Castro v. Commissioner of Social Secuity

Filing 20

MEMORANDUM AND ORDER denying 15 the Commissioner's Motion for Judgment on the Pleadings; granting 17 Plaintiff's Cross-Motion for Judgment on the Pleadings. For the reasons discussed in the attached Memorandum and Order, the Commissione r's motion for judgment on the pleadings is denied, and Plaintiff's cross-motion for judgment on the pleadings is granted. The Commissioner's decision is vacated, and this action is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 3/31/2016. (Reyneri, Rafael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------CESAR CASTRO,
Plaintiff,
v.

MEMORANDUM & ORDER
15-CV-336 (MKB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Cesar Castro filed the above-captioned action pursuant to 42 U.S.C. § 405(g)
seeking review of a final decision of the Commissioner of Social Security (the “Commissioner”),
denying his claim for Social Security disability insurance benefits. The Commissioner moves for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
claiming that the decision of Administrative Law Judge Moises Penalver (the “ALJ”) is
supported by substantial evidence and should be affirmed. (Comm’r Notice of Mot. for J. on
Pleadings, Docket Entry No. 15; Comm’r Mem. of Law in Supp. of Mot. for J. on the Pleadings
(“Comm’r Mem.”), Docket Entry No. 16.) Plaintiff cross-moves for judgment on the pleadings.
(Pl. Cross-Mot. for J. on Pleadings, Docket Entry No. 17; Pl. Mem. of Law in Supp. of CrossMot. for J. on the Pleadings (“Pl. Mem.”), Docket Entry No. 18.) For the reasons set forth
below, the Commissioner’s motion for judgment on the pleadings is denied and Plaintiff’s crossmotion for judgment on the pleadings is granted.
I.

Background
Plaintiff is a forty-nine-year-old man with a high school education. (R. 23.) Plaintiff last

worked on January 19, 2009 as a heating, ventilation and air conditioning (“HVAC”) installer

and servicer. (R. 86.) Plaintiff applied for disability insurance benefits on October 6, 2009, with
an alleged disability onset date of January 19, 2009. (R. 16.) Plaintiff complained of neck and
lower back impairments, an amputated right hand, asthma, arthritis and depression. (R. 18.)
Plaintiff’s application was denied on February 2, 2010, and he timely requested a hearing before
an ALJ. (R. 139.) The hearing was held before ALJ Wallace Tannenbaum (“ALJ
Tannenbaum”) on September 9, 2010. (Id.) On September 17, 2010, ALJ Tannenbaum issued a
decision finding that Plaintiff was not disabled within the meaning of the Social Security Act
(the “Act”). (R. 145–46.) Plaintiff appealed ALJ Tannenbaum’s decision to the Appeals
Council and, on April 26, 2012, the Appeals Council granted Plaintiff’s appeal and remanded the
matter for another hearing. (R. 151–52.) A second hearing was held before the ALJ on
September 26, 2012. (R. 16.) On March 15, 2013, the ALJ issued a decision finding that
Plaintiff was not disabled within the meaning of the Act. (R. 25.) Plaintiff appealed the ALJ’s
decision to the Appeals Council. (R. 1.) On December 8, 2014, the Appeals Council denied
review of the ALJ’s decision. (R. 1–4.)
a.

Plaintiff’s testimony
i.

September 9, 2010 hearing

At the September 9, 2010 hearing, Plaintiff testified that his right hand was amputated in
1984. (R. 60.) From the time of his amputation until January of 2009, Plaintiff worked as an
HVAC installer and servicer. (R. 61.) In January of 2009, Plaintiff suffered a workplace injury
when he attempted to grab a falling twenty-four foot ladder and felt a “pop” in his back.1
(R. 68.) As a result of injuring his back, Plaintiff stopped working in January of 2009. (R. 59.)
Plaintiff can no longer work in the air conditioning field because it is too physically demanding
1

Plaintiff filed a worker’s compensation claim, which settled. (R. 59.)

2

given his back injury. (R. 63–64.)
As a result of the workplace injury, Plaintiff suffers from back pain “all the time.”
(R. 62.) Since injuring his back, Plaintiff has been treated by multiple doctors, including a
primary care physician, an orthopedist, a neurologist and a psychologist. (R. 60, 65–66.)
“Shortly” after the accident occurred, Plaintiff began visiting an orthopedist for weekly physical
therapy sessions and, at the time of the September 9, 2010 hearing, he was being treated by this
orthopedist. (R. 60, 64.) Plaintiff’s doctors have advised him to undergo surgery, but Plaintiff
has declined to have surgery. (R. 62.)
Plaintiff has been depressed since his workplace injury. (R. 67.) He is unable to bathe by
himself and his wife washes him from the waist down. (R. 71.) Because he is unable to bend, he
cannot dress himself and needs assistance to tie his shoes and button his shirt. (R. 70.) He is
unable to walk more than three blocks without having to stop, (R. 71), and is unable to drive,
(R. 63).
Plaintiff spends his average day attempting to exercise and engaging in physical therapy
at home, but he has not noticed any improvement as a result of the physical therapy. (R. 64.)
Plaintiff rests whenever he begins to feel back pain. (R. 69.) Plaintiff rated his pain as an eight
on a scale of ten. (R. 69.)
ii.

September 26, 2012 hearing

At the September 26, 2012 hearing, Plaintiff explained that his right hand was amputated
when he was seventeen or eighteen years old. (R. 92.) Plaintiff is still able to write and use the
telephone, and was able to work before he suffered his workplace injury. (Id.) Plaintiff last
worked on January 19, 2009, the date of his workplace accident. (R. 86.) At the time of his
accident, Plaintiff had been working as an HVAC installer and servicer for about eight years.

3

(R. 102–03.) Before that, Plaintiff did “home improvements” by working on “flooring, siding,
and roofing.” (R. 103.)
After his workplace injury, Plaintiff participated in physical therapy sessions for a year.
(R. 89.) Two months before the September 26, 2012 hearing, Plaintiff resumed physical therapy,
which was helping to alleviate his pain. (R. 90.) Plaintiff also received treatment from a
chiropractor. (Id.) The chiropractor focused his treatment on Plaintiff’s middle and lower back,
while the physical therapy sessions focused on Plaintiff’s upper back and neck. (R. 94.)
Plaintiff described the pain he feels as “pins and needles” and stated that it radiates down
his left leg, resulting in numbness in his left leg. (R. 87.) Plaintiff experiences constant pain
every day, which is exacerbated by sitting, walking or standing for “too long.” (R. 87–88.)
Plaintiff feels pain in his left arm and shoulder when he moves his neck left or right. (R. 93.)
Plaintiff takes over-the-counter pain medications to relieve his pain because his doctors fear the
risk of addiction if they prescribe stronger pain medications. (R. 88.) Plaintiff’s doctors have
suggested that he consider epidural injections to treat his pain, but because of Plaintiff’s concern
that the injections would provide only temporary relief and would “enhance” his pain once they
wore off, he has refused this course of treatment. (R. 88–89, 101–02.)
Plaintiff can walk continuously for no more than thirty minutes before experiencing back
pain and needing to rest for twenty minutes. (R. 90–91.) Plaintiff can stand continuously for
thirty minutes and sit continuously for five minutes before his back pain forces him to change
positions. (R. 91.) Plaintiff can lift ten pounds occasionally. (R. 91–92.)
Plaintiff has a driver’s license but stopped driving four years before the hearing. (R. 84.)
Plaintiff attends one-hour religious services every other Saturday but has difficulty sitting for the
entire time because of his lower back pain. (R. 85.) He walks five blocks every other day to

4

visit his relatives. (Id.) Plaintiff is unable to sweep, mop, vacuum, shop for groceries or wash
his laundry, and can wash only a few dishes. (R. 87.)
Plaintiff has asthma which is triggered by pollen, dander and cats, and he has suffered
from asthma for his entire life. (R. 94–95.) He has never been admitted to the hospital as a
result of his asthma, and he uses an inhaler approximately one time per month. (Id.) Plaintiff
suffers from arthritis in his hand and knees, but he has not received any treatment for his
arthritis. (R. 95–96.) As a result of Plaintiff’s back injury and his inability to work, he has
experienced mental health problems. (R. 97.) Plaintiff first visited Dr. Puro, a mental health
specialist, in May of 2012, and has been visiting Dr. Puro twice a week since his first visit.
(R. 97–98.) Plaintiff has never been hospitalized for mental health reasons. (Id.) Plaintiff has
difficulty concentrating as a result of his mental health challenges. (R. 100.)
b.

Medical evidence

Immediately after injuring his back on January 21, 2009, Plaintiff was treated at
Richmond University Medical Center. Thereafter, from 2009 to approximately 2013, Plaintiff
received treatment from eight doctors with various specialties, including chiropractors, a
neurologist, an orthopedic surgeon, a pain medicine specialist, a psychiatrist, an internist, a
physiatrist and a psychologist. Plaintiff also underwent magnetic resonance imaging (“MRI”) of
his cervical and lumbar spine, and a consultative examination.
i.

