Coleman v. Commissioner of Social Security

Filing 22

ORDER denying 13 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings. For the reasons discussed in the attached Memorandum and Order, Plaintiff's cross-motion for judgment on the pleadings is granted and the Commissioner's motion for judgment on the pleadings is denied. 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 3/27/2017. (Hawkins, Salah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------MARK F. COLEMAN,
Plaintiff,

MEMORANDUM & ORDER
15-CV-6624 (MKB)

v.
COMMISSSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Mark F. Coleman commenced 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 claims for supplemental security income and social security
disability insurance under the Social Security Act (the “SSA”). (Am. Compl., Docket Entry No.
8.)1 The Commissioner moves for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, arguing that substantial evidence supports Administrative Law
Judge Jay Cohen’s (the “ALJ”) decision that Plaintiff was not disabled. (Comm’r Mot. for J. on
the Pleadings (“Comm’r Mot.”), Docket Entry No. 13; Comm’r Mem. of Law in Supp. of
Comm’r Mot. (“Comm’r Mem.”), Docket Entry No. 14.) Plaintiff cross-moves for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that the
ALJ (1) failed to give controlling weight to Plaintiff’s treating physicians, and (2) omitted the
opinions of one of Plaintiff’s treating physicians from Plaintiff’s residual functional capacity

1

Plaintiff filed his initial complaint pro se, but filed the Amended Complaint after
retaining counsel. (See Compl., Docket Entry No. 1; Notice of Appearance by Howard D.
Olinsky on behalf of Plaintiff; Docket Entry No. 7; Am. Compl.)

(“RFC”) assessment, which led to the ALJ’s erroneous determination that Plaintiff could perform
a job that existed in significant numbers in the economy. (Pl. Cross-Mot. for J. on the Pleadings
(“Pl. Mot.”), Docket Entry No. 16; Pl. Mem. of Law in Supp. of Pl. Mot. (“Pl. Mem.”), Docket
Entry No. 17.) For the reasons discussed below, the Court grants Plaintiff’s cross-motion for
judgment on the pleadings, denies the Commissioner’s motion for judgment on the pleadings and
remands the case for further proceedings consistent with this Memorandum and Order.
I.

Background
Plaintiff is currently fifty-five years old. (Certified Admin. Record (“R.”) 184, Docket

Entry No. 12.) Plaintiff has a bachelor’s degree in human services. (R. 63.) From August of
2004 to April of 2011, the Salvation Army employed Plaintiff as a maintenance worker, which
employment entailed various janitorial duties. (R. 226, 253, 255, 261.) Plaintiff began suffering
back and shoulder pain in 2008, after he was involved in a car accident. (R. 298.) In 2010,
Plaintiff was diagnosed with prostate cancer and began receiving radiation treatment shortly
thereafter. (R. 318–19, 321, 342–43, 390.) The prostate cancer went into remission in 2011 and
remains in remission. (R. 68, 235–36, 320, 327, 340.) Plaintiff maintains that he was unable to
continue working after April 15, 2011, due to his mental and physical ailments. (R. 221, 225.)
Plaintiff applied for supplemental security income and social security disability insurance
on August 21, 2012, asserting that he was disabled based on degenerative disc disease of the
spine, disc herniation, disc bulges, frank spinal stenosis, arthritis of the lower back and hips,
prostate cancer, depression and alcoholism. (R. 221, 225.) On October 18, 2012, a disability
adjudicator issued a report initially denying Plaintiff’s application. (R. 99–111.) Plaintiff
requested a hearing before an administrative law judge (“ALJ”), which hearing occurred on
November 14, 2013, before the ALJ. (R. 58–93, 135.) After the hearing, the ALJ found that

2

Plaintiff was not disabled between April 15, 2011 (the “alleged onset of disability”), and August
7, 2013, but was disabled as of August 8, 2013. (R. 20–38.) Plaintiff filed an appeal challenging
the ALJ’s decision that he was not disabled between April 15, 2011 and August 7, 2013 (the
“Contested Period”). (R. 16.) The Appeals Council declined review, and Plaintiff filed a timely
appeal with the Court. (R. 1–5; Compl., Docket Entry No. 1.)
a.

