Distefano v. Colvin

Filing 20

MEMORANDUM AND ORDER: For the reasons set forth above, the Commissioner's cross-motion for judgment on the pleadings is denied. Plaintiff's motion for judgment on the pleadings is granted. The ALJ's decision is reversed and the matter is remanded to the ALJ under the fourth sentence of 42 U.S.C.§ 405(g) for further proceedings consistent with this Memorandum and Order. Ordered by Judge Carol Bagley Amon on 11/17/2017. (fwd for judgment) (Fernandez, Erica)

FILED s .
■k t«V 20 2317 -k,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

BROOKLYN

ALFONSO DISTEFANO,

Plaintiff,

NOT FOR PUBLICATION

MEMORANDUM & ORDER

-against-

15-CV-4945 (CBA)
CARLOYN W. COLVIN,
Defendant.
-X

AMON, United States District Judge:

Plaintiff Alfonso DiStefano ("Plaintiff) commenced this action pursuant to Title II of the

Social Security Act, 42 U.S.C. § 405(g), seeking review of a final determination by the
Commissioner ("Commissioner" or "Defendant") of the Social Security Administration ("SSA")

denying his May 9, 2012 application for Social Security Disability Benefits. (See D.E. # 1

("Compl.").) Both parties have moved for judgment on the pleadings, pursuant to Rule 12(c) of
the Federal Rules of Civil Procedure. Plaintiff seeks an order reversing the Commissioner's

determination that he is not disabled, and remanding for reconsideration of the agency decision.

The Commissioner defends the agency decision and seeks dismissal of the Complaint. For the
reasons set forth below, the Court concludes that the Administrative Law Judge ("ALJ") made

numerous legal errors and that the ALJ's decision was not supported by substantial
evidence. Plaintiffs motion is granted and the case is remanded for further administrative
proceedings consistent with this Memorandum and Order.

BACKGROUND

I.

Procedural History

Plaintiff retired due to disability as a sergeant from the New York City Police Department
in November 2011. (D.E. # 7 ("Administrative Record" or "R.") at 50, 446—451.) On May 9,
2012,Plaintifffiled an application for Social Security disability benefits, claiming that he has been
disabled since November 29,2011 due to the following conditions: a torn rotator cuff resulting in

a reattached bicep tendon; a dislocated clavicle; hemiated and bulging discs; sleep apnea; asthma;
chronic sinusitis; atrial fibrillation; weakness; loss of motion; instability; tingling; numbness;

shortness of breath; loss offunction; fatigue; and difficulty sitting, standing, and walking.(Id at

138, 154.) On August 13, 2012,the SSA denied Plaintiffs application, finding that his condition
had "stabilized" and that he could still perform work that would be less physically demanding than

his former police work and that would not require more than occasionally lifting or carrying of up

to 10 pounds. (Id. at 82, 86.) Thereafter, on August 20,2012, Plaintiff requested a hearing before
an ALJ. (Id at 96.) On January 7, 2014, Plaintiff appeared with coimsel Nicholas Cifuni before
ALJ Patrick Kilgannon, who briefly examined Plaintiff and also questioned the vocational expert,
Michael Smith ("VE"). (Id at 46-72, 133-35.) On May 28, 2014, the ALJ issued his decision

finding that Plaintiff was not disabled during the relevant period, but rather that he retained that
capacity to perform "less than sedentary work." (Id at 26—40.) The ALJ also found that, per the
vocational expert, sufficient jobs exist in the national and regional economy for someone of
Plaintiffs background and residual functional capacity ("RFC"). (Id) Plaintiff appealed the
ALJ's decision to the SSA Appeals Council on June 9, 2014,(id 7-23), and the Appeals Council
denied review on June 26, 2015,finding "no reason under [its] rules to review the Administrative

Law Judge's decision" and thereby rendering the ALJ's ruling final,(id at 1). The instant civil
action was timely commenced on August 21,2015. (See Compl.)
II.

Relevant Medical Evidence

Plaintiff supports his applications for disability benefits with medical evidence regarding
various ailments from numerous medical professionals, which are well chronicled in the ALJ's

opinion and in both parties' briefs. Because this Court's ruling is based primarily on the ALJ's
consideration of Plaintiff's shoulder and lower back problems, these are the facts that are recited
below.

A. Pre-AIIeged Disability Onset

Plaintiffinjured his left shoulder and ankle on July 21,2010 when executing an arrest. (R.

at 447.) He saw Dr. Ludwig Licciardi, to whom he complained ofpain, paresthesia, and numbness

in his left hand. (Id at 430-31.) Physical examination revealed limited abduction in his left

shoulder, significant weakness in his left arm, and an audible popping soimd when the shoulder
was moved from an abducted to a forward flexing position. (Id) Plaintiff also complained of pain

and tenderness on his biceps tendon and along his triceps down to the elbow, and in the levator

scaphoid and rhomboids muscles ofthe left shoulder. (Id) Plaintiffhad a slightly positive straightleg raise on the left, and that ankle was very tender. (Id) Dr. Licciardi found left shoulder
dislocation subluxation and separation of the acromioclavicular("AC")joint; a possible rotatorcuff tear or labral tear of the left shoulder; triceps tendonitis and early evidence of nerve

entrapment; a left-ankle tear of the talofibular ligament; and a possible mild malleolar fracture.
(Id.)

An MRI of the left shoulder taken on July 24, 2010 revealed evidence of a partial tear of

the rotator cuff, impingement of the AC joint, and labral tearing with a posterior superior labral

lesion involving the biceps tendon. (Id at 429,441.) Plaintiffreturned to Dr. Licciardi on August
5, 2010, who noted continued pain and recommended that Plaintiff undergo physical therapy on
his shoulder and ankle two to three times a week for the next month to restore his range of motion

and to prevent atrophy. (Id at 429.)

Plaintiff imdertook physical therapy with James Cardello three times a week from August
26, 2010 to November 3, 2010; however, the treatment was ineffective and so on November 8,

2010, Dr. Andrew Rokito performed arthroscopic surgery on Plaintiffs left shoulder. (Id at 36162, 433-34, 442.) After surgery, Plaintiff returned to physical therapy three times per week from
November 22, 2010 to June 3, 2011. (Id at 444.) Plaintiff "progressed slowly" with physical

therapy, and by the conclusion his pain was 10/10 at its worst and 4/10 at its best. (Id) His
physical therapist opined that Plaintiff was unable to resume his police work. (Id)
A March 17, 2011 computerized tomography ("CT") scan performed on Plaintiffs left-

upper extremity to examine his stemoclavicular ("SC") joint instability revealed degenerative

changes at the articulation ofthe left-first rib and sternum but no acute fracture or dislocation. (Id
at 435.) A May 13,2011 left-shoulder MRI showed no evidence of post-surgery complications or
acute fracture or osteonecrosis, but it did note degenerative-type tearing of the glenoid labrum

which were compatible with a Buford complex as well as moderate to severe osteoarthrosis ofthe

AC joint, possibly superimposed on an element of distal clavicular osteolysis. (Id at 436—37.)
On May 21, 2011, Plaintiff was seen by Dr. Young W.Kwon for consultation. Dr. Kwon

reported that some of Plaintiffs pain had improved through physical therapy, but that residual
symptoms along with "snapping and instability" of the left SC joint remained. (Id at 501.)
Plaintiff rated his resting pain as a 5/10, which increased with activity. (Id) Examination found
that the left SC joint dislocated with a snap with rotation and abduction, and that the area was

tender to palpitation. (Id.) Dr. Kwon recommended open medial clavicle excision to help improve
the pain and snapping, though he noted that some instability may remain. (Id)
B. Post-Alleged Disability Onset