Richmond University Medical Center

On January 21, 2009, the day of the workplace accident, Plaintiff went to Richmond
University Medical Center. (R. 363.) Plaintiff complained of upper and lower back pain after
lifting a ladder at work. (Id.) Dr. Osias Diaz examined Plaintiff’s back and found diffuse
tenderness in the “paralumbar area” and mild spasms. (Id.) Dr. Diaz prescribed muscle
relaxants and ibuprofen for Plaintiff’s pain. (R. 362.)
5

ii.

Dr. George Visvikis, M.D.

On February 20, 2009, Dr. George Visvikis, M.D., of Regional Radiology, conducted an
MRI of Plaintiff’s cervical spine. (R. 279.) The MRI revealed “broad based spondylotic
ridging” and “marked right and moderate left neural foraminal narrowing” at C5–6. (Id.) An
MRI of Plaintiff’s lumbar spine from the same day revealed “straightening of the normal lumbar
lordosis” but “no evidence of disc protrusion, spinal stenosis or neural foraminal narrowing.”
(R. 280)
On September 4, 2013, Dr. Visvikis performed an MRI of Plaintiff’s lumbar spine. Dr.
Visvikis compared the MRI with the February 20, 2009 MRI and noted that the current MRI
revealed a “left paracentral disc extrusion” at L5–S1, “which appear[ed] to contact the left S1
nerve roots and mildly indent[] on the anterolateral aspect of the thecal sac.” (R. 6
(capitalization omitted).)
iii. Dr. John Piazza and Dr. Denny Julewicz
From 2009 through 2011, and from 2012 through at least 2013, Plaintiff received
chiropractic treatments from Dr. John Piazza and Dr. Denny Julewicz. On March 24, 2009, Dr.
Piazza examined Plaintiff. (R. 492–95.) Plaintiff complained of pain in his neck and lower
back, which he rated as a seven or eight on a scale of ten. (R. 495.) Dr. Piazza noted that
Plaintiff’s cervical and lumbar spine showed flexion, extension, lateral flexion, and rotation that
were below normal ranges and observed that these motions caused Plaintiff pain. (R. 492.)
Upon examining Plaintiff, Dr. Piazza noted “tenderness to palpation on the lumbar and cervical
spine,” a “positive [D]eerfield” test, “subluxation at the level of C2 on the left, C4 on the right,
C5 on the right, C7 on the left, L5 on the left, and L4 on the right,” “asymmetry/misalignment”
in Plaintiff’s “cervical and lumbar area,” and “myospasms of the lumbo-sacral spine of the

6

paralumbar bilateral muscle.” (R. 496 (capitalization omitted).) X-rays of Plaintiff’s cervical
and lumbar spine taken that day revealed intervertebral foramen encroachment at L5–S1, left
lateral flexion malposition at L1, L2, L3, L4, and L5, decreased disc spacing at C5–C6 and
hypolordosis of the cervical spine. (R. 455.) Dr. Piazza stated that Plaintiff was “on total work
restriction.” (Id.) Dr. Piazza treated Plaintiff with mechanical traction applied to Plaintiff’s
cervical and lumbar spine, spinal adjustment and moist heat. (Id.)
Plaintiff began seeing Dr. Piazza for weekly chiropractic treatment. (R. 498–527.) From
March 24, 2009 through May 9, 2009, Dr. Piazza’s findings and diagnoses remained
unchanged. 2 (R. 498–527.) On May 9, 2009, Dr. Piazza stated that Plaintiff had a mild
permanent partial disability. (R. 528–29.) On July 29, 2009, Plaintiff reported that his lower
back pain had “improved by 70% since beginning treatment,” and Dr. Piazza opined that
Plaintiff could return to work on August 10, 2009. (R. 549–51.) However, on August, 5, 2009,
Dr. Piazza changed his position and stated that Plaintiff was “on total work restriction.”
(R. 553.)
On September 24, 2009 and October 8, 2009, Dr. Piazza and Dr. Julewicz jointly
completed reports in connection with Plaintiff’s workers’ compensation claim.3 (R. 292–95.)
They diagnosed Plaintiff with a lumbar strain, which was affecting his cervical spine, and stated
that Plaintiff had a moderate partial disability. (Id.) They noted that Plaintiff’s complaints of
pain were consistent with the history of his injury and their objective findings. (R. 293, 295.)

2

The Court notes only changes in Dr. Piazza’s and Dr. Julewicz’s examination findings
and diagnoses.
3

The September 24, 2009 report was based on Dr. Piazza’s and Dr. Julewicz’s
examinations of Plaintiff on September 17 and 23 of 2009. (R. 294.) The October 8, 2009 report
was based on their examinations of Plaintiff on October 1 and 6 of 2009. (R. 292.)

7

They determined that Plaintiff could return to work but that Plaintiff could not lift more than
twenty pounds and could not sit or stand for more than one to two hours. (Id.)
On January 22, 2010, Dr. Julewicz examined Plaintiff. (R. 331–36.) Plaintiff told Dr.
Julewicz that he was still experiencing severe lower back pain and that, although the chiropractic
treatments relieved his pain temporarily, the pain was relatively consistent. (R. 331.) Plaintiff
rated his pain as a six on a scale of ten and stated that he felt the pain “frequent[ly].” (R. 332.)
Dr. Julewicz concluded that Plaintiff had a mild permanent partial disability, discharged Plaintiff
from his care, and referred Plaintiff for a pain management evaluation and a psychiatric
evaluation. 4 (R. 333–36.)
On May 9, 2012, Dr. Piazza examined Plaintiff. (R. 612.) Plaintiff told Dr. Piazza that
he had frequent lower back pain that radiated to his left leg. (R. 613.) He rated the intensity of
his pain as an eight on a scale of ten. (Id.) Dr. Piazza diagnosed Plaintiff with “segmental
dysfunction of the lumbar spine” and “right L5/S1 radiculopathy.” (R. 615 (capitalization
omitted).)
Plaintiff resumed regular chiropractic treatment. (R. 612–72.) On September 7, 2012,
the final report in the record, Plaintiff was examined by Dr. Victoria Scarano-Afflitto, a
chiropractor in the same practice as Dr. Piazza and Dr. Julewicz. (R. 673–78.) Dr.
Scarano-Afflitto noted that Plaintiff “continue[d] to show functional improvement” and that
Plaintiff’s reported pain intensity improved from a six on a scale of ten to a four on a scale of
ten. (R. 673.)
4

Plaintiff contends that he was discharged from chiropractic treatment because of a
“lack of insurance coverage.” (Pl. Mem. 10.) Plaintiff further contends that on April 3, 2012,
the New York State Worker’s Compensation Board concluded that Plaintiff had “permanent
partial disability” and that “[a]s a result of this decision, Plaintiff regained insurance coverage
and was again able to obtain regular treatment and therapy.” (Id. at 12.)

8

iv. Dr. Bhim Nangia, M.D.
On March 28, 2009, Plaintiff visited Dr. Bhim Nangia, M.D., a neurologist, for a
consultation. (R. 324.) Plaintiff complained of neck pain that radiated to this left shoulder and
arm, numbness in his left arm and hand, “constant persisting lower back pain” that radiated down
both legs, and numbness in both legs. (Id.) Upon examining Plaintiff’s cervical spine, Dr.
Nangia noted “moderate suboccipital tenderness” and paraspinal muscle spasms “with restriction
in the range of motion.” (R. 325.) Dr. Nangia also performed a foraminal compression test
which was positive. (Id.) Dr. Nangia observed “multiple areas with mild tenderness” along
Plaintiff’s lumbosacral spine and paraspinal muscles, as well as paraspinal spasms “with
restricted range of motion.” (Id.) Plaintiff’s gait was antalgic without ataxia and his tandem gait
was normal. (Id.) Dr. Nangia diagnosed Plaintiff with “cervicalgia,” “cervical muscle
post-traumatic sprain syndrome,” “lumbalgia,” “lumbosacral muscle post-traumatic sprain
syndrome,” rule out “traumatic herniation of the cervical intervertebral disc,” rule out “cervical
radiculopathy,” rule out “traumatic herniation of the lumbar intervertebral disc,” and rule out
“lumbosacral radiculopathy.” 5 (R. 326 (capitalization omitted).) Dr. Nangia recommended
physical therapy, chiropractic and acupuncture consultations, nerve conduction studies, and told
Plaintiff to continue taking Vicodin ES and Flexeril. (Id.) Following his examination, Dr.

