Crutch v. Colvin
MEMORANDUM AND ORDER denying the Commissioner's 13 Motion for Judgment on the Pleadings, granting Plaintiff's 15 Cross Motion for Judgment on the Pleadings to the extent it seeks remand, and vacating the Commissioner's decision and remanding the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). Ordered by Judge Sandra L. Townes on 7/18/2017. (Barrett, C)
N CLERK'S OFi9CE
U.S. DISTRiCT COURT E.DJ.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORK
------- ---------- x
* JUL19 2017 *
MEMORANDUM AND ORDER
- against CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
TOWNES, United States District Judge,
Plaintiff Benjamin Crutch ("Plaintiff' or "Crutch") commenced this action against the
Commissioner of Social Security ("Commissioner") pursuant to 42 U.S.C. §405(g), seeking
judicial review of the Commissioner's final decision denying disability insurance benefits under
Title II of the Social Security Act. Currently before the Court are the parties' cross-motions for
judgment on the pleadings. (Docs. 13 and 15.) The Commissioner requests that her final
decision upholding the determination of Administrative Law Judge ("AU") David Z. Nisnewitz
be affirmed. Plaintiff challenges the AL's decision on various grounds. For the reasons
explained below, the Commissioner's motion for judgment on the pleadings is DENIED,
Plaintiffs cross-motion for judgment on the pleadings is GRANTED to the extent it seeks
remand, and the Commissioner's decision is vacated and the case is REMANDED for further
administrative proceedings under sentence four of 42 U.S.C. § 405(g). The Clerk of Court is
respectfully directed to close the case.
A. Procedural History
Plaintiff filed for disability insurance benefits on July 16, 2012, alleging a disability onset
date of June 12, 2012. Jr. 203, 222.)' His claim was initially denied on September 17, 2012,
(Tr. 154-159), and he then requested a hearing before an AU, which was held on September 25,
2013. (Tr. 166-167, 65-141.) On December 9, 2013, ALJ Nisnewitz issued a written decision
finding Plaintiff not disabled under the Social Security Act. (Tr. 27-42.) The AU's findings
became the Commissioner's final decision with respect to Plaintiffs claim when the Appeals
Council declined review on April 15, 2014. (Tr. 1-6.) Plaintiff filed the instant action on May
22 5 2014, seeking judicial review of the Commissioner's final decision.
B. Plaintiff's Evidence
At the hearing before the AU, Plaintiff testified that he was born in 1964 and, after
graduating high school, joined the United States Air Force. Jr. 76.) He currently lives with his
girlfriend and toddler-aged son; he has been separated from his wife, with whom he has five
older children, for eight years. Jr. 68-69.) Most recently, he worked as a courier for Federal
Express for approximately four years before joining the Department of Sanitation, where he
worked as a driver/collector for thirteen years. Jr. 77.)
On May 10, 2010, while riding in the passenger seat of a sanitation vehicle on the way to
his route, Crutch sustained injuries to his neck, back, and hip when the vehicle was struck on the
passenger side by an unmarked police truck. (Tr. 78-81.) He was treated in the emergency room
and released the same day with pain medication. Jr. 81.) He then followed up with his
'Citations to "Tr." refer to the certified Administrative Transcript of the record of Plaintiffs
proceedings before the Social Security Administration relating to his disability claim. (Doc. 17.)
generalist a few days later, who referred him to an orthopedist and to a pain management center,
where he received two steroid injections. Jr. 83, 88.) Plaintiff returned at an unspecified point
after the accident to work on light-duty status, and he continued to be on light-duty status until
June 12, 2012, the alleged onset date of his disability. (Tr. 86.)
When the pain from the accident did not subside, Plaintiff sought further treatment and
eventually underwent back surgery. Jr. 88-90.) Following surgery, the pain temporarily grew
"tolerable" until, sometime later, Plaintiff slipped and fell in the shower. Jr. 90.) Plaintiff's
pain was worse after the fall, but gradually improved. (Tr. 96.) Plaintiff nevertheless
experiences pain every day, approximately a six or seven on a scale of one to ten. Jr. 96, 112.)