Plaintiff was primarily treated for his shoulder and back pain by Dr. James Guariglia (a

chiropractor), Dr. Perry Drucker,and Dr. Kenneth Chapman. As part of his disability application.
Plaintiff was also examined by consultative physicians Dr. Lamberto Flores and Dr. Chitoor

Govindaraj. Finally, Dr. Jack LeBeau reviewed Plaintiffs file in order to provide to the ALJ his
opinion of Plaintiffs RFC.
1. Dr. Drucker

Plaintiff first saw Dr. Drucker, a physical medicine and rehabilitation specialist, on March

7, 2012, complaining of left shoulder pain and lower back pain that radiated to his left thigh. (Id
at 250-53.) He denied any significant cervical pain or upper extremity pain,and noted no difficulty
with fine motor or coordination activities. (Id.) Upon examination. Dr. Drucker noted moderate

SC and AC joint tenderness with moderate subacromial bursa region tenderness on the left
shoulder. (Id) Upper extremity muscle strength was 4+ to 5-/5 proximally and 5- to 5/5 distally.
(Id) A lumbar examination demonstrated negative spinal tendemess, but found L3-S1 paraspinal
spasm and tendemess, moderate on the left, mild to moderate on the right, with few isolated trigger
points on the left and mild left sciatic notch tendemess. (Id) Dr. Dmcker further found positive
straight-leg raise and LaSague test on the left with decreased range of motion and decreased light
touch and pinprick sensation in the L3-L4 dermatomes on the left. (Id) Plaintiffs lower-extremity
muscle strength was 5/5, he had good heel-to-toe gait pattem, he was able to get on and off the

examining table without any significant difficulty,and had only mild difficulty going from a supine
position to a prone position to a supine position. (Id) Dr. Dmcker recommended tri-weekly

physical therapy sessions. (Id.) Plaintiffs symptoms were largely unchanged at an April 23,2012
follow-up. (Id at 250-52.)
Plaintiff retumed to Dr. Drucker on March 23, 2012 for an electromyography ("EMG"),

which documented membrane instability/denervation potentials of the left vastus medialis, left
anterior tibialis, and left L3/4 and L4/5 paraspinals, which demonstrated increased large-

amplitude/long-duration polyphasic potential with minimal effort. (Id at 267-68.) The left
anterior tibialis also demonstrated a neuropathy firing rate. Dr. Drucker found these results
consistent with a chronic/active L3/4 radiculopathy on the left. (Id)

Dr. Drucker completed a narrative report on December 12, 2013. (Id at 524—27.) Dr.
Drucker indicated that his office had been treating Plaintiff every four to six weeks since his initial

visit in March 2012,for his lower-back, leg, and left- shoulder pain. (Id) He added that Plaintiff
has used various medications to treat his pain—including Neurontin, Zanaflex, Tramadol, and

Vicodin—but that they provide only "transient relief and that Plaintiff is adamantly opposed to

an epidural and has avoided electroacupuncture for financial reasons. (Id) A physical
examination found tendemess in Plaintiffs left shoulder; reduced forward flexion, extension, and

abduction but normal adduction; internal and external rotation at 3/4 of the normal limit; muscle

strength of4-1- to 5-/5 proximally and 5/5 distally to the left; and negative Adson's, Drop Arm,and
hyperabduction. (Id) A lumbar examination disclosed negative spinal tendemess, negative
sacroiliac("SI")joint tendemess,negative Ganseslen's,and negative sciatic notch bilaterally. (Id)
There was, however, L2-S1 paraspinal spasm and tendemess, moderate on the right, mild to
moderate on the left, with isolated trigger points, right greater than left. (Id) There was positive

straight-leg raise and LaSague on the right, and reduced range of motion of the L/S spine, which
Dr. Dmcker noted was a modest decline from Plaintiffs prior evaluation. (Id) Plaintiff still

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demonstrated decreased light touch and pinprick in the L3/4 dermatomes on the left, as well as the

right anterior lateral thigh. Lower extremity muscle strength remained 5/5 proximally and distally,
with no lower-extremity muscle wasting or atrophy. (Id.) Dr. Drucker noted Plaintiffs November
19, 2012 MRJ demonstrating L/S spine degenerative disc disease, L3/4 and L4/5 with facet

hypertrophy and mild-to-moderate lumbar stenosis, as well as a mild disc bulge at L2/3. Dr.
Drucker concluded, in his "medical opinion with a good deal of medical certainty," that Plaintiff
"is presently totally disabled and unable to partake in any significant gainful employment including
sedentary activity secondary to his limited sitting tolerance," and that this condition is permanent.
(Id.) He added that Plaintiff also continues to experience "mild residual weakness" in his left
shoulder. (Id.)

Dr. Drucker also filled out an RFC, concluding that Plaintiff could stand/walk less than

two hours per day; sit less than four hours per day; occasionally lift/carry more than five but less
than ten pounds; and frequently lift/carry less than five pounds. (Id at 522-23.) He opined that
Plaintiff requires frequent breaks during the work day, suffers from pain that prevents him from

performing eight hours of work in a day, and requires medications that interfere with his ability to
function in the work setting. (Id.) Dr. Drucker supported his RFC determination with specific
reference to Plaintiffs above-mentioned November 19, 2012 MRl; to a December 5, 2012 EMG

showing an active-right and chronic-active-left L3/4 radiculopathy; and to Plaintiffs shoulder
surgery. (Id.)
2. Dr. Chapman

In March 8, 2012, Plaintiff visited the offices of Dr. Kenneth Chapman, who is board

certified in Pain Management and Anesthesiology,for treatment ofPlaintiffs shoulder and lowerback pain. (Id at 410-11.) Plaintiffappears to have been evaluated by Dr. Chapman's physician's

assistant("PA"),Kristy Lubak. (Id.') On examination, his gait was normal and his muscle strength
was 5/5, but there was tendemess/palpable paraspinal muscle spasm in the lower back and

decreased range of motion of the lumbar spine. (Id.) Straight-leg raising was negative. (Id)
There was tenderness over the left shoulder, clavicle, and AC joint. (Id) Plaintiff was diagnosed

with lumbar-disc disorder without myelopathy, lumbar radiculopathy, and shoulder pain. (Id)
Plaintiff was informed that his condition was likely chronic, and Dr. Chapman recommended

Plaintiff use nonsteroidal anti-inflammatory drug("NSAID")and muscle relaxant medications(he

was prescribed Zanaflex and a Fleeter patch), which should not be mixed with alcohol or used
while operating motor vehicles, due to their sedative effect. (Id) Dr. Chapman also offered

Plaintiff injections that might provide intermittent relief, but Plaintiff rejected the injections. (Id)
Plaintiff returned to Dr. Chapman in May and June 2012. (Id at 406-09.) His physical

examination and diagnosis were unchanged, but Dr. Chapman added Tramadol and Relafen to

Plaintiffs prescription anyways. (Id) Plaintiff retumed on August 2, 2012, and seems to have
had his physical examination administered by Dr. Chapman's PA. (See id at 568-69.) The
evaluation showed lumbar paraspinal tenderness but a negative straight-leg raise and 5/5 strength

bilaterally. (Id) Plaintiff was offered and rejected a lumbar transforaminal epidural steroid

injection, which he was informed carried the risk ofbleeding,infection, nerve injury, no pain relief,
or even increased pain. (Id) Plaintiff was told to continue physical therapy and was prescribed
additional Zanaflex, Tramadol, and Relafen. (Id)