5

“Rule-out” references a provisional diagnosis to be ruled out with further medical
investigation. See Straughter v. Comm’r of Soc. Sec., No. 12-CV-825, 2015 WL 6115648,
at *16 n.38 (S.D.N.Y. Oct. 16, 2015) (explaining that psychiatric diagnoses were “rule-out or
hypothetical diagnosis needing further exploration”); Beach v. Comm’r of Soc. Sec., No.
11-CV-2089, 2012 WL 3135621, at *8 (S.D.N.Y. Aug. 2, 2012) (“In the medical context, a
‘rule-out’ diagnosis means there is evidence that the criteria for a diagnosis may be met, but
more information is needed in order to rule it out.” (quoting Carrasco v. Astrue, No. 10-CV-43,
2011 WL 499346, at *4 (C.D. Cal. Feb. 8, 2011)).

9

Nangia completed a report in connection with Plaintiff’s workers’ compensation claim in which
he opined that Plaintiff was “unable to do any type of work.” (R. 291.)
On October 21, 2009, Dr. Nangia had a follow-up consultation with Plaintiff. (R. 340–
42.) Plaintiff complained of neck pain that radiated to his left shoulder and arm, numbness in his
left arm, lower back pain that radiated down both legs, numbness in both legs, the inability to lift
heavy objects, and difficulty in walking or sitting. (R. 340.) Plaintiff rated his pain as a six or
seven on a scale of ten. (Id.) Dr. Nangia examined Plaintiff and noted that Plaintiff’s cervical
muscles appeared asymmetrical, and he observed that Plaintiff had tenderness and muscle
spasms in his paraspinal muscles. (Id.) Plaintiff’s cervical spine and lumbar spine exhibited
flexion, extension, left and right rotation, and left and right lateral flexion that were below
“normal” ranges. (R. 340–41.) Dr. Nangia diagnosed Plaintiff with cervical sprain, cervical
radiculitis, lumbar strain, and lumbar radiculitis. (R. 341.) Dr. Nangia stated that Plaintiff’s
workplace accident was the cause of his injuries, that Plaintiff’s complaints were consistent with
the history of his injury, and that Plaintiff had a fifty percent temporary impairment. (R. 342.)
On October 31, 2009, Dr. Nangia performed nerve conduction studies on Plaintiff, which
revealed evidence of “left C5–6 radiculopathy.” (R. 337–39.)
On December 1, 2009, based on his October 21 and 31, 2009 examinations of Plaintiff,
Dr. Nangia completed a report in connection with Plaintiff’s workers’ compensation claim.
(R. 282–85.) Dr. Nangia diagnosed Plaintiff with a neck sprain, lumbar sprain, brachial neuritis
or radiculitis, and “thoracic/lumbosacral” neuritis or radiculitis. (R. 282.) Dr. Nangia noted that
Plaintiff’s complaints of pain were consistent with the history of Plaintiff’s injury and with his
objective findings. (R. 283, 285.) Dr. Nangia stated that Plaintiff had a fifty percent disability
and could not work due to the injuries he sustained on January 19, 2009. (Id.)

10

On February 8, 2010, Dr. Nangia performed nerve conduction studies on Plaintiff, which
revealed evidence of “right L5 S1 radiculopathy.” (R. 433.)
On October 22, 2010, Dr. Nangia had a follow up visit with Plaintiff. (R. 423–25.) Dr.
Nangia noted that Plaintiff’s symptoms showed “no improvement” and that Plaintiff fractured his
left knee on October 19, 2010, for which he received treatment at St. Vincent’s Hospital.
(R. 423.) Dr. Nangia examined Plaintiff and determined that Plaintiff had cervical and
lumbosacral radiculopathy and stated that Plaintiff had a fifty percent permanent total disability
and was unable to work because of his “persistent neurological symptoms.” (R. 425.)
v.

Dr. Jonathan Gordon, M.D.

On October 6, 2009, Dr. Jonathan Gordon, M.D., an orthopedic surgeon at Beth Israel
Medical Center, examined Plaintiff. (R. 343–44.) Dr. Gordon noted that Plaintiff’s neck and
lower back pain had worsened 6 and observed that Plaintiff was not in “apparent distress during
the examination.” (R. 343.) He determined that Plaintiff’s neck “show[ed] flexion to [thirty
degrees], extension to [zero degrees], and lateral bending to [twenty degrees].” (Id.) Plaintiff’s
lower back “show[ed] flexion to [ninety degrees], extension to [zero degrees] and lateral bending
to [twenty degrees].” (Id.) Dr. Gordon noted paraspinal pain, spasms and tenderness of both
Plaintiff’s neck and lower back. (Id.) He diagnosed Plaintiff with lower back strain and cervical
spine strain and recommended that Plaintiff start physical therapy sessions. (R. 344.)
On October 9, 2009, Dr. Gordon completed a report in connection with Plaintiff’s
workers’ compensation claim. (R. 296–97.) Based on his October 6, 2009 examination of
Plaintiff, Dr. Gordon diagnosed Plaintiff with sciatica and a thoracic sprain and rated Plaintiff’s

6

Dr. Gordon’s notes refer to the October 6, 2009 examination of Plaintiff as a “follow
up” examination but there is no evidence of an earlier visit in the record.

11

impairment as one hundred percent. (Id.) Dr. Gordon noted that Plaintiff could not return to
work for three to seven days due to his pain. (R. 297.)
vi. Dr. Andrew Davy, M.D.
On October 13, 2009, Dr. Andrew Davy, M.D., a pain medicine specialist, had an initial
consultation with Plaintiff. (R. 412–15.) Plaintiff told Dr. Davy that he constantly felt pain in
his neck and lower back. (R. 412.) Plaintiff rated the intensity of the pain in his neck as a nine
on a scale of ten and rated the pain in his lower back, which radiated to Plaintiff’s right leg, as an
eight on a scale of ten. (Id.) Dr. Davy examined Plaintiff and observed that Plaintiff’s gait was
antalgic to the left. (R. 414.) Dr. Davy observed that Plaintiff experienced pain on forward
flexion and experienced “increased pain” on extension of the lumbosacral spine. (Id.) A straight
leg raising test was positive on the left. (Id.) Dr. Davy observed that Plaintiff’s neck and
shoulders exhibited “multiple myofascial trigger points” and that Plaintiff’s facet joints were
tender. (Id.) He also noted that there was no atrophy, fasciculations or allodynia in Plaintiff’s
upper or lower extremities. (Id.) Dr. Davy diagnosed Plaintiff with “low[er] back pain
secondary to lumbar post-traumatic disc pathology,” “lumbar radiculopathy,” “neck pain
secondary to cervical post-traumatic disc pathology,” “cervical radiculopathy,” and “multiple
myofascial trigger points.” (Id.) Dr. Davy noted that he “[could] not rule out facet syndrome.”
(Id.) He concluded that Plaintiff had a “marked partial disability” as a result of the workplace
accident that Plaintiff suffered on January 19, 2009. (R. 415.) He recommended that Plaintiff
receive diagnostic facet nerve injections and epidural steroid injections in his neck and lower
back. (R. 414–15.)

12

vii. Dr. Solomon Miskin, M.D.
On August 13, 2010, Dr. Solomon Miskin, M.D., of Industrial Medicine Associates,
conducted a psychiatric examination of Plaintiff. (R. 354–57.) Dr. Miskin noted that Plaintiff
reported that his lower back injury resulted in pain, discomfort, limited mobility and “associated
bouts of frustration and disappointment.” (R. 355.) Dr. Miskin observed that Plaintiff was “alert
and oriented in all spheres” and that Plaintiff’s speech, response time, comprehension, affect,
mood, sensorium, memory, insight, and judgment were all “clear” or “good.” (R. 356.) He saw
“no overt evidence of a thought disorder.” (Id.) Dr. Miskin diagnosed Plaintiff with
“[a]djustment disorder with mixed emotional features” of “mild to very mild severity.” (Id.)
viii. Dr. Mamdouh Lozah, M.D.
On September 3, 2010, Dr. Mamdouh Lozah, M.D., an internist at Staten Island
Physician Practice, examined Plaintiff. (R. 437–39.) Plaintiff complained of lower back pain,
which he rated a four on a scale of ten. (R. 437.) Plaintiff told Dr. Lozah that the pain did not
radiate, was aggravated by twisting or walking, and was relieved by pain medication and rest.
(Id.) Upon examining Plaintiff, Dr. Lozah observed that Plaintiff’s neck was “supple” and that
his thyroid was symmetrical, “without thyromegaly, masses or palpable nodules.” (R. 438.) Xrays of the lumbar spine taken that day revealed “[m]inimal osteophytic spurring” but were
“[o]therwise unremarkable.” (R. 436.) Dr. Lozah diagnosed Plaintiff with a “backache” and
prescribed Zanaflex, Mobic and Hydrocodone-acetaminophen, as well as a Toradol injection.
(R. 438–39.)
On September 27, 2010, Dr. Lozah had a follow up visit with Plaintiff. (R. 441–42.) Dr.
Lozah observed muscle spasms in Plaintiff’s lumbar spine and that Plaintiff experienced
“moderate pain w[ith] motion.” (R. 442.) Dr. Lozah diagnosed Plaintiff with having a disc