He has been weening himself off prescription pain medication but still takes ibuprofen and Advil
PM three or four times a week. (Tr. 97-98.) If he does not take the Advil PM, he has a sleepless
night. (Tr. 115.) He also sometimes needs to take Tramadol, although he takes nothing
approximately two to three days per week because he is concerned about taking too much
Plaintiff also testified that his pain interferes with his ability to work, stating that he
cannot sit or stand for too long without experiencing pain. (Tr. 98-99.) He can sit for about
fifteen to twenty minutes at a time before needing to get up and move around, for a total of about
four or five hours in an eight hour work day. (Tr. 108-109.) He usually lays down the rest of the
day. Jr. 111.) He can lift twenty pounds but experiences pain when doing so. (Tr. 109.) At
home, he can cook quick meals and do a little sweeping, but does not do laundry, mop, dust, or
take out the garbage. (Tr. 110-111.)
Crutch can drive locally, but does not drive himself long distances because it is
"irritating." (Tr. 105.) However, he has travelled since his accident in May 2010. He flew to
the Dominican Republic in the fall of 2010 for a vacation. (Tr. 102.) He also took a car trip to
North Carolina in 2011 for a funeral, and visited friends in the Poconos and in New Jersey. (Tr.
103-105.) He spends time with this three-year-old son, watches him play in the yard, and walks
him to a nearby park. (Tr. 106.) Crutch can walk about three or four blocks before feeling pain
and needing to rest, and can walk about seven blocks total. (Tr. 106-107.)
To treat his pain, Crutch does exercises at home, including leg lifts for ten minutes a day,
three times a week. (Tr. 112.) Twice a week, for about 15 minutes, he rides a stationary bike.
Jr. 112-113.) Crutch also does pushups, and can do about ten total if he rests after five. (Tr.
C. Medical Evidence
1. Ramkumar Panhani, M.D., Internist
On May 3, 2010, just two days after his accident, Plaintiff was evaluated by Dr.
Ramkumar Panhani. Dr. Panhani noted that Crutch was in "mild distress." (Tr. 337.) The
physical examination revealed neck pain, tenderness of paraspinal muscles radiating into the
right shoulder, tenderness of lumbar spine on palpation, and tenderness of paravertebral muscles.
(Tr. 338.) Straight leg raising test was positive at approximately forty degrees, and lumbosacral
flexion and extension was reduced, as was squatting. (Id.) Plaintiff also exhibited decreased
range of motion and tenderness in the right shoulder. (Id.) Dr. Panhani recommended he
continue NSAID's for pain, obtain chiropractic treatment, and get an MRI if needed. (Tr. 339.)
2. Michael Genco, D.C., Chiropractor
Also on May 3, 2010, Plaintiff sought chiropractic treatment from Dr. Michael Genco,
D.C. (Tr. 34 1-342.) Dr. Genco observed reduced cervical and dorso-lumbar ranges of motion
and visible and palpable muscle spasms of the cervical, thoracic, periscapular and lumbar
paraspinal musculature. (Tr. 34 1-342.) He also observed marked tenderness in the affected
areas, except in cervical musculature. (Id.)
3. Jagga Alluri, M.D., Neurologist
On January 6, 2011, Plaintiff consulted Dr. Jagga Alluri, a neurologist and clinical
neurophysiologist. (Tr. 373-376.) Dr. Alluri observed weakness (4/5) in the dorsiflexion in the
left lower extremity, as well as a weakness (4/5) in the left quadriceps. (Tr. 375.) A straight leg
raising test was positive at 30 degrees. (Id.) Dr. Alluri noted in a written report that Plaintiff had
decreased and painful range of motion on the flexion in the lumbar region. (Id.) Importantly,
while a nerve conduction study was within normal limits, Dr. Alluri found evidence of left Si
radiculopathy. jr. 375, 377-3 80.) Dr. Alluri prescribed pain medication, and recommended
physical therapy and an MRI. (Tr. 375-376.) He also recommended Plaintiff avoid driving and
heavy lifting. (Id.) An MRI performed one week later revealed straightening of the lumbar
lordosis, which Dr. Charles Demarco, M.D., of Middle Village Radiology deemed consistent
with muscle strain and posterior disc herniation at L4-L5 and L5-Si. jr. 385.)
The following week, on January 21, 2011, Dr. Alluri evaluated Plaintiff again and
diagnosed left Si radiculopathy and posterior herniated disc at L4-L5 and L5-S1. jr. 381.)