Plaintiff next saw Dr. Chapman on December 2, 2013. (Id at 565.) The evaluation

performed by his PA noted that Plaintiff appeared uncomfortable or in pain, but found a normal
gait, sensations intact to light touch, and a negative straight-leg raise. (Id) Plaintiffs lumbar
range of motion was somewhat decreased, and there was palpable paraspinal muscle spasm

bilaterally. There was tenderness along the AC joint and decreased range of motion in the
shoulder. (Id) That same day, Dr. Chapman issued an RFC in which he determined that Plaintiff
was able to stand or walk for less than two hours in an eight-hour work day, sit for less than four

hours, occasionally lift and carry five to ten pounds and frequently lift and carry less than five

pounds. (Id) Dr. Chapman concluded that Plaintiff requires frequent breaks during the day,that
his pain prevents him from working for eight hours in a day, that he would have difficulty
concentrating at work, that he would require more than two sick days per month, and that his
medications would interfere with his ability to work. (Id at 520—21.) Dr. Chapman relied on

Plaintiffs February 22, 2012 MRI and articulated clinical findings of chronic and persistent
shoulder, lumbar, and leg pain. (Id at 521.)

On December 18, 2013, Dr. Chapman issued a narrative report based on his treatment of
Plaintiff, his review of Plaintiffs 2012 MRI, and his physical examination of Plaintiff. (Id at

562.) Dr. Chapman's examination found that Plaintiffs range of motion was decreased and that
his lumbar and lower back were tender with palpable paraspinal muscle spasms. (Id) He found

that Plaintiff had a positive straight-leg raise on the right side, decreased sensation to light touch

bilaterally at L5/S1 dermatomes, but muscle strength of 5/5 for all groups tested. (Id at 562-63.)
He further noted decreased shoulder range of motion and palpable tenderness of the left shoulder

capsule, clavicle, and AC joint. (Id at 563.) Dr. Chapman assessed that Plaintiffs "shoulder,low
back, and lumbar radicular pain are permanent and he has reached his maximum medical

improvement." (Id at 564.) Dr. Chapman also opined that Plaintiff"was at risk of developing
further degeneration of his shoulder and low back and worsening pain." (Id) He further
determined that Plaintiff"cannot use his upper extremities for fine work or gross motor work[,].
. . cannot sit for more than 20 minutes and . . . cannot stand for more than 20 minutes at a time

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without having to change position for a period of time without pain." (Id.) Dr. Chapman
concluded that Plaintiff"is unable to work a meaningfuljob secondary to these disabilities and i[s]
totally permanently disabled." (Id.)
3. Dr. Guariglia

Plaintiff visited Dr. Guariglia, a chiropractor, for physical therapy twice per week from

January 2012 to June 2012 and continued regular visits through at least December 2013. (Id at
343-47.) Plaintiff complained of pain in his neck, lower back, and right leg; lower-back spasms;

shoulder pain and stiffness; and decreased left-arm strength. (Id.) In June 2012, Dr. Guariglia

performed a physical examination on Plaintiff, finding cervical- and lumbar-spine palpation
tendemess and muscle rigidity, positive cervical foraminal compression test, positive depression
test on the left shoulder, positive LaSague straight-leg raise on the right, positive Kemp's test on

the right, and cervical- and lumbar-spine range-of-motion limitations on all planes. (Id.) He found
no significant abnormality in Plaintiffs gait. (Id.) Dr. Guariglia diagnosed Plaintiff with sciatica
and cervical vertebrogenic radiculitis and opined that, due to the lingering nature of his condition
and its severity. Plaintiffs prognosis was poor. (Id.) Dr. Guariglia asserted that Plaintiff could
lift and carry ten pounds frequently; stand/walk up to six hours a day; sit up to six hours a day; and
push/pull in a limited manner. (Id. at 343-47.) Dr. Guariglia completed a narrative report on
December 30, 2013. He detailed his exam findings that Plaintiff had tendemess and muscle

rigidity in his cervical spine, "much lumbar spine palpation tendemess and muscle rigidity,"
limited cervical and lumbar range of motion, and positive LaSague and Kemp tests on the right.

(Id. at 593.) He also noted spinal misalignments at C4-5, C5-6, L4-5, and L5-S1, but found
Plaintiffs reflexes to be equal and active. (Id.) He concluded that Plaintiffs subjective complaints

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parallel his objective findings on examination and reiterated that the prognosis remained poor. (Id
at 593-94.)
4. Dr. Flores

At the request of the SSA, Dr. Flores performed a consultative exam on Plaintiff on July
11, 2012. (See jd at 78,399.) Dr. Flores noted the existence of an MR!but found that he did not
have the results to review. (Id) His physical examination revealed reduced range of motion and
tenderness ofthe left shoulder; tenderness and reduced spinal range of motion,as well as a positive

straight-leg raise; and normal hand dexterity and fine manipulation. (Id at 402.) He found no
sensory loss and normal gait and posture, and noted that Plaintiff had no difficulty getting onto the
examination table. (Id at 403.) However, Plaintiff had difficulty walking on his toes and had

limited ability to squat and bend. (Id) Dr. Flores determined Plaintiffs prognosis to be "fair" and
limited his workplace activities to those that did not involve "raising [his] left upper extremity

above [his] head,fully squatting, bending,[and]toe walking." (Id) Dr. Flores also found Plaintiff
to be limited in his ability to engage in "prolonged walking, sitting, standing, climbing stairs, and
heavy lifting." (Id)
5. Dr. Govindaraj

Plaintiff was examined by Dr. Govindaraj on February 4, 2014, also at the behest of the

SSA. Dr. Govindaraj noted Plaintiffs medical and surgical history—including his shoulder

injury—asserting that Plaintiff declined a surgery recommended by Dr. Drucker and that he "does
a lot of walking." (Id at 619-20.) Dr. Govindaraj's physical examination of Plaintiff showed no
tenderness or restrictions ofthe spine,"essentially normal" range of motion ofthe back, no muscle

spasm, normal reflexes, negative straight-leg raise, and normal gait. (Id at 621-22.) Dr.
Govindaraj found that Plaintiff had no "restriction in sitting, standing, walking ... [or] driving"

11

and that he was "not being treated with any appropriate therapy," and he concluded that Plaintiffs
"overall medical prognosis is good." (Id. at 622.) He attached an RPC finding that Plaintiff could
lift or carry up to ten pounds frequently and up to twenty pounds occasionally; sit, stand, and walk

eight hours at a time without interruption and eight hours total in a day;frequently reach overhead,
handle, finger, feel, and push/pull with both hands; continuously operate foot controls with both
feet; occasionally climb stairs and ramps; climb ladders or scaffolds; balance,stoop, kneel, crouch,
and crawl; occasionally be exposed to unprotected heights and extreme cold and heat; frequently
be exposed to moving mechanical parts, humidity and wetness, dust, odors, fumes, pulmonary
irritants, and vibrations; frequently operate a motor vehicle; and be exposed to loud or very loud
noise. (Id at 623-27.) In reaching these conclusions. Dr. Govindaraj appears neither to have
examined or considered Plaintiffs shoulder issues, nor to have reviewed or relied upon any ofthe

then-existing objective medical evidence concerning Plaintiffs conditions, such as magnetic
resonance imaging("MRI")or EMGs.
6. Dr. LeBeau