13

disorder in Plaintiff’s lumbar region and prescribed Arthortec and Flexeril. (Id.) He referred
Plaintiff to Dr. Jack D’Angelo. (Id.)
ix. Dr. Jack D’Angelo, M.D.
On October 20, 2010, Dr. Jack D’Angelo, M.D., a physiatrist at Forest Rehabilitation
Medicine, examined Plaintiff. (R. 470–74.) Plaintiff complained of constant lower back pain
that radiated down both legs, and constant neck pain and stiffness that caused numbness in his
left hand. (R. 470.) Plaintiff reported that visiting his chiropractor and performing physical
therapy relieved his pain only temporarily. (Id.) Upon examining Plaintiff, Dr. D’Angelo
observed that Plaintiff walked with a cane and had a stiff gait. (R. 471.) Plaintiff’s cervical
spine showed flexion of forty degrees and extension of thirty degrees with pain, and Dr.
D’Angelo noted “trigger points along the left scapular border with reproducible referred pain in
the left arm,” which was “diffuse throughout the cervical paraspinals.” (Id.) Plaintiff’s lumbar
spine showed flexion of seventy degrees and extension of five degrees with pain, and Dr.
D’Angelo noted “loss of normal lordosis.” (Id.) Dr. D’Angelo also noted that a straight leg
raising test was positive for back pain. (Id.) Dr. D’Angelo diagnosed Plaintiff with “lumbar disc
disease with radicular signs,” “cervical strain” and “muscle spasm with myofascial pain.”
(R. 471 (capitalization omitted).) He determined that Plaintiff was “clearly disabled.” (R. 472.)
Dr. D’Angelo treated Plaintiff’s “lumbar spine region” with a “TMR 1200,” a medical device
that uses “ultra-high frequency pulsed therapy” to relieve Plaintiff’s pain. (R. 472–74.)
On November 17, 2010, Dr. D’Angelo examined Plaintiff and noted that the TMR 1200
treatment resulted in “improvement in [Plaintiff’s] pain thresholds and functional tolerance” and
performed another treatment with the TMR 1200. (R. 475–79.) Dr. D’Angelo affirmed his
diagnosis of “lumbar disc disease with radicular signs,” “cervical strain” and “muscle spasm with

14

myofascial pain.” (R. 476 (capitalization omitted).) He also affirmed his determination that
Plaintiff was “clearly disabled.” (R. 477.)
x.

Dr. David Puro, Psy.D.

On May 23, 2012, Dr. David Puro, Psy.D., a psychologist, examined Plaintiff. (R. 480–
87.) Dr. Puro noted that Plaintiff reported experiencing depression, stress, tension, difficulty
concentrating, sleep disturbances, headaches, vocational problems, low energy, sad mood,
forgetfulness and loss of appetite. (R. 481.) Dr. Puro observed that Plaintiff’s gait was normal,
his posture was tense, his motor behavior was restless, his mood was anxious and depressed, and
that Plaintiff exhibited mild distress. (R. 481–82.) Dr. Puro also observed signs of anxiety but
no indication of delusions or hallucinations and noted that Plaintiff’s attention and concentration
skills were impaired. (R. 482.) Upon examining Plaintiff, Dr. Puro determined that Plaintiff was
experiencing moderate depression, a moderate level of distress, minimal anxiety, and a minimal
sense of hopelessness. (R. 484–85.) Dr. Puro diagnosed Plaintiff with “adjustment disorder with
depression,” and he recommended that Plaintiff participate in psychotherapy. (R. 487
(capitalization omitted).)
On August 28, 2012, Dr. Puro completed a mental functional capacity assessment.
(R. 448–51.) Dr. Puro stated that he had been treating Plaintiff on a bi-weekly basis since May
23, 2012. (R. 448.) He described Plaintiff as “severely depressed, anxious and agitated” and
noted that Plaintiff had problems sleeping, concentrating and focusing. (Id.) Dr. Puro
determined that Plaintiff was able to minimally function outside the home and noted that Plaintiff
had experienced three or more episodes of decompensation. (Id.) Dr. Puro also determined that
Plaintiff had moderate limitations to his abilities to: understand, remember and carry out
instructions; respond appropriately to supervision; respond to co-workers; satisfy an employer’s

15

normal quality, production and attendance standards; respond to customary work pressure; and
perform simple tasks on a sustained basis. (R. 449–50.) Dr. Puro further determined that
Plaintiff had marked limitations in his activities of daily living and social functioning, and that he
had severe deficiencies in his concentration, persistence and pace, which would make Plaintiff
unable to complete tasks in a timely manner. (R. 450.) Dr. Puro determined that Plaintiff was
incapable of tolerating “low” work stress and that Plaintiff would likely miss more than three
days of work each month. (Id.) Dr. Puro also determined that Plaintiff would have difficulty
working at a regular job on a sustained basis because he was totally disabled. (R. 451.)
xi. Dr. Chitoor Govindaraj
On December 15, 2009, Plaintiff underwent a consultative examination with Dr. Chitoor
Govindaraj, M.D., after a referral from the New York State Division of Disability
Determinations. (R. 303.) Plaintiff complained of neck and back pain and told Dr. Govindaraj
that he was engaging in physical therapy sessions three times each week for “low[er] back pain,
stiffness of the neck, [and] right thumb numbness.” (Id.) Dr. Govindaraj noted that Plaintiff had
a history of “EMG nerve conduction of the left lower and left upper extremity.” (R. 304.)
Upon examining Plaintiff, Dr. Govindaraj determined that Plaintiff’s spine showed a
normal range of motion, except for “voluntary hold,” and he observed no kyphoscoliosis, gibbus
or tenderness. (R. 305.) Dr. Govindaraj examined Plaintiff’s central nervous system and
observed that Plaintiff’s “[r]ange of motion of the back and joints is normal” and that, while
seated, Plaintiff was able to “flex both hip joints against resistance with no pain in the lumbar
area,” and extend both knees “against resistance with no pain in the lumbar area.” (Id.) Dr.
Govindaraj found no evidence of “subluxation, contractures, ankylosis, instability, redness, heat
or swelling.” (Id.) He observed that Plaintiff’s gait and posture were normal and that Plaintiff

16

did not need a cane for ambulation. (Id.) Dr. Govindaraj determined that Plaintiff had a history
of bulging disc at L5–S1 and that Plaintiff was “currently stable for occupation.” (R. 305.)
c.

Additional evidence
i.

Sandip Patel, physical therapist

On December 23, 2009, Sandip Patel, a physical therapist at Neuro Rehabilitation
Medical Services, evaluated Plaintiff’s functional capacity. (R. 397–401.) He noted that
Plaintiff rated the pain in his back and neck as a seven on a scale of ten and reported that the pain
caused numbness in his left hand and leg. (R. 398.) Patel observed that Plaintiff’s “[b]ilateral
upper extremity coordination” and “[b]ilateral grip” were within “normal” limits and that
Plaintiff was able to stand for about twenty minutes. (Id.) Patel determined that Plaintiff had a
decreased range of motion in his neck and lower back, decreased tolerance for sitting upright,
decreased ability for activities above shoulder level, an inability to lift more than ten pounds,
increased lower back pain, “trunk instability,” and a loss of balance when Plaintiff exerted
“strong effort[].” (Id.) Patel also determined that Plaintiff could lift, push, pull or carry ten
pounds for “1–5 percent of [an] 8 hour day”; could sit, squat, kneel or crawl for “6–33 percent of
[an] 8 hour day”; and could stand, walk or climb stairs for “34–66 percent of [an] 8 hour day.”
(R. 400–01.) Patel concluded that Plaintiff’s functional capacities did not meet the “minimal job
requirement.” (R. 399.)
ii.

Dennis Guttman, L.C.S.W.