Upon examination, Plaintiff showed mild improvement, but still exhibited weakness in the
dorsiflexion of the left lower extremity, and lumbar paraspinal muscles. (Id.) Straight leg
raising test was positive at 30 degrees. (Id.) Nevertheless, his gait was "normal." (Id.) In
follow up consultations on February 9, March 14, and April 20, 2011, Dr. Alluri determined that
Plaintiff's symptoms remained unchanged. (Tr. 382-384.)
4. Joshua B. Bederson, M.D., Neurosurgeon
On March 18, 2011, several months after his initial visit to Dr. Alluri, Plaintiff also
visited Dr. Joshua B. Bederson, M.D., a neurosurgeon and professor of neurosurgery. (Tr. 371372.) In a written report, Dr. Bederson opined that Crutch was antalgic, but did not demonstrate
any focal deficits and had normal anterior tibialis, extensor halluces, and plantar flexion. (Tr.
371.) However, Dr. Bederson did observe left L5 and partial Si sensory loss, a "remarkably"
positive straight leg raising test, and supressed deep tendon reflexes on the left side. (Id.) Dr.
Bederson also noted that these observations are confirmed by Plaintiff's January 2011 MRI.
(Id.) Dr. Bederson further opined that Crutch "has lumbar degenerative changes including
herniated disk at L4-L5 and L5-S 1. He has evidence of a left L5 and possibly to a lesser extent
Si sensory radiculopathy with no motor changes." jr. 372.) Dr. Bederson did not recommend
surgery at that time. (Id.)
5. Xinqi Xu, M.D., Family Doctor
Plaintiff also saw his family doctor, Dr. Xinqi Xu, M.D., for back pain treatment. (Tr.
318.) At visits on March 26, June 28, and October 4, 2011, Dr. Xu monitored his pain
medication and course of treatment. (Tr. 318, 320-323.) In March, Crutch reported to Dr. Xu
that pain in his lower back, radiating down his left leg, was tolerable at a level of six out of ten.
(Tr. 318.) The pain remained after his surgery, but no longer tingled or radiated down his leg.
(Tr. 320.) The pain became severe again after his fall in October 2011. jr. 322.)
6. Sebastian Lattuga, M.D., Treating Orthopedic Surgeon
Plaintiff also treated with Dr. Sebatian Lattuga, M.D., a board certified orthopedic and
spine surgeon. (See Tr. 386-392, 410-413, 425-459.) Physical evaluation on April 25, 2011
revealed the following:
o Thoracolumbar: Inspection to percussion and palpation shows
tenderness and spasms noted. There are restricted ranges of motion, 20
degrees of flexion (90° is normal), 10 degrees of extension (40° is normal),
left and right turning to 15 degrees (60° is normal).
o The Right and Left Lower Extremities are not within normal limits on
inspection, as described below.
o Patient has normal coordination and abnormal gait.
o Motor strength is abnormal: TA and EHL 4+15 bilaterally.
o Sensation is decreased in the L4. L5 and Si nerve root distributions.
o Examination of the reflexes are symmetric.
(Tr. 386-387) (emphasis in original.) After reviewing the January 14, 2011 M, Dr. Lattuga
diagnosed lumbar radiculopathy and herniated nucleus pulposus. (Tr. 387.) Dr. Lattuga and
Plaintiff discussed treatment options and decided to proceed with physical therapy, lumbar
epidural steroid injections, and a Posterior Spinal fusion and Laminectomy at Level L4, L5, and
Si. (Id.) At a follow-up visit on June 20, 2011, Plaintiff's condition remained unchanged, Jr.
426-427), but an x-ray of the lumbar spine showed positive right pars fracture at L5, greater than
50% collapse of disc space at L4-5, and 10mm of translation L4 on L5. (Tr. 449.)