Hearing before the ALJ

On November 14, 2013, the ALJ held a hearing regarding Plaintiff’s application for social
security benefits. (R. 58–92.) The ALJ heard testimony from Plaintiff, Sharon Grand, M.D., and
Andrew J. Pasternak, a vocational expert.2 (R. 58–92.) Plaintiff appeared with counsel. (R. 58–
92.)
i.

Plaintiff’s testimony

Plaintiff testified as follows. At the time of the hearing, he lived with his wife and
granddaughter. (R. 63.) He was previously employed as a maintenance worker for the Salvation
Army, where he performed various janitorial duties. (R. 64–65.) The heaviest items he lifted
during his employment weighed between thirty-five and fifty pounds. (R. 65.) He was unable to
work because he had “pain that . . . radiates down both [of his] legs,” which pain stemmed from
the pain in his back. (R. 66.) He was able to sit and stand for approximately forty-five minutes
to an hour, depending on how well he slept the previous night. (R. 66.) He could walk for
approximately two blocks and could lift up to ten pounds. (R. 66.) He previously suffered from
prostate cancer, but it went into remission after he received radiation treatment and it remained in
remission thereafter. (R. 67–68.) As a result of the radiation treatments, he had trouble with his

2

The hearing transcript identified Pasternak as Pasnek. (Compare R. 59 with R. 172
(curriculum vitae of Andrew J. Pasternak).)

3

bladder and his bowels. (R. 66.) He had trouble sleeping at night due to pain and cramps in his
legs and shoulders. (R. 76.) He used a cane to ambulate and had a cane with him at the hearing.
(R. 77.) Although he was prescribed the cane in 2013, he had used it since 2012. (R. 77.) He
had trouble climbing the stairs in his home, and as a result, he slept on the ground level of the
home occasionally. (R. 77–78.) He also had trouble dealing with his family and strangers on
public transportation. (R. 78.) He had problems concentrating and remembering dates and
appointments. (R. 79.) He could read if he could stay focused. (R. 79.) He was receiving
psychological treatment by Dr. Imran Shaikh, who had prescribed him Wellbutrin and Seroquel.
(R. 72–73.)
Plaintiff also explained his daily activities. (R. 73.) He went to the community center,
where he would talk with children who attended the community center’s after-school program.
(R. 73.) Sometimes, after leaving the community center, he traveled to his granddaughter’s
school to check in on her. (R. 73.) Whenever possible, he would get a ride to alcoholics’
anonymous meetings. (R. 74.) He had been sober since August of 2012.3 (R. 76.)
Occasionally, he cooked, but he did not clean, shop or drive. (R. 74.) For leisure, he watched
movies at home and sometimes his friends would visit him at home on Fridays. (R. 74.) His
family, however, never visited him. (R. 75.) He was able to use public transportation, but if he
was unable to get a seat and had to stand, he would lose feeling in his legs and use the support
bars to prevent himself from falling. (R. 75.)

3

Plaintiff’s testimony regarding his date of sobriety is inconsistent. During a visit with
Dr. Imran Shaikh in June of 2013, Plaintiff reported that he had been sober since April of 2013,
(R. 512), but at the hearing before the ALJ, Plaintiff testified that he had been sober since
August of 2012, (R. 76).
4

ii.

Dr. Grand’s testimony

Based on a review of the evidence in Plaintiff’s record, Dr. Grand gave an opinion as to
Plaintiff’s mental impairments. (R. 80–81, 84.) Dr. Grand testified that Plaintiff had a history of
depressive disorder, not otherwise specified, and alcohol dependence, which was in remission.
(R. 81.) Plaintiff’s depressive symptoms “would impact his ability to cope with stress, so he
would be limited to a low-stress job and also a job that is routine, not necessarily repetitive.”
(R. 82.) His time with coworkers, supervisors and the public would need to be limited to fiftypercent of his workday due to his mental impairments, and he would also need “some breaks”
during the day. (R. 82.) Dr. Grand opined that nothing in the record indicated or supported a
finding that Plaintiff likely would miss work more than three times per month. (R. 82–83.) She
also opined that substance abuse was not a “material factor in the limitations” identified. (R. 83.)
Dr. Grand concluded that Plaintiff’s severe impairments failed to meet or equal a listing in
Appendix 1 of the Social Security Regulations. (R. 83.)
iii. Vocational expert testimony
After reviewing the evidence in Plaintiff’s record, Mr. Pasternak, the vocational expert,
testified as follows. (R. 84.) The ALJ asked Pasternak
to consider a person of [Plaintiff’s] age, education and work history,
who was limited to the performance of light work with the following
additional limitations: routine work . . . with the ability to be in
contact with supervisors, coworkers and the public for [fifty] percent
of the workday; no requirement to make job-related discretionary
decisions or deal with potential conflict situations and not subject to
rate quotas.
(R. 86.) Mr. Pasternak testified that such person could not perform Plaintiff’s previous
employment as a maintenance worker. (R. 86.) Mr. Pasternak testified that the described
hypothetical person could, however, perform “light level” jobs as a “Hand Packager,”
“Assembler” and “Hotel/Motel Cleaner.” (R. 87–88.) At the “medium” level, the described
5