Dr. LeBeau, who is board certified in internal medicine and cardiology, was enlisted by

the ALJ to render his independent medical opinion concerning Plaintiffs disability. (Id. at 630.)
Dr. LeBeau never examined Plaintiff. Based only on his review of Plaintiffs records—^the

completeness of which is not readily apparent—Dr. LeBeau answered an interrogatory on March
29, 2014 in which he initially found that the evidence supported, among other things, "tendon

damage to the left shoulder," "apparent sublation of the left SC joint," and "L3/4 radiculopathy."
(Id. at 643.) Dr. LeBeau was uncertain whether Plaintiffs injuries met the Listing ofImpairments,
but found that Plaintiff suffered a "significant injury to his shoulder," which precluded him from

continuing his police work. (Id. at 644.) Dr. LeBeau continued, however, that Plaintiff "is a

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powerful man and could do other types of work." (Id.) Dr. LeBeau requested additional
information regarding Plaintiffs heart condition before reaching a final disability conclusion. (Id.)
But based on his preliminary review, he concluded that Plaintiffs "[pjhysical strength is good,"

(id.), and completed an RPC finding that Plaintiff could continuously lift up to twenty pounds;
occasionally lift and carry up to fifty pounds; continuously carry up to ten pounds;frequently carry

up to twenty pounds; sit, stand, and walk for two hours without interruption; sit eight hours per

day; stand six hours per day; walk four hours per day; continuously reach, handle,finger,feel, and
push/pull with his right hand; frequently reach overhead, and continuously reach, handle, finger,
feel, and push/pull with his left hand; continuously operate foot controls with both feet;
continuously climb stairs and ramps; occasionally climb ladders and scaffolds; frequently balance,

stoop, kneel,crouch, and crawl;frequently move mechanical parts and be exposed to humidity and
wetness; continuously operate a motor vehicle; and be exposed to dust,fumes, pulmonary irritants,
extreme heat and cold, vibrations, and loud noise,(id. at 646—51.) He further found that Plaintiff

was not restricted in performing any of the activities enumerated in the RFC form. (Id at 651.)
Dr. LeBeau did not identify what medical or clinical findings supported his RFC determinations.
After receiving additional information from the ALJ—including a cervical spine MRI—
Dr. LeBeau submitted a revised interrogatory on April 25, 2014, in which he concluded that the

records "state repeatedly that neurological examination is normal, strength is good, and

symmetrical and that no other abnormalities of the extremities are noted. Thus no orthopedic or
neurological listings are met." (Id. at 659.) He revised his RFC to state that Plaintiff could walk
for only one hour without interruption, sit for seven hours per day, stand for four hours per day,
and walk for two hours per day,continuously reach overhead with both hands, occasionally climb

stairs and ramps, never climb ladders and scaffolds, occasionally move mechanical parts, and

13

frequently operate a motor vehicle. (Id. at 661—65.) Dr. LeBeau does not articulate the reasons
behind these changes in his RFC or what new information caused the revisions, and the RFC again
does not identify what medical or clinical findings supported the RFC conclusions.
STANDARD OF REVIEW

"A district court may set aside the Commissioner's determination that a claimant is not

disabled only if the factual findings are not supported by 'substantial evidence' or if the decision
is based on legal error." Burgess v. Astrue. 537 F.3d 117, 127(2d Cir. 2008)(quoting Shaw v.
Chater. 221 F.3d 126, 131 (2d Cir. 2000)). "To determine whether the findings are supported by

substantial evidence, the reviewing court is required to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn." Snell v.

Apfel. 177 F.3d 128, 132(2d Cir. 1999)(quoting Mongeur v. Heckler. 722 F.2d 1033, 1038 (2d
Cir. 1983)(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)). "Where the Commissioner's decision rests on adequate findings supported by
evidence having rational probative force,[the court] will not substitute [its] judgment for that of
the Commissioner." Veino v. Bamhart. 312 F.3d 578, 586 (2d Cir. 2002f: see also 42 U.S.C.

§ 405(g)("The findings ofthe[Commissioner]as to any fact, ifsupported by substantial evidence,
shall be conclusive ....").

This deferential standard of review does not apply, however, to the ALJ's legal
conclusions. Bvam v. Bamhart. 336 F.3d 172, 179(2d Cir. 2003). "[W]here an error of law has

been made that might have affected the disposition of the case," the court will not defer to the
ALJ's determination. Pollard v. Halter. 377 F.3d 183, 189 (2d Cir. 2004)(quoting Townlev v.

14

Heckler. 748 F.2d 109,112(2d Cir. 1984)). Rather, an ALJ's "[f]ailure to apply the correct legal
standards is grounds for reversal." Id (quoting Townlev. 748 F.2d at 112). Legal error may
include failure to adhere to the applicable regulations. See Kohler v. Astrue. 546 F.3d 260, 265

(2d Cir. 2008). "Even if the Commissioner's decision is supported by substantial evidence, legal
error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue. 641 F. Supp. 2d
322, 328(S.D.N.Y. 2009).
DISCUSSION

Plaintiff contends that the ALJ improperly rejected the opinion of Plaintiffs treating

physicians in making his determination and that the ALJ instead placed undue reliance upon the
conclusions reached by Dr. LeBeau, who had been retained by SSA to opine on Plaintiffs
condition and who had never examined Plaintiff. (PI. Mem.at 22). The ALJ also appeared to rely

heavily on the opinions of Dr. Govindaraj, who examined Plaintiff only once and who gave no
indication that he had reviewed any of Plaintiffs MRJs or EMGs.

"A treating physician's statement that the claimant is disabled cannot itself be
determinative." Green-Younger v. Bamhart. 335 F.3d 99, 106(2d Cir. 2003)(quoting Snell. 177

F.3d at 1331: see also Micheli v. Astrue. 501 F. App'x 26, 28 (2d Cir. 2012). But a treating

physician's opinion on the "nature and severity" of the plaintiffs 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
plaintiffs] case record." 20 C.F.R. § 404.1527(01(21: see Matta v. Astrue. 508 F. App'x 53, 57

(2d Cir. 2013)(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 the continuity
of treatment he provides and the doctor/patient relationship he develops place him in a unique

15

position to make a complete and accurate diagnosis of his patient."(quoting Mongeur,722 F.2d at
1039 n.2); Veino. 312 F.3d at 588(discussing treating physician rule). Atreating 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; Bailev v. Astrue, 815 F. Supp.
2d 590,597(E.D.N.Y. 2011). Medically acceptable clinical and laboratory diagnostic techniques

include consideration of a "patient's report of complaints, or history, [a]s an essential diagnostic
tool." Green-Younger. 335 F.3d at 107 (quoting Flanerv v. Chater. 112 F.3d 346, 350 (8th Cir.
1997)).