The surgery took place two days later on June 22, 2011, at Franklin Hospital Medical
Center. (Tr. 288-294.) At a follow-up visit on July 5, 2011, Dr. Lattuga noted Crutch was doing
well post-surgery, with less pain, but was still experiencing residual pain consistent with preoperative conditions. (Tr. 388.) Physical evaluation revealed a restricted range of motion, and
no change from pre-operative motor strength, sensation, and reflexes. (Id.) Dr. Lattuga
continued to monitor Plaintiff's condition, and Plaintiff exhibited improvement from pre7
operative back pain levels on August 22, and September 19, 2011. Jr. 429-430.) On October
10, 2011, Dr. Lattuga noted that Crutch was doing well "until he fell." (Tr. 430.) Nevertheless,
lumbar x-rays were satisfactory with respect to the advancing fusion mass and showed no
movement of the surgical hardware resulting from the fall. (Tr. 431.) There was no change in
Crutch's condition on November 1, 2011. Jr. 431-432.) On February 7, 2012, Dr. Lattuga
noted that the symptoms caused by Crutch's fall were resolved. (Tr. 432.)
Dr. Lattuga's narrative reports show no material changes in Crutch's spine or
neurological exam through a follow-up visit on August 9, 2012. Jr. 433-434.) At the August
visit, Dr. Lattuga continued to instruct Crutch to "refrain from any activity that exacerbates
symptoms such as lifting, carrying, bending, [and] twisting." (Tr. 434.) On March 11, 2013,
Crutch exhibited a slightly increased range of motion, but Dr. Lattuga's physical restriction
recommendation remained the same. (Tr. 435.) In a narrative report dated March 12, 2013, Dr.
Lattuga recorded his opinion as follows:
If the information given to me by the patient is accurate, then the patient's lumbar
injury, symptomatology and surgery are directly and causally related to the motor
vehicle accident on 05/01/2010. Patient sustained an injury to his back as a result.
He will have permanent chronic pain exacerbated by all movement involving the
back. His prognosis for a full complete recovery to a pre accident level of pain of
the lumbar spine is poor.
Finally, on September 20, 2013, Dr. Lattuga completed a Treating Doctor's Patient
Functional Assessment To Do Sedentary Work (the "Functional Assessment"). Jr. 457-458.)
In the Functional Assessment, Dr. Laftuga indicated that Crutch could: stand and/or walk for a
total of less than four hours in an eight-hour work day; sit for a total of less than four hours in an
eight-hour work day; and lift and/or carry more than five pounds, but less that ten pounds, for a
total of up to 2/3 of an eight-hour work day. (Id.) The Functional Assessment also indicated that
Plaintiff: requires frequent breaks of fifteen minutes or more; suffers pain which prevents him
from performing eight hours of work; requires medications that interfere with his ability to
function at work; would have trouble concentrating and be off-task more than 10% of the day,
and requires an average of five or more sick days off per month. Jr. 458.) Dr. Lattuga listed his
clinical findings in support of his conclusions, including a positive MRI for lumbar herniated
nucleus pulposus, spinal fusion surgery, decreased range of motion, and altered sensation. (Id.)
7. Paul M. Manadan, M.D., Pain Specialist
For pain management, Crutch saw Dr. Paul Manadan, M.D., an anaesthesiologist and
Director of Pain Management at Flushing Hospital Medical Center. (Tr. 368.) At an initial
examination on February 17, 2011, Plaintiff exhibited a positive straight-leg raise test on the left
side and decreased sensation to pinprick in the left Si dermatome compared to the right side.
(Tr. 369.) Dr. Manadan also observed that Plaintiff had positive facet loading on the left side.
(Id.) Plaintiff was scheduled for two epidural steroid injection procedures, which took place on
February 23, and March 7, 2011. (Tr. 279-280, 369.)
8. Iqbal Teli, M.D., Consulting Physician
On September 6, 2012, Crutch was evaluated by consulting internist Dr. Iqbal Teli, M.D.
(Tr. 329-332.) Dr. Teli noted Crutch's pain was a seven out often, radiating down the left lower
extremity, but without numbness. (Tr. 329.) Crutch took Tramadol to treat the pain, which
occurs in the mornings and lasts for half an hour. (Id.) Around the house, Crutch cooks once a
week, showers and dresses himself daily, but does no cleaning. (Id.) Upon physical
examination, Crutch had a normal gait and stance, could walk on his heels and toes without
difficulty, and needed no help changing or getting on and off the exam table. (Tr. 330.)