On January 29, 2010, Dennis Guttman, a licensed clinical social worker at Anxiety
Alternatives, evaluated Plaintiff. (R. 330.) Guttman noted that Plaintiff was in constant pain,
which was “amplified by his psychological state.” (Id.) Guttman also noted that Plaintiff was
worried that he would not be able to return to work and support his family. (Id.) Guttman
diagnosed Plaintiff with depressive disorder and recommended weekly psychotherapy. (Id.)
17

iii. Function report
On October 22, 2009, Plaintiff completed a “Function Report,” detailing his activities and
limitations. (R. 234–48.) According to this report, Plaintiff first started experiencing pain “on
January 19, the day of the accident.” (R. 242.) Plaintiff described the pain in his neck and lower
back as “stabbing,” “pinching,” “stiff” and “cramping.” (R. 242–43.) He stated that his pain
radiates to his legs and left hand. (R. 243.)
Plaintiff lives in an apartment with his family. (R. 235.) During the day, Plaintiff gets
up, walks around, and does physical therapy for his back. (R. 236.) Plaintiff’s back pain affects
his sleep, prevents him from putting on his shoes and sometimes his shirt, requires him to get
help when washing himself, and prevents him from standing too long in the shower. (Id.)
Plaintiff has difficulty preparing meals because standing, bending and kneeling are painful.
(R. 237.) Plaintiff’s wife prepares his meals. (Id.) Plaintiff’s back pain prevents him from
working inside the house or in the yard. (R. 238.) He does not go out of his home alone because
he “sometimes” feels severe back pain that prevents him from walking. (Id.) Plaintiff can walk
“about half a block” before having to stop and rest. (R. 241.) When Plaintiff goes shopping, his
children carry the bags. (R. 239.) Plaintiff goes to church but is unable to sit for a long period
and has to stand and walk around. (Id.) Plaintiff cannot lift anything heavy, stand, sit, walk for a
long period, or kneel or squat. (R. 240.) Walking, standing and sitting for too long exacerbates
Plaintiff’s pain. (R. 243.) Plaintiff uses an artificial limb for his missing right hand and a back
brace, both of which were prescribed by his doctors. (Id.)
iv. Residual functional capacity assessment
On February 1, 2010, “M. Sloane” reviewed Plaintiff’s medical file and completed a
residual functional capacity (“RFC”) assessment, diagnosing Plaintiff with a history of bulging

18

disks, L5–S1, “neck sprain and strain.” (R. 310.) Sloane noted multiple exertional limitations,
including Plaintiff’s ability to (1) “lift and/or carry” twenty pounds occasionally and ten pounds
frequently, (2) “stand and/or walk” with normal breaks for a total of “about” six hours in an
eight-hour workday, (3) sit with normal breaks for a total of “about” six hours in an eight-hour
workday, and (4) “push and/or pull,” which was “limited in lower extremities.” (R. 311.)
Sloane based his findings on his review of a December 15, 2009 “examination report” from
Brook-Island Medical Group, which noted that Plaintiff’s “spine range of motion, except for
voluntary hold, [wa]s WNL,” and an X-ray of Plaintiff’s lumbosacral spine, which “reveal[ed]
mild anterior osteophytic spurring at L3–4.” (R. 311.) Sloane also determined that Plaintiff’s
postural limitations limited him to occasionally climbing ramps or stairs, balancing, stooping,
kneeling, crouching or crawling. (R. 311–12.) Sloane further found that Plaintiff’s manipulative
limitations were due to “numbness of [Plaintiff’s] right thumb” and that Plaintiff had “limited”
fine manipulation. (R. 312.) Sloane did not observe any visual, communicative or
environmental limitations. (R. 312–13.)
d.

Vocational expert testimony

Vocational expert Pat Green testified by telephone at the September 26, 2012 hearing.
(R. 108–68.) Green testified that Plaintiff’s job as an HVAC installer and servicer was skilled
work at a heavy to very heavy level, with a specific vocational preparation (“SVP”) of seven.
(R. 115–16.) His job as a security guard was semi-skilled work at a light level with an SVP of
three. (R. 116.) Green also determined that Plaintiff’s work in home improvement, which Green
defined as construction, was skilled work at a medium level with an SVP of seven. (Id.)
The ALJ asked Green to consider a hypothetical individual “of [Plaintiff’s] age,
education, and work experience . . . who is limited to a reduced range of light work.” (R. 117.)
The ALJ included the following limitations in his hypothetical: “lift/carry up to 20 pounds
19

occasionally and 10 pounds frequently; stand and walk for approximately five hours per eighthour work day and sit for approximately five hours per eight-hour work day . . . can push or pull
only occasionally using the upper extremities.” (Id.) The ALJ added the “following postural
limitations: [n]ever climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs;
occasionally stoop; occasionally crouch; occasionally kneel; occasionally crawl” as well as a
complete lack of gross and fine manipulation with the non-dominant right hand. (Id.) He also
added environmental limitations, stating that the “hypothetical individual must avoid
concentrated exposure to irritants such as fumes, odors, dust, and gases.” (Id.) Finally, the ALJ
included the following mental health limitations: “such individual is limited to work in a
low-stress job, which is defined as having only decision making required and such individual
cannot work in a fast-paced work environment, which is defined as constant activity with work
task performed sequentially in rapid succession.” (R. 117–18.)
Green testified that an individual with such limitations could not work as an HVAC
installer or servicer, a security guard or in construction. (R. 118.) The ALJ asked Green whether
there were “other jobs in the economy that such an individual could perform,” and Green
testified that such an individual could work as an addresser and as an order clerk, which have an
SVP of two. (R. 118–19.)
The ALJ presented another hypothetical, asking Green to assume the first hypothetical
person, but added that the hypothetical person could “sit or stand alternatively at will, provided
that the person is not off task more than 5 percent of the work period,” “is limited to simple,
routine tasks,” and could only occasionally be required to exercise judgment on the job.
(R. 120–21.) Green testified that the added limitations would eliminate the two jobs he cited
before, addresser and order clerk. (R. 122.)

20

e.

The ALJ’s decision

The ALJ conducted the five-step sequential analysis as required by the Social Security
Administration (“SSA”) under the authority of the Act. First, the ALJ found that Plaintiff had
not engaged in substantial activity during the period from the alleged onset date of his disability,
January 19, 2009, through the date on which Plaintiff last met the insured status requirement,
September 30, 2010. (R. 18.) Second, the ALJ found that Plaintiff had the following severe
impairments: “a neck impairment, a lower back impairment, status post right hand amputation,
asthma, arthritis, and a depressive disorder.” (Id.)
Third, the ALJ determined that Plaintiff does not have an impairment or combination of
impairments that meets or equals the severity of one of the impairments listed in Appendix 1 of
the SSA Regulations. (R. 19.) The ALJ found that the medical evidence failed to establish
findings or symptoms severe enough to qualify under Listing 1.02(B) (Joint Disorders); Listing
1.04 (Spine Disorders); or Listing 3.03 (Asthma). (Id.) The ALJ also found that
Plaintiff’s mental impairment did not meet the criteria under Listing 12.04 (Affective Disorders).
(R. 19–20.) In determining that Plaintiff’s mental impairment did not meet the criteria, the ALJ
gave “little weight” to Dr. Puro’s August 2012 opinion because there was “no evidence of
significant limitations” prior to September 30, 2010, Plaintiff’s last insured date. (R. 20.)
Fourth, the ALJ determined “that, through the date last insured, [Plaintiff] had the
residual functional capacity to perform light work,” subject to the following limitations:
standing/walking limited to 5 hours total in an 8 hour workday;
sitting limited to 5 hours in an 8 hour workday; the ability to push
and pull items occasionally; the inability to climb ladders, ropes, or
scaffolds; the ability to occasionally climb ramps or stairs; the
ability to occasionally stoop, crouch, kneel, and crawl; the
complete inability to handle objects (gross manipulation), finger
objects (fine manipulation), or feel objects with the right hand; the
need to avoid concentered exposure to bronchial irritants such as
fumes, odors, dust, and gases; the ability to perform only a low
21

stress job defined as having no more than occasional
decision-making required; and the inability to work in a fast-paced
work environment defined as constant activity with work tasks
performed sequentially in rapid succession.
(R. 20.) The ALJ concluded that, although Plaintiff’s “medically determinable impairments
could reasonably be expected” to cause Plaintiff’s symptoms, Plaintiff’s statements concerning
“the intensity, persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in [his] decision.” (R. 21.)
In reaching this conclusion, the ALJ relied on Dr. D’Angelo’s physical examination,
Patel’s December 2009 physical therapy evaluation, and Dr. Nangia’s March 2009, October
2009, and October 2010 examinations. (R. 21–22.) The ALJ found that “the objective testing in
the record does not support a finding that [Plaintiff] cannot perform any work at all,” based on
the results of a February 2009 MRI of Plaintiff’s cervical and lumbosacral spine, lumbosacral
x-rays and nerve conduction studies. (R. 22.) The ALJ noted that, in September of 2009,
Plaintiff reported to Dr. Piazza that Plaintiff’s lower back pain was improving as a result of
physical therapy, and he also noted that Plaintiff refused “treatments such as epidural injections”
in spite of his “doctor’s recommendations that this would be helpful for his particular condition.”
(Id.)
The ALJ accorded “little weight” to the opinions of Dr. Nangia, Dr. Davy and Dr. Piazza
that Plaintiff was “totally disabled from all work” because they “impinge on an issue that is
strictly reserved to the Commissioner.” (Id.) The ALJ noted that the findings of the worker’s
compensation board was not binding on him and that, in any event, his findings were not
“inconsistent” with the worker’s compensation board’s finding that Plaintiff is “partially”
disabled. (Id.)