The ALJ in this case gave "little weight" to the opinions ofboth Drs. Drucker and Chapman
that Plaintiff was unable to work. Although the ALJ noted correctly that the ultimate determination

of disability is reserved for the Commissioner,(R. at 38 (citing SSR 96-5p)), the ALJ's rejection
ofPlaintiffs treating physicians' opinions regarding the nature and severity of his impairment was

in error. The ALJ rejected their conclusions based on his finding that they are "simply unsupported
by the objective medical evidence." (Id) However,the record shows that their conclusions found
ample support. Indeed, the ALJ notes that the record supports the conclusion that Plaintiff had
reduced range of motion in his lower back and left shoulder, paraspinal tenderness, and "a few

trigger points." (Id) The ALJ also notes that the record also demonstrates positive straight leg
raising and diminished sensation (though noting that this "is not consistently shown throughout
the record").' Nonetheless, the ALJ rejects the finding of disability because he asserts that the

'This finding,though technically correct, misstates the weight ofthe evidence in the record. Ofthe various physicians
who performed the straight-leg raise test, all but one of them (Dr. Govindaraj) found that Plaintiff tested positive.
They are Dr. Licciardi(R. at 430), Dr. Drucker(id at 253,528), Guariglia(a chiropractor,id at 343, 593), Dr. Flores
(id at 402), and Dr. Chapman (id at 561). Dr. Chapman's PA also found on various occasions that Plaintiff tested
negative.
16

record also shows that Plaintiff has a normal gait and full strength, no spinal tenderness,^ and "only
mildly limited" left-shoulder range of motion, which the ALJ took to contra-indicate the treating
physicians' opinions regarding Plaintiffs disability. (Id)

The ALJ's conclusions regarding Plaintiffs treating physicians' opinions thus appear to be
based less on the fact that their conclusions find no support in the record, for plainly they are well

supported, but instead on those aspects of the record that the ALJ deemed to be inconsistent with
their opinions. Likewise, it appears that the ALJ found the treating physicians' conclusions to be
inconsistent with the opinions of the consulting experts, Drs. LeBeau and Govindaraj. However,

by considering in passing the substantial evidence that supported and was consistent with the
treating physicians' conclusions, and instead relying upon his own interpretation of what
symptoms must accompany a diagnosis of disability, the ALJ erred. See Selian v. Astrue. 708
F.3d 409,419(2d Cir. 2013)(remanding where "the ALJ improperly substituted her own criteria

as to what is necessary to establish a fibromyalgia diagnosis without support firom medical

testimony" and ordering the ALJ to "rely on the medical criteria that the treating physician found

to support [the] diagnosis" and not to "substitute her own opinion as to the proper diagnostic
criteria"). Moreover,the ALJ ftirther erred by articulating his rejection ofthe treating physicians'
opinions as based upon a lack ofevidentiary support, but relying instead on alleged inconsistencies
with other evidence in the record. Finally, even assuming the ALJ were correct not to give

controlling weight to the treating physicians' opinions, he would have erred by failing to consider
the relevant factors in determining how much weight the opinions should have been afforded.

^ This conclusion, however, is contradicted by the ALJ's own finding just one page prior that a consultative
examination with Dr. Flores showed "tenderness in [Plaintiffs] spine." (R. at 37.)
17

1.

Treating Physician's Opinions Were "Well-Supported"

MRIs and EMGs are objective evidence, as are medical signs diagnosed using "medically

acceptable clinical diagnostic techniques." Newsome v. Astrue. 817 F. Supp. 2d 111, 128
(E.D.N.Y. 2011)(quoting 20 C.F.R. §§ 404.1528(b) and (c)). Both Drs. Drucker and Chapman
explicitly cited to such objective evidence when making their RFC determinations.
A. Dr. Chapman

Dr. Chapman's RFC noted Plaintiffs February 2012 MRI identifying disc bulges of the
lumbar spine and bone spurs. (R. at 521). Considering the painkillers that Dr. Chapman had

prescribed to Plaintiff, including Tramadol, Ultram, and Zanaflex, Dr. Chapman indicated that
Plaintiff was taking "medications that interfere with his ability to function in the work setting."

(Id) His narrative assessment added further objective clinical support to his conclusions,including

a physical examination of Plaintiff. Dr. Chapman noted the February 2012 MRI's findings of
abutment of the exiting left L5 nerve root, positive straight-leg raise on the right side, decreased
sensation to touch bilaterally at L5/S1, tenderness of the lower back, and palpable paraspinal
muscle spasm. (Id at 562-63.) Dr. Chapman further identifies tenderness in Plaintiffs left
shoulder capsule, clavicle, and AC joint, and range of motion limitations of the lumbar and
shoulder. (Id) Based on these findings—as well as his history oftreating Plaintiffs shoulder and

back pain from March 2012 to August 2012—Dr. Chapman assessed that Plaintiffs "shoulder,
low back, and lumbar radicular pain are permanent and he has reached his maximum medical

improvement" and opined that Plaintiff "was at risk of developing further degeneration of his
shoulder and low back and worsening pain." (Id at 564.) Dr. Chapman also concluded that
Plaintiff"carmot lift more than 10 [pounds] or carry anything more than 10 [pounds], he cannot

use his upper extremities for fine work or gross motor work... cannot sit for more than 20 minutes

18

and he cannot stand for more than 20 minutes at a time without having to change position for a
period oftime without pain." (Id.)

Apart from the alleged inconsistency between Dr. Chapman's findings and the rest of the
record,the ALJ also rejected Dr. Chapman's opinions for two additional reasons. The first is that,
before examining Plaintiff in December 2013 incident to reaching his RFC conclusion. Dr.

Chapman had last seen Plaintiff over a year prior, in August 2012. (Id at 36.) Second, the ALJ
found that Dr. Chapman's "own physical examination" revealed certain findings—such as a

normal gait, 5/5 strength, negative Gaenslen's Test, negative Patrick's Test, negative straight leg
raise, and intact sensation to light touch in all dermatomes bilaterally—^that the ALJ appears to
conclude are inconsistent with Dr. Chapman's finding of disability. Neither of these bases are
sufficient to support giving "little weight" to Dr. Chapman's opinion. Even if the gap in treatment
undermines a finding that Dr. Chapman is a "treating physician," it alone is no reason to reject a

physician's opinion. Indeed, the ALJ here gave "great weight" to Dr. Govindaraj, who only
examined Plaintiff once. If a single exam is sufficient to afford a physician's opinion "great

weight," then the fact that Dr. Chapman's final exam came over a year after his numerous previous
exams cannot be a basis for affording that final exam any less weight than Dr. Govindaraj's exam.

Regarding the allegedly inconsistent findings in Dr. Chapman's exam, the ALJ

impermissibly interposes his interpretation ofPlaintiffs ailments with those ofthe physicians. As
noted above, there was certainly sufficient objective evidence to support Dr. Chapman's opinion.
Moreover,the ALJ appears to misread the record. Although Plaintiff was examined on December
2, 2013 by Dr. Chapman's PA, who reported the findings that the ALJ recounts,(R. at 566-67),
Dr. Chapman's narrative report of December 18, 2013 recounts different physical exam findings,

(see id. at 562-64). For instance. Dr. Chapman notes a positive straight leg test on the right side.

19

decreased sensation to light touch at the bilateral L5/S1 dermatomes, and substantially reduced
range of motion in the lumbar. (Id. at 563.) Accordingly, his conclusions were supported by
consistent diagnostic findings. See also Mongeur. 722 F.2d at 1039 n.2 ("[T]he diagnosis of a
nurse practitioner should not be given the extra weight accorded a treating physician.").
Moreover, an "ALJ has a threshold duty to adequately develop the record before deciding

the appropriate weight to afford to a treating physician's opinion." Nusratv v. Colvin, No. 15-CV2018(MKB),2016 WL 5477588, at *12(E.D.N.Y. Sept. 29, 2016)(citing Burgess, 537 F.3d at
129). To the extent that the ALJ had questions about the provenance ofthese results noted by Dr.