However, Crutch could only squat 80% due to pack pain. (Id.) Dr. Teli's musculoskeletal
examination was mostly normal, but exhibited a restricted range of movement, as follows:
MUSCULOSKELETAL: Cervical spine shows full flexion, extension, lateral
flexion bilaterally, and full rotary movement bilaterally. No scoliosis, kyphosis,
or abnormality in thoracic spine. Lumbar spine shows full flexion, extension 25
degrees, lateral flexion 20 degrees bilaterally, and rotary movement 20 degrees
(Id.) Dr. Teli's neurologic examination revealed diminished left hand and left leg pain
sensation. (Tr. 331.) As a result of the examination, Dr. Teli concluded that Crutch "has
a mild restriction for squatting and mild restriction for lifting and carrying heavy
9. Chaim B. Eliav, M.D., Testifying Medical Expert
Dr. Chaim B. Eliav, M.D., a physiologist, testified as an impartial medical expert at the
hearing. In Dr. Eliav' s opinion, after reviewing the medical. evidence in the record, "while there
isn't a listing [impairment] equaled or met there are deficits in activity." (Tr. 120.) Specifically,
Dr. Eliav concluded Crutch should only do occasional bending or squatting, and no crawling.
(Tr. 121.) He also concluded that Plaintiff's heavy lifting should be limited to no more than ten
pounds frequently and twenty pounds occasionally. (Tr. 120.) Back extension, or arching,
should also be limited. Jr. 121.) Otherwise, Dr. Eliav determined that Crutch could sit or stand
for an entire eight hour work day, so long has he was able to change positions every hour for five
minutes to prevent stiffening. (Tr. 122.)
To reach this conclusion, Dr. Eliav relied on Dr. Lattuga's treatment reports, which
showed restricted range of movement, but essentially normal lower extremity strength. Jr.
117.) He also took into account the fact that Crutch had spinal surgery, and exhibited decreased
sensation at the L4, L5, and Si nerve distributions. Jr. 166-117.) Dr. Eliav did not take into
account the diagnosis of Si radiculopathy based on the January 6, 2011 nerve conduction
studies. In Dr. Eliav's opinion, based on his experience reading and conducting nerve
conduction studies in private practice and teaching, the slight increased spontaneous activit1 in
Plaintiff's results was not evidence of Si radiculopathy. (Tr. 118-119.) Rather, the increased
activity was a result of scar tissue from Plaintiff's surgery, and was not neurologic in origin. 2
(Tr. 123.) Finally, Dr. Eliav relied on notes from Dr. Teli's examination to conclude that,
although Crutch has a somewhat reduced squat, his status is "largely intact." (Tr. 119.)
D. The AL's Decision
ALJ Nisnewitz issued his written decision finding Plaintiff not disabled on December 9,
2013. In the decision, the ALJ found that Plaintiff met the insured status requirements of the
Social Security Act through December 31, 2016, and had not engaged in substantial gainful
activity since the alleged onset date of his disability, June 12, 2012. (Tr. 34.) Additionally, the
ALJ found Crutch has a history of lumbar disc herniation status-post L4-5 51 laminectomy and
discectomy, which impairs his ability to perform basic work activities. (Id) Thus, Plaintiff was
found to have a severe impairment. (Id.) Plaintiff's history of hypertension, however,
constituted a non-severe impairment. (Tr. 35.) Considering both conditions, the ALJ determined
that Crutch did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. jr. 35.) Therefore, ALJ Nisnewitz reviewed the record and determined Plaintiff had the
Residual Functional Capacity ("RFC") to perform light work, as follows:
The claimant is able to: lift/carry 10 pounds frequently and 20 pounds
occasionally; stand/walk/sit for 8 hours in an 8-hour workday with 5 minute
As explained above, Crutch's spinal surgery in fact took place on June 22, 2011, more than five
months after the January 6, 2011 nerve conduction study. (Tr. 291-294.)
breaks each hour (at the work station/site); and occasionally bend and squat. The
claimant cannot crawl.
To reach this RFC, the AU accorded Dr. Alluri's and Dr. Manadan's opinions some
weight. Jr. 36.) The AU also gave some weight to Dr. Lattuga's treatment reports "as he
treated the claimant, though [his] opinion is not entirely consistent with the record and does not
quantify the specific limitations." Jr. 37.) With respect to Dr. Lattuga's September 20, 2013
Functional Assessment, however, the ALJ accorded Dr. Lattuga' s opinion limited weight
"because it was inconsistent with the record, including his own treatment records," and Crutch's
own estimations of his limitations, and because it "overly amplified the claimant's limitations."