22

Finally, the ALJ determined that Plaintiff was unable to perform his past relevant work as
an HVAC installer or servicer, security guard or carpenter, because those jobs require tasks that
exceed Plaintiff’s RFC. (R. 23.) The ALJ stated that, given Plaintiff’s age, education, work
experience, RFC and the vocational expert’s testimony that an individual with Plaintiff’s RFC
could perform work as an addresser and order clerk, there were a significant number of jobs in
the national economy that Plaintiff could perform. (R. 24.) The ALJ therefore concluded that,
during the period from January 19, 2009 through September 30, 2010, Plaintiff was not suffering
from a “disability” as defined under the Act. (R. 25.)
II. Discussion
a.

Standard of review

“In reviewing a final decision of the Commissioner, a district court must determine
whether the correct legal standards were applied and whether substantial evidence supports the
decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), as amended on reh’g in part,
416 F.3d 101 (2d Cir. 2005); see also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam). “Substantial evidence is ‘more than a mere scintilla’ and ‘means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Lesterhuis v. Colvin,
805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971));
McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (same). Once an ALJ finds facts, the court
“can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault
v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks
omitted). In deciding whether substantial evidence exists, the court “defer[s] to the
Commissioner’s resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d
118, 122 (2d Cir. 2012); McIntyre, 758 F.3d at 149 (“If evidence is susceptible to more than one
rational interpretation, the Commissioner’s conclusion must be upheld.”). The Commissioner’s
23

factual findings “must be given conclusive effect so long as they are supported by substantial
evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotations
omitted). If, however, the Commissioner’s decision is not supported by substantial evidence or
is based on legal error, a court may set aside the decision of the Commissioner. Box v. Colvin,
3 F. Supp. 3d 27, 41 (E.D.N.Y. 2014); see Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
“In making such determinations, courts should be mindful that ‘[t]he Social Security Act is a
remedial statute which must be ‘liberally applied’; its intent is inclusion rather than exclusion.’”
McCall v. Astrue, No. 05-CV-2042, 2008 WL 5378121, at *8 (S.D.N.Y. Dec. 23, 2008)
(alteration in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).
b.

Availability of benefits

Federal disability insurance benefits are available to individuals who are “disabled”
within the meaning of the Social Security Act. To be eligible for disability benefits under the
Act, the plaintiff must establish his or her inability “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be of “such severity that 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.” Id. § 423(d)(2)(A). The Commissioner has promulgated a five-step analysis for
evaluating disability claims. 20 C.F.R. § 404.1520. The Second Circuit has described the steps
as follows:
The first step of this process requires the [Commissioner] to
determine whether the claimant is presently employed. If the
claimant is not employed, the [Commissioner] then determines
whether the claimant has a “severe impairment” that limits her
capacity to work. If the claimant has such an impairment, the
24

[Commissioner] next considers whether the claimant has an
impairment that is listed in Appendix 1 of the regulations. When
the claimant has such an impairment, the [Commissioner] will find
the claimant disabled. However, if the claimant does not have a
listed impairment, the [Commissioner] must determine, under the
fourth step, whether the claimant possesses the residual functional
capacity to perform her past relevant work. Finally, if the claimant
is unable to perform her past relevant work, the [Commissioner]
determines whether the claimant is capable of performing any
other work. If the claimant satisfies her burden of proving the
requirements in the first four steps, the burden then shifts to the
[Commissioner] to prove in the fifth step that the claimant is
capable of working.
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996)); see also Lesterhuis, 805 F.3d at 86 n.2 (describing the “five-step sequential
evaluation for adjudication of disability claims, set forth at 20 C.F.R. § 404.1520”).
c.

Analysis

The Commissioner moves for judgment on the pleadings, arguing that the ALJ’s
determination that Plaintiff was not disabled is supported by substantial evidence. (Comm’r
Mem. 1.) Plaintiff cross-moves for judgment on the pleadings, arguing that the ALJ erred in
(1) his determination at Step Three that Plaintiff’s impairments did not meet or medically equal
one of the impairments listed in Appendix 1 of the SSA regulations, (2) his assessment of
Plaintiff’s RFC and (3) his assessment of Plaintiff’s credibility. (Pl. Mem. 1.) Plaintiff also
argues that the Court should remand solely for the purpose of calculation of benefits. (Id.)
i.

The ALJ’s Step Three analysis

Plaintiff argues that medical evidence in the record demonstrates that his cervical and
lumbar spine impairments meet the criteria included in Listing 1.04(A), relating to disorders of
the spine. (Pl. Mem. 19.)
The third step of the five-step analysis for evaluating disability claims requires an ALJ to
determine whether a claimant’s impairment meets the criteria of any of the impairments listed in
25

Appendix 1 of the SSA regulations. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The impairments
listed in Appendix 1 are “acknowledged by the [Commissioner] to be of sufficient severity to
preclude gainful employment,” and therefore, if a claimant’s impairment meets or equals “the
‘listed’ impairments, he or she is conclusively presumed to be disabled and entitled to benefits.”
DiPalma v. Colvin, 951 F. Supp. 2d 555, 570 (S.D.N.Y. 2013) (quoting Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995)). “For a claimant to show that his impairment matches a
listing, [the impairment] must meet all of the specified medical criteria. An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990); Lipsett v. Colvin, No. 13-CV-1746, 2016 WL 912163, at *5
(D. Conn. Mar. 7, 2016) (quoting Sullivan, 493 U.S. at 530). A claimant’s impairment is the
medical equivalent of a listed impairment “if it is ‘at least equal in severity and duration to the
criteria of any listed impairment.’” Wood v. Colvin, 987 F. Supp. 2d 180, 192 (N.D.N.Y. 2013)
(quoting 20 C.F.R. § 404.1526(a)).
Listing 1.04(A) provides in pertinent part:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root (including the cauda equina) or the
spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising
test (sitting and supine) . . . .
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.04. In order to meet this listing, a claimant must
establish that he or she suffers from “a disorder of the spine which compromises a nerve root or
the spinal cord” and that this impairment produces “neuro-anatomic distribution of pain,

26

limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and supine).” McKinney v. Astrue,
No. 05-CV-0174, 2008 WL 312758, at *4 (N.D.N.Y. Feb. 1, 2008).
In support of his determination that Plaintiff’s impairments did not meet Listing 1.04, the
ALJ stated that “none of the medical records establishes findings or symptoms severe enough to
qualify under listing 1.04.” (R. 19.) The ALJ did not engage in any further discussion as to this
Listing. (See id.) The ALJ’s explanation for his determination with respect to Listing 1.04 is
conclusory and therefore prevents the Court from assessing whether this determination is
supported by substantial evidence. See Cherico v. Colvin, No. 12-CV-5734, 2014 WL 3939036,
at *28 (S.D.N.Y. Aug. 7, 2014) (remanding where the ALJ supported his step three
determination by “stat[ing], in entirely conclusory terms, . . . ‘that the objective medical evidence
of record does not support a finding that the claimant experienced symptoms or limitations of a
severity sufficient to meet’” Listing 1.04 because “[t]his mode of explanation [wa]s patently
inadequate”); Wood, 987 F. Supp. 2d at 192 (remanding where the ALJ supported his or her step
three determination by stating only that the “medical evidence does not document listing-level
severity, and no acceptable medical source has mentioned findings equivalent in severity to the
criteria of any listed impairment, individually or in combination” because “[b]ased on this scant
explanation” the court could not determine whether the ALJ’s “conclusion [wa]s supported by
substantial evidence”).
The record contains medical evidence that suggests that Plaintiff’s impairments meet
Listing 1.04(A). For example, Dr. Davy noted that a straight leg-raising test and a “Spurling”
test were both positive, (R. 413), as did Dr. Nangia, (R. 341). The nerve conduction studies that

27

Dr. Nangia performed both revealed evidence of radiculopathy. (R. 338, 377.) Plaintiff
consistently reported that his back pain radiated and caused numbness in his arms and legs, (e.g.,
R. 592), and Dr. Nangia twice noted that Plaintiff had diminished sensation in his left arm, (R.
326, 425.) Dr. Nangia and Dr. Gordon both noted that Plaintiff’s spine showed limited ranges of
motion.7 (R. 341, 343.) Because the Court cannot determine whether the ALJ’s Step Three
determination is supported by substantial evidence, and because the evidence in the record
suggests that the ALJ’s decision is not supported by substantial evidence, the Court remands this
matter for further administrative proceedings. See Nelson v. Colvin, 114 F. Supp. 3d 69, 73
(W.D.N.Y. 2015) (“Because I find that there is substantial evidence in the record which might
satisfy the requirements of Listing 1.04, and because the ALJ failed to set forth any analysis of,
or explanation for, his finding that Listing 1.04 was not satisfied, the matter is remanded for
further proceedings.”); Cherico, 2014 WL 3939036, at *28 (“There is record support for each of
these symptoms. Necessarily, then, the ALJ was required to address that evidence, and his
failure to specifically do so was error that would justify a remand.”); Wood, 987 F. Supp. 2d at

