the “ALJ’s credibility determination and decision to
discount a claimant’s subjective complaints of pain are [only] entitled to great deference if [they
are] supported by substantial evidence.” Colon v. Astrue, No. 11-CV-3779 (KAM), 2011 WL
3511060, at *13 (E.D.N.Y. Aug. 20, 2011) (internal quotation marks omitted).
1. The ALJ Failed to Take All Relevant Evidence into Consideration
First, the ALJ found Miah’s contentions only “partially credible” because “[t]he alleged
level of limitation is not reconcilable with the objective medical evidence.” (Admin. R. at 45.)
However, the only objective medical evidence that the ALJ cited to support his conclusion was
the physical examination performed by Dr. Shtock. The ALJ did not mention any of the
examinations performed by Dr. Levy. Because the ALJ’s decision insufficiently considered Dr.
Levy’s medical opinions, his evaluation of Miah’s subjective complaints of pain was not based
on all of the medical evidence, and remand is therefore appropriate for the ALJ to assess Miah’s
subjective complaints in light of a fully developed record. See Colon, 2011 WL 3511060, at *13
(finding that the ALJ’s assessment of plaintiff’s “credibility with respect to his symptoms of pain
was . . . necessarily based on an incomplete record . . . [and therefore remanding] for the ALJ to
assess plaintiff’s complaints of pain in light of a fully developed record”).
2. The ALJ Mischaracterized Miah’s Functional Limitations
Second, the ALJ concluded that Miah’s “allegations regarding his functional limitations
and severity of pain” were inconsistent with his activity level, because “he is able to socialize
with friends, despite his pain[,] . . . cook, clean, do laundry[,] . . . shop,” shower, and dress
himself. (Admin. R. at 45.) However, the ALJ failed to acknowledge Miah’s limitations with
respect to those functional abilities. At his administrative hearing, Miah noted that he feels pain
after “walk[ing] a couple [of] block[s],” and although he socializes with his friends, he indicated
that he does so only to the extent that they gather to sit and converse. (Id. at 66.) In fact, Miah
revealed that he is unable to socialize with friends when they go to parties, because he feels pain
if he “stand[s] [for a] long period of time.” (Id.) In addition, the ALJ failed to acknowledge that,
while Miah is able to “cook,” he makes only his breakfast, and his cousin does most of the
cooking and housework. (Id. at 65.) Moreover, though the ALJ pointed out that Miah “lives on
the third floor . . . [without] an elevator,” he failed to mention that Miah only leaves his
apartment up to three times a day.6
Although neither party raises the issue, the administrative record is unclear as to whether Miah leaves his
apartment two or three times per day or per week. The ALJ first asked Miah how often he left his apartment per
day, to which Miah responded two or three times; however, the ALJ’s follow up question asked if it was fair to say
that he left his apartment two or three times per week, to which Miah replied yes. (See Admin. R. at 66–67.) This
reveals a contradiction in the record that the ALJ should clarify on remand. (See id.); see, e.g., Torres v. Colvin, No.
13-CV-730 (KBF), 2014 WL 406933, at *6 (S.D.N.Y. Feb. 3, 2014) (“Where there are gaps in the administrative
record, remand to the Commissioner for further development of the evidence is in order.” (quoting Sobolewski v.
Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1999)).
The administrative hearing transcript is devoid of evidence showing that Miah could
engage in any of these activities without pain, and “there is nothing to suggest that [Miah] ‘could
engage in any of these activities for sustained periods comparable to those required to hold
[even] a sedentary job.’” See Hilsdorf, 724 F. Supp. 2d at 352 (quoting Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998)). An individual can perform the things that Miah described in his
testimony and “still experience debilitating pain [with] the intensity[,] persistence and . . .
limiting effects he claims.” Larsen, 2013 WL 3759781, at *3. In fact, upon questioning by his
counsel at the hearing, Miah testified that there was no “position that he c[ould] be [in] where he
[was] pain free” and that the pain medication he was taking did not “completely relieve [his]
pain.” (Admin. R. at 73.) The Second Circuit has repeatedly recognized that “[a] claimant need
not be an invalid to be found disabled.” Colon, 2011 WL 3511060, at *14 (quoting Williams v.
Bowen, 859 F.2d 255, 260 (2d. Cir. 1988)). Rather, “[i]f a disabled person ‘gamely chooses to
endure pain in order to pursue important goals . . . it would be a shame to hold this endurance
against him in determining benefits unless his conduct truly showed that he is capable of
working.”7 Id. (quoting Balsamo, 142 F.3d at 81–82). The functional abilities listed above,
taken together, do not “truly show that he is capable of working.” Id. Therefore, upon remand,
the ALJ should consider the limitations on Miah’s functional abilities and ascertain the true
extent of those limitations.