Jr. 38.) The opinion of Dr. Teli was given significant weight, "as it was consistent with the
evidence overall above, and with the physical examination of the claimant." (Id.) The opinion
of Dr. Eliav, the testifying medical expert, was "given great weight as it was supported by the
record as a whole and he was able to cite to the record to support his opinion." (Id.) Finally, the
ALJ determined that Crutch's medically determined impairments could reasonably be expected
to cause his alleged symptoms, but that his statements concerning the intensity, persistence, and
limiting effects of his symptoms were not entirely credible. Jr. 39.)
Based on these findings, the AU determined that Crutch was unable to perform his past
relevant work, but considering his age, education, work experience, and RFC, there were jobs in
significant numbers in the national economy that Crutch could perform. (Tr. 41.) Thus, the AU
found Crutch was not disabled. (Id.)
A. Standard of Review
A final determination of the Commissioner of Social Security upon an application for
disability benefits is subject to judicial review as provided in 42 U.S.C. § 405(g). See 42 U.S.C.
§ 1383(c)(3). A court's review under 42 U.S.C. § 405(g) of a final decision by the
Commissioner is limited to determining whether the conclusions were supported by substantial
evidence in the record and were based on a correct legal standard. Lamay v. Comm 'r of Soc.
Sec., 562 F.3d 503, 507 (2d Cir. 2009); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
The district court has the "power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
"Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389, 401 (1971); see also Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). "In
determining whether substantial evidence supports a finding of the Secretary [now,
Commissioner], the court must not look at the supporting evidence in isolation, but must view it
in light of other evidence in the record that might detract from such a finding, including any
contradictory evidence and evidence from which conflicting inferences may be drawn." Rivera
v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991). The "substantial evidence" test applies
only to the Commissioner's factual determinations. Similar deference is not accorded to the
Commissioner's legal conclusions or to the agency's compliance with applicable procedures
mandated by statute or regulation. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984).
"Where there is a reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no disability
creates an unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles." Johnson, 817 F.2d at 986.
However, where application of the correct legal principles to the record could lead only to the
same conclusion reached by the Commissioner, there is no need to remand for agency
reconsideration. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
B. Standard for Determining a Disability
In order to gain federal disability benefits under the Social Security Act, a claimant must
establish that she has a "disability." See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Under the Act, "disability" means an "inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment ... which has lasted or can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A) (2004). To be eligible to receive benefits, "an applicant must be 'insured for
disability insurance benefits." Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (quoting 42
U.S.C. §§ 423(a)(1)(A) & 423(c)(1)). Here, Plaintiff meets the insured status requirements of
the Social Security Act through December 31, 2016. (Tr. 34). Thus, Plaintiff must prove that he
was disabled within the meaning of the Social Security Act on or before that date.
When evaluating a claim for disability benefits, the ALJ must follow the five-step
procedure set forth by the Commissioner's regulations.
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. 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. 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.... 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. Finally, if the claimant is unable to
perform his past work, the Commissioner then determines whether there is other
work which the claimant could perform.
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam) (quoting Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (alterations in original); see 20 C.F.R. § 404.1520. The claimant
bears the burden of proof for the first four steps of the inquiry, but the Commissioner bears the
burden for the fifth step. Selian, 708 F.3d 409, 418; see also Butts v. Barnhart, 388 F.3d 377 9
383 (2d Cir. 2004).
C. The Treating Physician Rule
"The opinion of a treating physician on the nature or severity of a claimant's impairments
is binding if it is supported by medical evidence and not contradicted by substantial evidence in
the record." Selian, 708 F.3d at 418 (citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008));
see also Shaw, 221 F.3d at 134 ("[T]he medical opinion of a claimant's treating physician is
given controlling weight if it is well supported by medical findings and not inconsistent with
other ... evidence."); 20 C.F.R. § 404.1527(c)(2). If the AU decides against giving the opinion
of a treating physician controlling weight, various factors must be applied to decide how much
weight the opinion will be given. 20 C.F.R. § 404.1527(c)(2)(i)-(ii), 3-5. The AU must
consider: 1) the length of the treatment relationship and the frequency of examination; 2) the
nature and extent of the treatment relationship; 3) the relevant evidence supporting the opinion,
particularly medical signs and laboratory findings; 4) the consistency of the opinion with the
record as a whole; and 5) whether the physician is a specialist in the relevant medical area.
Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008).
Additionally, when the treating physician's opinion is not given controlling weight, the
AU must give good reasons for the weight that is given. 20 C.F.R. § 404.1527(c)(2). Failure to
give such reasons is alone grounds for remand. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)
(citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)); Milien v. Astrue, 10-CV-2447 (JG),
2010 WL 5232978, at *8 (E.D.N.Y. Dec. 16, 2010) (citing former 20 C.F.R. § 404.1527(d)(2)
and Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)). While the opinion of a treating
physician may be properly denied controlling weight if inconsistent with other evidence, "not all
expert opinions rise to [a] level ... that is sufficiently substantial to undermine the opinion of [a]
treating physician." Burgess, 537 F.3d at 128. For example, vague consultative opinions
describing a claimant's limitation in terms such as "mild" or "moderate" are insufficient to
undermine the opinion of a treating physician. Martinez v. Colvin, No. 13-CV-0834 (FB), 2014
WL 2042284, at *3 (E.D.N.Y. May 19, 2014) (citing Curry v. Apfel, 209 F.3d 117,123 (2d Cir.
2000)); see also Selian, 708 F.3d 409, at 421.
Plaintiff argues the AU improperly applied the treating physician rule by failing to
accord controlling weight to Dr. Lattuga's opinions. As set forth above, the ALJ was required to
give controlling weight to Dr. Lattuga's opinions, or else give good reasons for the weight that is
given. See 20 C.F.R. § 404. 1527(c)(2). The AU, however, did not meet this obligation.
In his written decision, the ALJ accorded some weight to Dr. Lattuga's opinion that
Crutch should "refrain from any activity that exacerbates symptoms such as lifting, carrying,
bending, [and] twisting." (Tr. 37, 434.) The "good reasons" cited for discounting this opinion
were that it "is not entirely consistent with the record and does not quantify the specific
limitations." (Tr. 37.) This conclusory, one-sentence explanation does not fulfill the AL's
obligation under the treating physician rule. See Morgan v. Colvin, 592 F. App'x 49, 50 (2d Cir.
2015) (Summary Order); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 199 (2d Cir. 2010)
(Summary Order). Without specific citations to the medical record identifying specific portions
that are inconsistent, the Court cannot properly review the AL's decision, and claimants are
deprived of an adequate understanding of the reasoning behind the disposition of their cases.
Marchetti v. Colvin, No. 13-CV-02581 (KAM), 2014 WL 7359158, at *13 (E.D.N.Y. Dec. 24,
2014) (remanding for AL's failure to specify what portions of the record were inconsistent with
treating physician's opinion); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (remanding for the
Commissioner to provide an explanation of why the treating physicians' opinions were not
Indeed, the only evidence in the record that is obviously inconsistent with Dr. Lattuga's
opinion consists of Dr. Teli's assessment, which was accorded "significant weight," and Dr.
Eliav's opinion, which was accorded "great weight." While a consulting physician or expert
opinion may in some cases override those of a treating physician, this is not one of those cases.
Dr. Teli, an internist, is not a specialist in the field of Plaintiff's injuries and examined Crutch
only once. See Selian, 708 F.3d at 419 ("ALJs should not rely heavily on the findings of
consultative physicians after a single examination."). Moreover, his opinion of Plaintiff's
physical limitations lacked any specificity, and consisted of only the single sentence that "[t]he
claimant has a mild restriction for squatting and mild restriction for lifting and carrying heavy
weights." (Tr. 331.) Dr. Teli's opinion is simply too vague and unsubstantial to be relied upon.
See Burgess, 537 F.3d at 128 (expert opinions that are vague, "not substantial," or that address
only issues of which claimant was not complaining, cannot undermine treating physician
opinion.); Martinez v. Colvin, No. 13-CV-0834 (FB), 2014 WL 2042284, at *3 (E.D.N.Y. May
19, 2014) (citing Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000)) (ALJ erred in relying on
consultative physician's vague report). The significant weight accorded to Dr. Teli's wholly
unspecific opinion is especially puzzling given the fact that Dr. Lattuga's opinion was discounted
for its failure to "quantify [Plaintiff's] specific limitations." (Tr. 37.)