7

Plaintiff contends that the September 4, 2013 MRI establishes nerve root compression.
(Pl. Mem. 20.) The Commissioner argues that the Appeals Council properly determined that this
evidence, which was not before the ALJ but was submitted only to the Appeals Council, does not
relate to the relevant period and, therefore, does not render the ALJ’s decision contrary to the
weight of the evidence. (Comm’r Mem. 30–31.) “The Appeals Council, in reviewing a decision
based on an application for benefits, will consider new evidence only if (1) the evidence is
material, (2) the evidence relates to the period on or before the ALJ’s hearing decision, and
(3) the Appeals Council finds that the ALJ’s decision is contrary to the weight of the evidence,
including the new evidence.” Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010) (citing
20 C.F.R. § 416.1470). Because the September 4, 2013 MRI occurred almost three years after
September 30, 2010, Plaintiff’s last insured date, (R. 2), the Appeals Council properly found that
the MRI did not relate to the relevant period, see Guile v. Barnhart, No. 07-CV-259, 2010 WL
2516586, at *1–2 (N.D.N.Y. June 14, 2010) (holding that an MRI that occurred seven months
after the ALJ’s decision did not relate to the relevant period because “it provide[d] only a
snapshot of [the claimant’s] condition several months after the ALJ’s decision” and did not
“offer any retrospective opinion as to [the claimant’s] condition during the relevant period”).

28

195 (“The Court cannot discern whether the [ALJ’s] decision was based on the correct
application of legal principles or is supported by substantial evidence and therefore remands the
matter for further development of the record.” (citing Parker v. Harris, 626 F.2d 225, 235 (2d
Cir. 1980))).
ii.

The ALJ’s RFC determination

Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence because he improperly accorded reduced weight to the opinions of Dr. Nangia, Dr.
Davy and Dr. Piazza, and because he failed to consider medical evidence contained in the reports
of Dr. Piazza, Dr. Davy and Dr. Gordon. (Pl. Mem. 24–26.) The Commissioner argues that the
ALJ properly discounted the opinions of Dr. Nangia, Dr. Davy and Dr. Piazza because their
opinions were legal conclusions that were not entitled to any deference. (Comm’r Mem. 24–25.)
“[A] treating physician’s statement that the claimant is disabled cannot itself be
determinative.” Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)
(same). But a treating physician’s opinion as to the “nature and severity” of a plaintiff’s
impairments will be given “controlling weight” if the opinion is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the plaintiff’s] case record.”8 20 C.F.R. § 404.1527(c)(2); see
Lesterhuis, 805 F.3d at 88 (discussing the treating physician rule); Petrie v. Astrue, 412 F. App’x
401, 405 (2d Cir. 2011) (“The opinion of a treating physician is accorded extra weight because

8

A treating source is defined as a plaintiff’s “own physician, psychologist, or other
acceptable medical source” who has provided plaintiff “with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with [the plaintiff].” 20 C.F.R.
§ 404.1502; see also Bailey v. Astrue, 815 F. Supp. 2d 590, 597 (E.D.N.Y. 2011).

29

the continuity of treatment he provides and the doctor/patient relationship he develops place[s]
him in a unique position to make a complete and accurate diagnosis of his patient.” (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).
An ALJ must consider a number of factors to determine how much weight to assign a
treating physician’s opinion, including: “(1) the frequen[cy], length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.”
Selian, 708 F.3d at 418 (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)); see also
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2) and
discussing the factors). The ALJ must set forth the reasons for the weight assigned to the
treating physician’s opinion. Halloran, 362 F.3d at 32. While the ALJ is not required to
explicitly discuss the factors, it must be clear from the decision that the proper analysis was
undertaken. See Petrie, 412 F. App’x at 406 (“[W]here ‘the evidence of record permits us to
glean the rationale of an ALJ’s decision, we do not require that he have mentioned every item of
testimony presented to him or have explained why he considered particular evidence
unpersuasive or insufficient to lead him to a conclusion of disability.’” (quoting Mongeur, 722
F.2d at 1040)). Failure “to provide good reasons for not crediting the opinion of a claimant’s
treating physician is a ground for remand.” Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77
(2d Cir. 2012); see also Halloran, 362 F.3d at 32–33 (“We do not hesitate to remand when the
Commissioner has not provided ‘good reasons’ or the weight given to a treating physicians[’]
opinion . . . .”).
The ALJ gave “little weight” to the opinions of Dr. Nangia, Dr. Davy and Dr. Piazza,
“who opined that the claimant is totally disabled from all work.” (R. 22.) The ALJ did not

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commit any error in disregarding the opinions from these doctors that Plaintiff was totally
disabled. See Taylor v. Barnhart, 83 F. App’x 347, 349 (2d Cir. 2003) (noting that a treating
physician’s opinion that the claimant “was ‘temporarily totally disabled’ [wa]s not entitled to any
weight, since the ultimate issue of disability is reserved for the Commissioner” (first citing
20 C.F.R. § 404.1527(e)(1); and then citing Snell, 177 F.3d at 133)). However, although
“[r]eserving the ultimate issue of disability to the Commissioner relieves the Social Security
Administration of having to credit a doctor’s finding of disability,” this does not “exempt
administrative decisionmakers from their obligation, under [the treating physician rule], to
explain why a treating physician’s opinions are not being credited.” Snell, 177 F.3d at 134;
Austin v. Colvin, No. 14-CV-861, 2016 WL 335255, at *5 (W.D.N.Y. Jan. 28, 2016) (quoting
Snell, 177 F.3d at 134)). Thus, the ALJ was still required to explain his reasoning for giving
reduced weight to the medical findings and opinions of Dr. Nangia, Dr. Piazza and Dr. Davy.
See Leroy v. Colvin, 84 F. Supp. 3d 124, 133–34 (D. Conn. 2015).
In reaching the conclusion that Dr. Nangia’s opinion merited only little weight, the ALJ
considered and weighed the medical evidence contained in Dr. Nangia’s reports. (R. 22.) For
example, the ALJ noted that the objective testing conducted by Dr. Nangia established that
Plaintiff was “preclude[d] from performing his past work” but that it did “not support a finding
that he cannot perform any work at all.” (Id. (comparing the February 2009 MRI with the nerve
conduction studies performed by Dr. Nangia).) The ALJ therefore provided a basis for giving
reduced weight to Dr. Nangia’s opinion. See Illenberg v. Colvin, No. 13-CV-9016, 2014 WL
6969550, at *20 (S.D.N.Y. Dec. 9, 2014) (“Under the treating physician’s rule, it is ‘within the
province of the ALJ’ to resolve conflicts in the medical evidence in light of all evidence in the
record.” (quoting Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002))).

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However, the ALJ failed to properly explain why he gave little weight to the opinions of
Dr. Piazza 9 and Dr. Davy. As to Dr. Piazza, the ALJ only mentioned Dr. Piazza once, noting
“that during a September 2009 examination with Dr. John Piazza, the claimant reported that his
lower back pain was getting progressively better.” (R. 22.) The ALJ erroneously failed to
consider Dr. Piazza’s examination findings and opinions and failed to properly explain why he
gave them little weight. For example, upon examining Plaintiff’s spine, Dr. Piazza repeatedly
found “subluxation” at various points along the spine, “edema,” “myospasms,” “hypertonicity,”
“trigger points,” and noted that “Deerfield” tests and straight leg raising tests were positive.
(E.g., 538, 544, 557, 576, 583.) Before according Dr. Piazza’s findings and opinions little
weight, the ALJ was required to consider this evidence in order to properly explain his reason for
why it merited little weight. See Poles v. Colvin, No. 14-CV-6622, 2015 WL 6024400, at *4
(W.D.N.Y. Oct. 15, 2015) (holding that, where the ALJ omitted records that undermined his
conclusion, the ALJ’s conclusion was “improperly based on a selective citation to, and
mischaracterization of, the record” and “not supported by substantial evidence” (citing Ericksson
v. Comm’r of Soc. Sec., 557 F.3d 79, 82–84 (2d Cir. 2009)); Nigro v. Astrue, No. 10-CV-1431,
9

Although “chiropractors are not ‘accepted medical sources’ whose opinions are entitled
to controlling or even special weight,” an ALJ “may not flatly reject them without explaining his
basis for doing so.” Nigro v. Astrue, No. 10-CV-1431, 2011 WL 4594315, at *5 (E.D.N.Y. Sept.
30, 2011) (collecting cases). An ALJ has discretion to determine “[h]ow much weight to give”
the opinions of a chiropractor, but “should consider the opinions” and “explain what weight he
gives those opinions.” Id.; see also Mortise v. Astrue, 713 F. Supp. 2d 111, 126 (N.D.N.Y. 2010)
(noting that a chiropractor’s “opinion is not treated with the same deference as a treating
physician’s opinion, but is still entitled to some weight, especially when there is a treatment
relationship with the [p]laintiff” (collecting cases)); Carlantone v. Astrue, No. 08-CV-07393,
2009 WL 2043888, at *5 (S.D.N.Y. July 14, 2009) (noting that although chiropractors “are not
considered acceptable medical sources for the purposes of establishing an impairment,” the
opinions of chiropractors “are acceptable to show the severity of [a] claimant’s impairments” and
holding that “the ALJ should consider the opinions of [the claimant’s chiropractor’s] and explain
what weight he gives those opinions” (alterations and internal quotation marks omitted) (citing
20 C.F.R. § 404.1513(a), (d))).