Chapman or found them to be inconsistent with his PA's notes, the ALJ had a duty to further
develop the record. Failure to do so before assigning "little weight" to Dr. Chapman's opinion
was error and warrants remand. See, e.g.. Lopez v. Comm'r of Soc. Sec.. 622 F. App'x 59,60-61

(2d Cir. 2015)(stating that "[bjefore rejecting" the treating physician's opinion because it was not

supported by the record, the ALJ should have further developed the record by obtaining a more
detailed opinion from the treating physician); Ahisar v. Comm'r of Soc. Sec.. No. 14-CV-4134
(PKC),2015 WL 5719710,at *12(E.D.N.Y. Sept. 29,2015)("[l]fa physician's report is believed
to be insufficiently explained,lacking in support,or inconsistent with the physician's other reports,
the ALJ must seek clarification and additional information from the physician, as needed, to fill

any clear gaps before rejecting the doctor's opinion."(quoting Correale-Englehart v. Astrue. 687
F. Supp. 2d 396,428(S.D.N.Y. 2010))); Vazquez v. Comm'r ofSoc. Sec.. No. 14-CV-6900(JCF),
2015 WL 4562978, at *17 (S.D.N.Y. July 21, 2015)("[Wjhere a treating physician's opinion is

'out of sync with the treating notes, the ALJ [does] not have the luxury of terminating his inquiry
at that stage in the analysis.' Rather, the ALJ must further develop the record to 'fill any clear

20

gaps' and resolve the inconsistency."(internal citations omitted)(quoting Hidalgo v. Colvin. No.
12-CV-9009(LTS),2014 WL 2884018, at *19(S.D.N.Y. June 25,2014))).
B.

Dr. Drucker

Dr. Drucker likewise relied on objective evidence to support his RFC conclusions,

including his review of diagnostic tests as well as his own physical examinations and experience
with Plaintiff over a nearly two-year period during which Plaintiff was re-assessed every four to
six weeks. (Id. at 524.) His December 11,2013 RFC noted a November 2012 MRI showing L/S

spine degenerative disc disease, L3/4 and L4/5 with facet hypertrophy and mild-to-moderate
lumbar stenosis, and a mild disc bulge at L2/3. (Id. at 523.) He noted an EMG from December

2012 demonstrating an "active right / chronic left L3/L4 radiculopathy." (Id) Dr. Drucker wrote
a narrative report on December 12, 2013, in which he described the results of his physical exam
ofPlaintiff. He found mild tenderness and limited range of motion on Plaintiffs left shoulder,(id

at 525); lumbar paraspinal tenderness at L2/S1 with few isolated trigger points, mostly on the right

side; and positive straight-leg raise and LaSague test on the right. (Id) He further found a
decreased range of motion in the L/S spine, which he noted was a"modest decline"from Plaintiffs
previous evaluation. (Id at 525-26.) He also noted decreased light touch and pinprick sensitivity
in the L3/4 dermatomes on the left as well as the right anterior lateral thigh. (Id at 526.) His RFC
concluded that Plaintiff can stand/walk less than two hours per day; sit less than four hours per

day; lift/carry less than ten pounds occasionally and less than five pounds frequently, and that
Plaintiff requires frequent breaks, suffers from pain which prevents him from working a full day,
and takes medication that would interfere with his ability to function in the work setting. (Id at

520-21,526-27.) Dr. Drucker explained that he had been treating Plaintifffor his chronic lower-

back pain for two years and that, in Dr. Drucker's "medical opinion with a good deal of medical

21

certainty," Plaintiffs pain and "limited sitting tolerance" precluded him from engaging in even
sedentary work. (Id at 527.) These conclusions were supported by Dr. Drucker's extensive
findings and long history of treating Plaintiff, and so were not, as the ALJ concluded, "simply
unsupported by the objective medical evidence." (Id. at 38.)
II.

The Inconsistent Evidence Is Not "Substantial"

Although the treating physician rule generally requires deference to the medical opinion of

a plaintiffs treating physician, Schisler v. Sullivan. 3 F.3d 563,567—68(2d Cir. 1993),the treating
physician's findings need not be given controlling weight if they are inconsistent with other
substantial evidence in the record, including—when appropriate—^the opinions of other medical

experts. Burgess. 537 F.3d at 128 (finding that a treating physician's opinion is not controlling
when

other

substantial

evidence

in

the

record

contradicts

it);

20

C.F.R.

§ 404.1527(d)(2). "Substantial evidence means 'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Shaw. 221 F.3d at 131. However,"not all
expert opinions rise to the level ofevidence that is sufficiently substantial to undermine the opinion
of the treating physician." Burgess. 537 F.3d at 128. Accordingly, the opinion of a consultative
physician,"who only examined a Plaintiff once, should not be accorded the same weight as the
opinion of[a] Plaintiffs treating [physician]." Anderson v. Astrue. No.07-CV-4969(DLI),2009
WL 2824584, at *9 (E.D.N.Y. Aug. 28, 2009). "This is because 'consultative exams are often
brief, are generally performed without the benefit or review of claimant's medical history and, at

best, only give a glimpse ofthe claimant on a single day.'" Id.(quoting Cruz v. Sullivan. 912 F.2d
8, 13 (2d Cir. 1990)).

The opinions proffered by Drs. LeBeau and Govindaraj do not suffice as "substantial
evidence" under this Circuit's standard and are inadequate to override Plaintiffs treating

22

physicians' opinions or to support the ALJ's RFC determination. The ALJ accorded Dr. LeBeau

"great weight" because he is board certified in internal medicine and cardiology, and because the
ALJ considered Dr. LeBeau's opinions—save for his conclusions regarding how much Plaintiff
can lift or use his left arm—^to be "consistent with the objective medical evidence." (R. at 38.)

The ALJ also afforded "great weight"to Dr. Govindaraj because his opinions"are based on clinical

findings, and they are consistent with the objective medical evidence in the record," although
likewise assigned "little weight" to Dr. Govindaraj's opinion regarding Plaintiffs left arm. (IdJ
The ALJ did not identify, however, what specific evidence or clinical findings caused him to accept

these experts' opinions as more consistent with the record than the opinions of Plaintiffs treating

physicians. Snell. 177 F.3d at 134 (holding that Commissioner must "explain why a treating
physician's opinions are not being credited"). As discussed below, such reliance on these two
consultative opinions was in error.^
A.