hypothetical person could perform the job of a “Dishwasher,” “Vehicle Cleaner” and “Parks
Worker.” (R. 88–89.) Plaintiff’s counsel asked Pasternak to assume that the described
hypothetical person “required the use of a cane for ambulation.” (R. 89.) Pasternak testified that
such a person could not perform the medium or light level jobs he mentioned previously.
(R. 90.) The ALJ asked if such a person could perform “any jobs at the light level.” (R. 91.)
Pasternak testified that the person could perform light level jobs as a “Ticket Taker,” “Sewing
Machine Operator” and “Inspector.” (R. 91–92.)
b.

Plaintiff’s physical impairments
i.

Dr. Choong Kwon Kim

In November of 2008, Plaintiff was involved in a motor vehicle accident. (R. 298.) After
the accident, Plaintiff was suffering from neck, back and shoulder pain and sought treatment
from Choong Kwon Kim, M.D. (R. 298.) Dr. Kim initially examined Plaintiff in December of
2008 and referred Plaintiff for a magnetic resonance imaging exam (“MRI”) of his back.
(R. 298.) The MRI was conducted in January of 2009 and revealed: scoliosis and straightening
of the spine possibly due to spasms; multiple herniation in the central disc; disc bulges; and frank
spinal stenosis. (R. 305.)
During a visit with Dr. Kim later that month, Plaintiff complained of moderate pain in his
back that increased on flexion and extension and radiated to his lower extremities, as well as
moderate and constant pain in his shoulder that increased when he elevated his arm. (R. 298–
300.) Based on an MRI, Dr. Kim noted that Plaintiff had cervical spine disc bulges. (R. 298.)
Dr. Kim made the following observations after examining Plaintiff: moderate tenderness over the
lower cervical spine, with left upper trapezius muscle spasm; restricted range of motion of the
cervical spine due to pain; positive Spurling sign; positive Soto-Hall sign test; as to the left
shoulder there was moderate tenderness over the anterior and posterior aspect; and impingement
6

sign was positive. (R. 299.) Dr. Kim also examined Plaintiff’s lumbar spine and found moderate
tenderness over the lumbosacral area, with paralumbar muscle spasms; flexion and extension of
the lumbar spine was painful and moderately restricted; straight leg raising test was positive
bilaterally at about seventy degrees; and Milgram sign was positive. (R. 299.) The remaining
tests produced negative results. (R. 299.) Dr. Kim opined that Plaintiff had cervical spine
interval derangement, lumbar spine internal derangement, symptoms of cervical radiculopathy
with radicular pain into the left shoulder, symptoms of lumbosacral radiculopathy with radicular
pain into both lower extremities, traumatic myofascitis dysfunction syndrome and left shoulder
pain. (R. 300.) Dr. Kim concluded that Plaintiff’s ailments directly resulted from the motor
vehicle accident and that Plaintiff was “presently and partially disabled for his work for an
undetermined period as a result of his injuries.” (R. 300.) Dr. Kim recommended that Plaintiff
continue physical therapy treatment. (R. 300.)
ii.