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2011 WL 4594315, at *5 (E.D.N.Y. Sept. 30, 2011) (remanding because the ALJ “flatly
rejected” the opinions of the claimant’s chiropractor “without explaining his basis for doing so”);
cf. Figueroa v. Astrue, No. 04-CV-7805, 2009 WL 4496048, at *12 (S.D.N.Y. Dec. 3, 2009)
(affirming the ALJ’s decision to give a chiropractor’s opinion “minimal weight” because “the
ALJ explicitly stated in his decision that he ‘did consider the report from the claimant’s treating
chiropractor’ . . . but that ‘the opinion of the chiropractor is contradicted by the opinion of the
consultative physician, . . . by the claimant’s conservative course of treatment, by the objective
medical findings of record, and by the claimant’s wide range of daily activities’”).
As to Dr. Davy, the ALJ only mentioned Dr. Davy once, (see R. 22 (“Accordingly, little
weight is given to the opinions of Dr[s]. Nangia, Davy, and Piazza, who opined that the claimant
is totally disabled from all work.”)), and never discussed Dr. Davy’s findings and opinions.
However, Dr. Davy observed that Plaintiff’s gait was antalgic, that Plaintiff exhibited pain on
forward flexion, and that a straight-leg raising test and Spurlings test were both positive, and he
diagnosed Plaintiff with lumbar and cervical radiculopathy. (R. 414.) Before according Dr.
Davy’s findings and opinion little weight, the ALJ was required to discuss this evidence. See
Arias v. Astrue, No. 11-CV-1614, 2012 WL 6705873, at *2 (S.D.N.Y. Dec. 21, 2012) (An ALJ
“may not simply ignore contradictory evidence . . . the ALJ must acknowledge the contradiction
and explain why the conflicting [evidence] is being disregarded.”); Bolden v. Comm’r of Soc.
Sec., 556 F. Supp. 2d 152, 165 (E.D.N.Y.2007) (“[T]he ALJ must always give good reasons in
her decision for the weight accorded to a treating source’s medical opinion.” (internal quotation
marks omitted) (citing Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998))).
Moreover, the ALJ never discussed Dr. Gordon who noted that Plaintiff exhibited limited
neck and back flexion and extension and paraspinal pain, spasms and tenderness. (R. 343.) The

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ALJ erred when he ignored these medical findings and failed to explain what weight he accorded
them. See Estela-Rivera v. Colvin, No. 13-CV-5060, 2015 WL 5008250, at *13 (E.D.N.Y. Aug.
20, 2015) (“‘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.” (quoting 20 C.F.R. ¶¶ 404.1527(d), 416.927(d))); Emsak v. Colvin, No.
13-CV-3030, 2015 WL 4924904, at *11 (E.D.N.Y. Aug.18, 2015) (“Nowhere on the record did
the ALJ discuss the merits of [the claimant’s licensed clinical social worker’s]
opinions . . . . Therefore, the ALJ erred by failing to weigh every medical opinion, as required
by 20 C.F.R. § 416.927(c).”).
By failing to consider the findings of Dr. Piazza and Dr. Davy, and by ignoring Dr.
Gordon’s findings and opinion, the ALJ failed to provide good reasons for according little
weight to Dr. Piazza and Dr. Davy, and not according any weight to Dr. Gordon, which warrants
remand.
iii. The ALJ’s credibility determination
Plaintiff argues that the ALJ erred in finding that he was not credible as to the intensity,
persistence and limiting effects of his impairment because the ALJ improperly weighed whether
Plaintiff’s testimony was consistent with the medical evidence in the record. (Pl. Mem. 28–30.)
The Commissioner argues that the ALJ correctly determined Plaintiff’s credibility because her
testimony was inconsistent with substantial evidence in the record. (Comm’r Mem. 26–29.)
Because the Court remands the case for further consideration of the medical evidence, the Court
will not address Plaintiff’s argument as the ALJ’s errors impact the Court’s ability to review the
credibility determination.

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iv. Remand for the purpose of calculation of benefits
Plaintiff contends that the Court should remand this case solely for the purpose of
calculation of benefits because “the medical opinions in the record consistently indicate that
Plaintiff could not perform full time work.” (Pl. Mem. 19.)
Generally, when a court determines that the findings of an ALJ are not supported by
substantial evidence or the ALJ has applied an improper legal standard, remand is appropriate to
further develop the evidence in the record. See Butts, 388 F.3d at 385; see also Wheeler v.
Comm’r of Soc. Sec., No. 15-CV-105, 2016 WL 958595, at *12 (N.D.N.Y. Mar. 7, 2016)
(“Remand to the Commissioner for further development of the evidence is appropriate when
there are gaps in the administrative record or where the ALJ has applied an improper legal
standard.” (citing Rosa v. Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999))).
However, if the court determines that a claimant has met his burden of showing disability
at the first four steps, and the Commissioner has failed to meet her burden of rebuttal, a court
may remand for further proceedings or may remand solely for calculation of benefits. Butts v.
Barnhart, 416 F.3d 101, 104 (2d Cir. 2005) (holding that because the Commissioner failed to
meet her burden to provide vocational testimony about the availability of appropriate jobs, thus
failing to meet burden of rebuttal at the fifth step, it was not an abuse of discretion to remand for
further proceedings but noting that “the ordering of a benefits calculation was hardly out of the
question”); Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000) (Where reversal is based solely on
the Commissioner’s failure to sustain his burden at the fifth step, “remand for the sole purpose of
calculating an award of benefits is mandated.” (citing Balsamo v. Chater, 142 F.3d 75, 82
(2d Cir. 1998))), superseded by statute on other grounds, as recognized in Selian, 708 F.3d 409;
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980) (remand for calculation of benefits

35

appropriate where step five determination was not supported by vocational expert testimony,
noting “we have reversed and ordered that benefits be paid when the record provides persuasive
proof of disability and a remand for further evidentiary proceedings would serve no purpose”);
Wheeler, 2016 WL 958595, at *12 (“Reversal for calculation of benefits is appropriate only if
the record contains persuasive proof of disability and a remand for further evidentiary
proceedings would serve no useful purpose.” (citing Rosa, 168 F.3d at 82–83)); Henningsen v.
Comm’r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 272 (E.D.N.Y. 2015) (“Where ‘the record
provides “persuasive proof of disability and a remand for further evidentiary proceedings would
serve no purpose,” the court may reverse and remand solely for the calculation and payment of
benefits.’” (quoting Cherico v. Colvin, No. 12-CV-5734, 2014 WL 3939036, at *31 (S.D.N.Y.
Aug. 7, 2014) (quoting Parker v. Harris, 626 F.2d 225 (2d Cir. 1980)))).
The Court cannot determine that Plaintiff has met his burden of showing disability at the
first four steps of the sequential analysis because of the ALJ’s failure to properly evaluate the
medical evidence in the record and properly weigh every medical opinion. See Catsigiannis v.
Astrue, No. 08-CV-2177, 2013 WL 2445046, at *4 (E.D.N.Y. June 4, 2013) (“[W]here an ALJ
fails to adequately evaluate evidence concerning [the claimant’s] condition during the relevant
period, thus disobeying the requirement to develop the record, full remand for further
proceedings by the Commissioner is appropriate.” (citing Snell, 177 F.3d at 133)); Anderson v.
Astrue, 2009 WL 2824584 (E.D.N.Y. 2009) (denying the plaintiff’s motion for remand solely for
the calculation of benefits and remanding for further administrative proceedings because the ALJ
used a “‘pick and choose’ approach to reviewing” evidence). Accordingly, the Court remands
for further administrative proceedings.

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III. Conclusion
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is
denied, and Plaintiff’s cross-motion for judgment on the pleadings is granted. The
Commissioner’s decision is vacated, and this action is remanded for further administrative
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is
directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 31, 2016
Brooklyn, New York

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