Nor is Dr. Eliav' s opinion of Crutch's limitations more reliable. Dr. Eliav did not
personally examine Plaintiff; his opinion is based purely on a review of Plaintiff's medical
records. It is clear from the hearing testimony, moreover, that Dr. Eliav' s review was deficient
in at least one major respect. Dr. Eliav relied on his extensive experience interpreting
electrodiagnostic tests to dispute the diagnosis of radiculopathy. Dr. Eliav interpreted the slight
increased spontaneous activity in Crutch's January 6, 2011 results as mere scar tissue from his
surgery, rather than as evidence of radiculopathy. Jr. 118-119, 123.) However, the record
clearly shows that Crutch underwent surgery over five months later, on June 22, 2011. (Tr. 291294.) Every other doctor to consider the results diagnosed radiculopathy, including Drs. Alluri,
Bederson, and Lattuga. Jr. 381, 372, 387.) Dr. Eliav's opinion of Plaintiff's physical
limitations, which greatly resembles the AU's RFC, is therefore based on a clear misreading of
the record, and cannot properly serve as a comparator to Dr. Lattuga's opinion. Without any
further detail specifying how Dr. Lattuga's opinion is inconsistent with the record, this reason for
discounting Dr. Lattuga's opinion is simply insufficient to fulfill the AU's obligation under the
treating physician rule. See Morgan v. Colvin, 592 F. App'x at 50.
The second reason given for discounting Dr. Lattuga's opinion, that it failed to quantify
Plaintiff's specific physical limitations, is also not a good reason. Dr. Lattuga did submit the
Functional Assessment upon request, and that assessment in fact quantified Crutch's limitations.
The AU, however, accorded the Functional Assessment only limited weight "because it was
inconsistent with the record, including his own treatment records," and Plaintiffs own
estimations of his limitations, and hence "overly amplified the claimant's limitations." jr. 38.)
Again, the AL's reasons are conclusory; there is no explanation of what specifically in the Dr.
Lattuga' s treatment notes or Plaintiffs testimony contradicts the Functional Assessment.
The Commissioner argues in detail that Dr. Lattuga's Functional Assessment is
inconsistent both with the record and with Plaintiff's self-reported activity. (Mem. of Law in
Sup. of the Def.'s Mot. For Judgment on the Pleadings, Doc. 14, 19-21.) However, none of these
alleged inconsistencies were cited by the ALJ as reasons for discounting Dr. Lattuga' s
Functional Assessment, and the Court is not permitted to accept post hoc rationalizations for
agency action. Newbury v. Astrue, 321 F. App'x 16, 18 (2d Cir. 2009) (Summary Order)
(quoting Snell, 177 F.3d at 134). It is the AL's obligation to "comprehensively set forth [the]
reasons for the weight assigned to a treating physician's opinion." Halloran, 362 F.3d at 33.
In short, the AL's reasons for failing to accord Dr. Lattuga's opinions of Crutch's
physical limitations controlling weight were conclusory, were otherwise inadequate, and did not
constitute "good reasons" for the purpose of the treating physician rule. See Rugless v. Comm 'r
of Soc. Sec., 548 F. App'x 698, 699-700 (2d Cir. 2013) (Summary Order) (remanding because
AL's conclusory explanation for discounting treating physician's opinion did not fulfill
obligation to provide "good reasons"). While the medical record may provide good reasons for
disfavoring Dr. Lattuga's opinion, under the treating physician rule the ALJ must explain these
reasons in the first instance. On remand, the ALJ must state his findings and provide good
reasons for the weight he accords to Dr. Lattuga' s opinion with reference to specific evidencein
For the reasons stated above, the Commissioner's motion for judgment on the pleadings
(Doe. 13) is DENIED, Plaintiff's cross-motion for judgment on the pleadings (15) is
GRANTED to the extent it seeks remand, and the Commissioner's decision is vacated and the
case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. §
405(g). The Clerk of Court is respectfully directed to close the case.
/s/ Sandra L. Townes
ND;RNA L. TOWNES
United States District Judge
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