3. The ALJ Failed to Resolve a Contradiction in the Record
Third, the ALJ found that Miah made “inconsistent statements pertaining to his ability to
sit, which “further diminish[ed] the credibility of his allegations.” (Admin. R. at 46.) In his
Even if the ALJ had considered Miah’s actual performance of desk duty until October 2011 as evidence that Miah
is truly capable of working, the ALJ failed to inquire further as to whether Miah was doing so under any degree of
pain. Notably, Dr. Levy’s reports from July 2010 to October 2011 indicate that Miah was in an extreme amount of
pain. (See Admin. R. at 264–80.)
analysis of Miah’s testimony, the ALJ acknowledged that Miah “has pain even while sitting[,]
[that] [h]e can sit for about a half an hour before he starts having pain in his knee[,] . . . [and]
there is no position that relieves his pain.” (Id. at 45.) However, he then concluded that Miah’s
testimony at the administrative hearing was not credible because Miah first stated that he had no
difficulty in sitting, but later stated that he felt pain after sitting for twenty to thirty minutes.
(Compare id. at 66, with id. at 72.)8 But these statements are easily reconcilable. It is certainly
possible that Miah would feel no pain during the act of sitting down, but would feel pain after
twenty minutes of continuous sitting.
Even if the statements were mutually exclusive, the ALJ had a duty to clarify the
inconsistency to discern the true extent of Miah’s pain. See Colon, 2011 WL 3511060, at *12
(“It is well-established that the ALJ has an affirmative obligation to develop the administrative
record where gaps exist, particularly when ‘further findings would help to assure the proper
disposition of the claim.’” (quoting Butts v. Barnhart, 388 F.3d 277, 385 (2d Cir. 2004)); see
also Hankerson v. Harris, 636 F.2d 893, 895–96 (2d Cir. 1980) (“[W]here the medical record
contain[s] a number of references to plaintiff’s subjective symptoms, it [i]s particularly important
that the ALJ explore these symptoms with plaintiff so that the ALJ c[an] properly exercise his
discretion to evaluate the credibility of the claimant . . . regarding the true extent of pain
alleged.” (internal quotation marks omitted)); Hilsdorf, 724 F. Supp. 2d at 352 (“Because the
ALJ failed to question [p]laintiff at the hearing about the nature of his . . . limitations, he
The relevant excerpts read:
[ALJ]: And you have . . . any difficulty in sitting?
[Miah]: No, sir.
(Admin. R. at 66.)
[Counsel]: [Y]ou testified earlier that you have no problem when you’re sitting. Do you have pain even . . .
while you’re . . . sitting?
[Miah]: Yes, . . . if I sit [for] a long period of time, yes.
[Counsel]: How long would you be sitting before you start having some . . . pain?
[Miah]: Approximately a half an hour; 20 minutes.
(Admin. R. at 72.)
neglected his obligation to pursue opportunities to evaluate further plaintiff’s subjective
complaints.” (internal quotation marks omitted)). The resolution of this potential inconsistency
is especially crucial because it bears directly on the fifth step of the disability inquiry — whether
Miah can do any other type of work.
If the ALJ had any misgivings about Miah’s subjective symptoms and how they affected
daily functioning, or even if he construed Miah’s testimony to be inconsistent, the ALJ could
easily have resolved any such uncertainties by further questioning Miah at the hearing. See
Colon, 2011 WL 3511060, at *14 (citing Hilsdorf, 724 F. Supp. 2d at 352). “When an ALJ fails
to sufficiently explore the facts underlying a claim, courts have not hesitated to remand.”
Stemmerman, 2014 WL 4161964, at *9 (collecting cases)); see Hankerson, 636 F.2d at 895–96
(remanding where the ALJ failed to question the plaintiff about various aspects of her testimony
regarding subjective physical symptoms); Hilsdorf, 724 F. Supp. 2d at 353–56 (remanding and
ordering the ALJ to explore the specific nature of plaintiff’s subjective complaints and
limitations during the relevant period). Accordingly, on remand, the ALJ should reconcile this
inconsistency to the extent he relies upon it as a ground to discount Miah’s credibility.
C. Remand and Attorney Fees
“Sentence four of Section 405(g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a
rehearing.’’’ Butts, 388 F.3d at 385 (quoting 42 U.S.C. § 405(g)). Remand is “appropriate
where, due to inconsistencies in the medical evidence and/or significant gaps in the record,
further findings would . . . plainly help to assure the proper disposition of [a] claim.” Kirkland v.
Astrue, No. 06-CV-4861 (ARR), 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29, 2008) (quoting
Butts, 388 F.3d at 386). Given the deficiencies outlined above, the decision is remanded for
further proceedings consistent with this opinion.
Miah has requested attorney’s fees and costs pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412, which provides that:
A court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs . . . incurred by that party in . . .
proceedings for judicial review of agency action, brought or against the United
States in any court having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The statute further provides that an application for attorney’s fees
and costs must be submitted within thirty (30) days of final judgment in the action, and must
comply with other explicit requirements. See id. at § 2412(d)(1)(B). Miah’s request for such an
award in his complaint does not so comply, and if Miah intends to make an appropriate
application, he may do so within the time specified by the statute and in accordance within its
For the reasons herein, defendant’s motion for judgment on the pleadings is DENIED,
plaintiff’s motion for judgment on the pleadings is GRANTED, and the matter is REMANDED
to the Commissioner of Social Security for further proceedings consistent with this opinion.
Plaintiff’s request for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412, is DENIED without prejudice.
The Clerk of Court is respectfully directed to enter judgment accordingly and close this
Roslynn R. Mauskopf
ROSLYNN R. MAUSKOPF
United States District Judge
Dated: Brooklyn, New York
March 29, 2016
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