Dr. Viviane Etienne

In March of 2009, Plaintiff visited Viviane Etienne, M.D. (R. 316.) Plaintiff complained
of neck pain and lower back pain that radiated to his legs. (R. 316.) Dr. Etienne examined
Plaintiff’s cervical spine and observed that Plaintiff’s active and passive range of motion had
improved, but he had mild paracervical muscle spasms on rotation and that Plaintiff had bilateral
mild muscle spasticity. (R. 316.) On examination of Plaintiff’s lumbar spine, Dr. Etienne
observed that Plaintiff had partial pain and restrictions in all directions, moderate lumbosacral
paraspinal muscle spasms, positive bilateral straight leg raise at thirty degrees, bilateral muscle
spasticity in the lumbar and gluteal/piriformis musculature and an improved active and passive
range of motion. (R. 316.) Dr. Etienne noted that an MRI of Plaintiff’s lumbosacral spine
reflected two hernias, three bulges, spasms and stenosis. (R. 317.) Dr. Etienne diagnosed
Plaintiff with traumatic cervical paraspinal myofascitis with discogenic radiculopathy and
7

intersegmental dysarthria, traumatic lumbar paraspinal myofascitis with discogenic
radiculopathy and extension of sciatic neuropathy. (R. 317.) Dr. Etienne issued rule-out4
diagnoses as to cervical and lumbosacral radiculopathy. (R. 317.) Dr. Etienne recommended
that Plaintiff continue active physical therapy two to three times per week, engage in home
exercise with home-based physical therapy and that Plaintiff return for a follow-up examination
in four weeks. (R. 317.)
The following month, Plaintiff returned to Dr. Etienne for a follow-up examination.
(R. 313.) Plaintiff complained that he was suffering from weakness in both legs as well as neck
and lower back pain, but reported that since his last visit the severity of the pain had reduced by
seventy percent in both areas. (R. 313.) Dr. Etienne examined Plaintiff’s cervical spine and
observed improved active and passive range of motion with mild paracervical muscle spasms;
mild muscle spasticity in the cervical musculature; and that range of motion was normal
regarding flexion, extension, left rotation, right rotation, left lateral flexion and right lateral
flexion as measured by an inclinometer. (R. 313.) Dr. Etienne’s examination of Plaintiff’s
lumbar spine revealed improved active and passive range of motion in all directions with mild
lumbosacral and bilateral quadriceps muscle spasms; bilateral muscle spasticity in the lumbar
musculature; and normal range of motion for flexion, extension, left lateral flexion and right
lateral flexion as measured by an inclinometer. (R. 313.) Dr. Etienne noted that Plaintiff’s
electromyography (“EMG”) results were positive for C6 radiculopathy. (R. 314.) Dr. Etienne
opined that Plaintiff had traumatic musculo-ligamentous sprain/strain of the neck, traumatic
cervical paraspinal myofascitis with discogenic radiculopathy and intersegmental dysarthria,

4

A “rule-out” diagnosis means that the physician is unable to make a medical
determination based on the evidence currently available to him or her. See Talavera v. Astrue,
697 F.3d 145, 150 (2d Cir. 2012).
8

traumatic lumbar paraspinal myofascitis with discogenic radiculopathy, extension of sciatic
neuropathy and lumbosacral joint ligament sprain. (R. 314.) Dr. Etienne issued rule-out
diagnoses for cervical and lumbar radiculopathy. (R. 314.) Dr. Etienne recommended that
Plaintiff continue active physical therapy one to two times per week, engage in home exercise
with home-based physical therapy and perform stretch and strength exercises. (R. 314.)
Dr. Etienne’s prognosis was guarded.5 (R. 314.)
iii. Prostate cancer physicians
In 2010, Plaintiff was under the care of William Johnson, M.D., a primary care physician,
and Carlton Branswell, M.D., a urologist, who referred Plaintiff for a biopsy of the prostate
under suspicion that he may have prostate cancer. (R. 318–19.) Niti Dube, M.D., conducted the
biopsy in September of 2010, analyzed the biopsy sample and concluded that Plaintiff had
prostate cancer. (R. 318–19.) Dr. Nube informed Plaintiff that the cancer could be treated with
surgery or targeted radiation treatments. (R. 319.) Plaintiff chose the latter. (R. 319.)
Dr. Nube also conducted a full medical history evaluation of Plaintiff, which included a
bone scan and a cervical spine x-ray. (R. 318.) The bone scan revealed an abnormality at the C6
vertebrae, and the cervical spine x-ray revealed degenerative disease. (R. 318.)
Plaintiff’s radiation treatments began in April of 2011 and ended in July of 2011.
(R. 320.) In August of 2011, Plaintiff had a post-radiation follow-up examination, which
included a physical examination. (R. 326.) The physical examination notes stated, among other
things, that Plaintiff did not have any tenderness in his neck, back, spine or ribs. (R. 326.)
Plaintiff was instructed to attend future follow-up appointments with Dr. Branswell. (R. 327.)
5

“Guarded prognosis refers to a prognosis given by a physician [expressing that] the
outcome of a patient’s illness is in doubt.” Taber’s Cylcopedic Medical Dictionary, 914 (21st ed.
2009).