Dr. LeBeau

Dr. LeBeau never examined Plaintiff, but instead reached his conclusions regarding

Plaintiffs RFC based on his purported "review ofthe entire medical record." (R. at 38.) However,

medical reports that are not based on personal observation "deserve little weight in the overall
evaluation of disability." Vargas v. Sullivan. 898 F.2d 293, 295—96 (2d Cir. 1990); see
also Filocomo v. Chater. 944 F. Supp. 165,170 n.4(E.D.N.Y. 1996)(holding that reliance on RFC

^ The ALJ stated generally that "the consultative examiners are given great weight because they are based on clinical
findings." (R. at 38.) To the extent that the ALJ intended by this conclusory statement to accord great weight to Dr.
Flores' opinion, without any further discussion of Dr. Flores' findings, this too was in error. Indeed, in the SSA's
initial RFC determination (after which Plaintiff sought a hearing before the ALJ), the Commissioner concluded that

Dr. Flores' opinions that Plaintiff was "limited in raising the left upper extremity above the head, fully squatting,
bending, toe walking and ... limited in prolonged walking, sitting, standing, climbing stairs, and heavy lifting,"(id
at 403), were "too vague to translate into usual RFC terms." fid at 78.) It is well established that a consulting expert's
opinion is"not substantial" and thus is insufficient to undermine the opinion ofa treating physician when it is"couched
in terms 'so vague as to render it useless in evaluating' the claimant's residual functional capacity." Burgess, 537
F.3d at 129 Cquoting Currv v. Apfel. 209 F.3d 117, 123(2d Cir. 2000)).
23

assessment "completed by a doctor who never physically examined Plaintiff would be
"unfounded, as the conclusions of a physician who merely reviews a medical file and performs no
examination are entitled to little if any weight"). Moreover, even if an examiner's review of the
entire record were a sufficient reason for according his opinions "great weight," Dr. LeBeau's

conclusions regarding Plaintiffs capabilities would belie the accuracy of his review and
undermine the ultimate findings in his RFC. Dr. LeBeau's review of Plaintiffs record appeared

largely centered on Plaintiffs heart health, of which Plaintiff complains, but which is not the
primary basis for his disability claim. Cf. Green-Youneer. 335 F.3d at 107—08(finding conclusion
of consulting physician not "substantial" when based on consideration other than that which
claimant complained of). He notes that, in his view, the records sent to him "state repeatedly that

neurological examination is normal," (R. at 659), despite the fact that he appears to have been

referring specifically to the results of Plaintiffs April 1, 2014 MRI of the cervical spine a
radiological, rather than neurological finding—^which revealed spondylosis with disc space

narrowing at C4/5 (which also exhihited a right foraminal hemiated disc with right foraminal
narrowing), C5/6, and C6/7 (which also exhibited a bulge of the disc and endplate hypertrophic
changes),(id at 652). He notes Plaintiffs L3/4 radiculopathy, but fails to note Plaintiffs 2012
diagnosis of cervical vertebrogenic radiculitis, which is supported by his 2014 cervical MRI,(id.
at 343); the February 2012 MRI showing a postrerior annular bulge at L5/S1, with left foraminal
extension and narrowing and abutment of the exiting left L5 nerve root, (id at 350); or the
November 19,2012 MRI showing facet hypertrophy and mild-to-moderate lumbar stenosis at L3/4

and L4/5,(id at 526,594). He further notes that the record does not state whether Plaintiffis rightor left-hand dominant,(id at 662),even though his own prior RFC indicated that Plaintiff is right-

24

hand dominant,(id at 648), and this fact is repeated throughout the record, ("see, e.g., id. at 180,
250, 399, 527,619).

Dr. LeBeau's resulting RFC opines that Plaintiff can continuously carry up to ten pounds,

frequently carry up to twenty pounds, and occasionally carry up to fifty pounds. (Id at 661.) He

further found that Plaintiff could continuously reach overhead with his left hand.'^ (Id at 662.) As
is made clear by the ALJ's rejection ofthese portions of Dr. LeBeau RFC,the ALJ's conclusions
indicate that Dr. LeBeau was unaware ofthe severity ofPlaintiffs shoulder injury and undermine
the ALJ's contention that Dr. LeBeau reviewed the entire record. Moreover, Dr. LeBeau's RFC

was unaccompanied by any reference to medical or clinical findings to support his various
conclusions, as the RFC form requires. (Id at 660-65.) Because Dr. LeBeau failed to account for
one of Plaintiffs most serious injuries and primary complaints—and because his interrogatory

responses highlight gaps in his review of the record—^his ultimate RFC opinion is unreliable and
cannot be salvaged merely by according little weight to the finding most clearly attributable to the
error.

Given Dr. LeBeau's obvious failure to consider Plaintiffs shoulder injury—and,

accordingly, the pain or complications associated therewith—in determining the RFC, his
conclusions throughout the RFC are suspect and the ALJ erred by relying upon them. See, e.g..
Burgess. 537 F.3d at 130-31 (finding that ALJ erred by relying upon the opinion of an expert who

failed to examine a key piece of evidence in the record); Skupien v. Colvin. No. 13-CV-403

(WMS), 2014 WL 3533425, at *4 (W.D.N.Y. July 16, 2014)(finding that where a consulting
examiner's "no restrictions" opinion is "inconsistent with his examination findings" the"ALJ was

" Dr. LeBeau's initial RFC also found that Plaintiff could occasionally climb ladders and scaffolds and occasionally

be exposed to unprotected heights. (R. at 626—27.) In his revised RFC,Dr. LeBeau concluded that Plaintiff can never
climb ladders and scaffolds or be exposed to unprotected heights, but because he does not indicate what particular
medical or clinical findings he relied upon in making this alteration, the Court is unable to determine the basis for his
conclusions. The ALJ should have sought "clarification and additional information from [Dr. LeBeau], as needed,"
to fill the gap before rejecting his opinion. Ahisar. 2015 WL 5719710, at ""12.
25

required to reconcile the inconsistency or, if he could not do so, seek clarification" from the
examiner).^
B. Dr. Govindaraj

Dr. Govindaraj examined Plaintiff once on February 4, 2014. His findings misstate
Plaintiffs medical record and are at odds with the vast majority ofthe evidence in the record. For

instance, he notes that Plaintiff"drives" and "does a lot of walking," and that Plaintiff had declined
Dr. Drucker's recommendation that he pursue surgery for his back pain. (R. at 620.) The ALJ

relied specifically on some of these findings to determine that Plaintiffs allegation of disability
were not credible. (Id at 38.) However, Dr. Drucker never recommended that Plaintiff undergo

back surgery; at most. Dr. Drucker noted that Dr. Kwon had considered Plaintiff a candidate for

follow-up shoulder surgery. (See id at 552.) Moreover, Dr. Govindaraj's claim that Plaintiff
walks a lot is at odds with Plaintiffs repeated complaint throughout the record that his pain is

aggravated by walking for extended periods oftime. (See, e.g.. id. at 77,154,172,180,259, 343,
400, 561, 570, 572, 593.) Nor did Dr. Govindaraj appear to review the entire medical record,
because there is no indication that he considered Plaintiffs MRIs or other existing objective

medical evidence that would have been crucial to determining the extent of Plaintiffs injuries.

Finally, Dr. Govindaraj's clinical findings differ substantially from every other set ofexam results
contained in the record,including those ofPlaintiffs treating physicians. Selig v. Richardson. 379

F. Supp. 594, 601 (E.D.N.Y. 1974)("[Ojnce it is determined that an impairment exists, the

opinions ofthe treating physician are entitled to substantially greater weight than the impressions

^ Indeed, there is only one other part ofthe medical record which acicnowledges that Plaintiffsuffered from a shoulder
injury in the past but concluded that this injury no longer limited his physical abilities and that the entire neurological
examination is "normal": Dr. Govindaraj's single examination ofthe Plaintiff.
Green-Younger. 335 F.3d at 108
(finding conclusion ofconsulting physician not"substantial" when apparently based entirely on "one-shot" evaluation
reporting inconsistent results).
26

of a doctor who sees the claimant only once, especially where [the treating physician] has treated
the claimant over a substantial period of time." (intemal citation omitted)). Most notably, he is

the only examining physician to find that Plaintiffs straight-leg test was normal and, although

noting past trauma to Plaintiffs shoulder, seemingly failed to examine it and opined that Plaintiff

faced no special restrictions in its use.^ (R. at 619-28.) Like Dr. LeBeau's conclusions. Dr.
Govindaraj's RFC determinations were unsupported by reference to medical or clinical findings,
and the ALJ in his decision did not identify which of Dr. Govindaraj's findings the ALJ found to
be consistent with the record or to support Dr. Govindaraj's conclusions. The ALJ's cursory

scrutiny of the examining experts' findings and conclusions, compared to his second guessing of
Plaintiffs treating physicians' opinions, is lopsided and warrants remand.
III.

Weight Afforded to Treating Physicians

Even if a treating physician's opinion is not given "controlling" weight, the regulations

require the ALJ to consider several factors in determining how much weight it should receive.^
20 C.F.R. § 404.1527(d)(2). Among other factors, the ALJ must consider (1)"the frequency of
examination and the length, nature and extent of the treatment relationship,"(2)"the evidence in

support of the opinion," (3) "the opinion's consistency with the record as a whole," and (4)
"whether the opinion is from a specialist." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118(2d
Cir. 1998). In general,"the longer a treating source has treated [the claimant] and the more times

[the claimant] ha[s] been seen by a treating source, the more weight[the Commissioner] will give
to the source's medical opinion."

Burgess. 537 F.3d at 129 (quoting 20 C.F.R.

^ After recounting Plaintiffs various maladies, the treatment for which are well documented in the record, Dr.
Govindaraj enigmatically added that Plaintiff"is not being treated with any appropriate therapy." (R. at 622.) This
contradicts the ALJ's determination—which he relied upon in part to find that Plaintiff was not disabled—^that Plaintiff
suffers from "sleep apnea, asthma, cardiac conditions, and gastrointestinal problems but those seem to be under
control" by virtue of, among other things. Plaintiffs stent placement and use of a continuous positive airway pressure
("CPAP")machine. Qd at 38-39.)
27

§ 404.1527(c)(2)(i)). If, after reviewing these factors,the ALJ chooses to reject or marginalize the

treating physician's opinions,the ALJ must"comprehensively set forth [his or her] reasons for the

weight assigned to a treating physician's opinion." Halloran v. Bamhart. 362 F.3d 28,33(2d Cir.
2004)(per curiam). "The failure to provide 'good reasons' for not crediting a treating source's

opinion is ground for remand." See Burein v. Astrue. 348 F. App'x 646, 648 (2d Cir. 2009)
(quoting Halloran. 362 F.3d at 33).

Based on his conclusion that the treating physicians' opinions were unsupported by the

objective evidence,the ALJ afforded "little weight"to the opinions of, among others, Drs. Drucker
and Chapman. In reaching this conclusion, however, the ALJ failed to consider the frequency,
nature, and extent of the physicians' relationship with Plaintiff or the fact that both are specialists

in their respective fields. As noted above. Dr. Drucker had been treating Plaintiff on a nearly

monthly basis for two years, while Dr. Chapman had treated Plaintiff roughly monthly for half a

year in 2012. Dr. Drucker, who treated Plaintiff for his shoulder and lower back pain, is board
certified in Physical Medicine and Rehabilitation, while Dr. Chapman—^who also treated Plaintiff
for his shoulder and lower-back pain—is board certified in Pain Management and Anesthesiology.

Although the ALJ noted the elements ofthe record alleged to be inconsistent with the findings of

Drs. Drucker and Chapman, and arguably considered the evidence in support of their findings,''
the ALJ's failure to consider all the factors required by § 404.1527(d)(2) constitutes legal error

and is also a groimd for remand. See Clark v. Astrue. No. 08-CV-10389 (LBS), 2010 WL
3036489,at *4(S.D.N.Y. Aug.4,2010); Ramos v. Comm'r of Soc. Sec.. No. 13-CV-3421 (KBF),
2015 WL 7288658, at *7 (S.D.N.Y. Nov. 16, 2015). Indeed, in one breath, the ALJ discounted

^ The ALJ recounts the findings of decreased range of motion, although he downplays the shoulder limitations as
"mild[]." (R. at 38.) The ALJ fiirther notes that "some" examinations showed positive straight-leg raising, but that
this was "not shown consistently throughout the record," tid.'). which, as noted above, does not accurately capture the
weight of the clinical evidence in support of positive straight-leg raising.
28

the opinions of four providers who, together, treated Plaintiff dozens of times, in favor of the
opinions oftwo consulting physicians who,together, saw Plaintiff only once. (R. at 38.)Nor does
the ALJ distinguish between the four providers whose opinions he discredits, despite the fact that

one is a physical therapist(Cardello), another a chiropractor (Guariglia), while the other two(Drs.

Chapman and Drucker) are board-certified physicians, the latter of whom had a multi-year
treatment relationship with Plaintiff. Such undifferentiated consideration of the opinions of

treating physicians and other sources does not accord with the Commissioner's regulations and
cannot provide the necessary'"good reasons' for the weight[the ALJ]gives to the treating source's
opinion." Halloran. 362 F.3d 28, 32-33(2d Cir. 2004).

Finally, having given little weight to the RFCs of Drs. Drucker and Chapman, which were

the only RFCs on the record to properly account for Plaintiffs shoulder injury, the ALJ did not
support his own RFC determinations regarding Plaintiffs use of his arm with any competent

medical opinion. The determinations appear instead to have been based on the ALJ's interpretation
ofthe raw medical evidence, which constituted reversible error.

Lowe v. Colvin. No. 15-CV-

6077(MAT), 2016 WL 624922, at *7(W.D.N.Y. Feb. 17, 2016)("Because Dr. Sheehan is the

only medical opinion in the record to assess Plaintiffs ability to lift and carry with specificity, and
because the ALJ ultimately gave little evidentiary weight to that opinion, the Court is 'left with

the circumstance ofthe ALJ interpreting raw medical data to arrive at a residual ftmctional capacity
determination, without the benefit of an expert medical opinion.'"(quoting Tomford v. Comm'r
of Soc. Sec.. No. 13-CV-11140(TGB), 2014 WL 764685, at *16 (E.D. Mich. Feb. 25, 2014)));
Staggers V. Colvin.No. 14-CV-717(JCH),2015 WL 4751123,*2(D.Conn. Aug. 11,2015)("[A]n
ALJ who makes an RFC determination in the absence of supporting expert medical opinion has

improperly substituted his own opinion for that of a physician, and has committed legal error."

29

(quoting Hilsdorf v. Comm'r of See. Sec.. 724 F. Supp. 2d 330,347(E.D.N.Y. 2010))). Likewise,
having given little weight to the RFCs of Drs. Chapman and Drucker, and in light of the Court's
conclusions that the reports by Drs. LeBeau and Govindaraj were inadequate, the ALJ failed to

rely upon any adequate medical opinion to support his determination ofPlaintiffs other functional
capabilities. "By failing to support the RFC determination with proper expert medical evidence,
the ALJ committed legal error." Hilsdorf. 724 F. Supp. 2d at 348.
CONCLUSION

For the reasons set forth above, the Commissioner's cross-motion for judgment on the

pleadings is denied. Plaintiffs motion for judgment on the pleadings is granted. The ALJ's
decision is reversed and the matter is remanded to the ALJ under the fourth sentence of42 U.S.C.

§ 405(g)for further proceedings consistent with this Memorandum and Order.

SO ORDERED.

Dated: November

s/Carol BagleyAmon

2017

Brooklyn, New York

T^arol Bagle3^Am(j
United States District Judge

30