9

Between March of 2011 and February of 2012, Plaintiff was examined by Dr. Branswell on five
separate occasions, and as relevant here, Dr. Branswell noted that Plaintiff never complained of
back pain. (R. 412, 436, 438, 447, 452.)
After concluding the targeted radiation treatment, Plaintiff’s prostate cancer went into
remission and currently remains in remission. (R. 68, 235–36, 320, 327, 340.)
iv. Dr. Eduardo Fuzaylov
In July of 2012, Plaintiff saw Eduardo Fuzaylov, M.D., complaining of cramps and a
decreased range of motion in his lower extremities, numbness and burning in his feet, difficulty
walking, difficultly getting out of bed and lower back stiffness and pain, which all had
progressed over the preceding months. (R. 556–57.) Dr. Fuzaylov observed that Plaintiff had
back muscle cramps, back pain, a decreased range of motion in the lumbar spine due to muscle
spasms and that Plaintiff was unable to lie flat on his back. (R. 556–57.) Dr. Fuzaylov noted
that a 2010 MRI showed that Plaintiff had multilevel stenosis. (R. 557.) Dr. Fuzaylov
recommended that Plaintiff undergo a lumbar spine MRI because his symptoms had progressed
recently. (R. 557.)
Plaintiff saw Dr. Fuzaylov again in August of 2012, during which visit Plaintiff reported
that his back felt better and that he had fewer muscle spasms. (R. 558.) Dr. Fuzaylov observed
that Plaintiff’s lumbar spine had fewer spasms and flexion was about sixty percent. (R. 558.)
Dr. Fuzaylov noted that he would make further assessments of Plaintiff’s back pain once he
received the MRI results, but also prescribed a muscle relaxer for the pain. (R. 558.)
Plaintiff had two visits with Dr. Fuzaylov in September of 2012. (R. 263–64, 559.)
During the first visit, Plaintiff complained of lower back pain that radiated to his lower
extremities. (R. 263.) Dr. Fuzaylov examined Plaintiff and diagnosed Plaintiff with moderate to
severe spinal stenosis, specifically, multilevel lower lumbar spondylosis with multilevel bilateral
10

neural foraminal narrowing. (R. 264.) Five days later, Dr. Fuzaylov met with Plaintiff again and
again noted that Plaintiff had moderate to severe spinal stenosis. (R. 559.) Plaintiff reported that
the muscle relaxers provided some pain relief, and Dr. Fuzaylov referred Plaintiff to a physical
therapist for a pain management consultation.6 (R. 559.)
Plaintiff returned to Dr. Fuzaylov in November of 2012, complaining of lower and
middle back pain. (R. 561.) Dr. Fuzaylov planned an epidural injection for Plaintiff.7 (R. 561.)
Dr. Fuzaylov observed mild paraspinal muscle spasms and no change in the range of motion in
Plaintiff’s lumbar spine. (R. 561.) Dr. Fuzaylov recommended that Plaintiff take Tylenol or
Motrin for pain management.8 (R. 561.)
v.

Dr. Joyce Graber — Consultative Examination

After Plaintiff applied for social security benefits, Joyce Graber, M.D., examined Plaintiff
to assess his physical limitations as they existed in October of 2012. (R. 359–62.) Plaintiff
reported that he suffered from back pain since 2008, and at the time, assessed his pain as a ten on
a scale of one to ten. (R. 359.) As to his activities of daily living, Plaintiff reported that he lives
alone, cooks once or twice a week, shops for himself, dresses himself, bathes three times a week
and does not clean, do laundry or shower. (R. 360.) Dr. Graber examined Plaintiff and observed

6

Plaintiff saw physical therapist Xiaogaung Liu, M.D., in October of 2012. (R. 568.)
Plaintiff reported back pain and weakness in his lower extremities and a pain level of six on a
scale of one to ten. (R. 568.) Dr. Liu noted that Plaintiff did not use a wheelchair, walker,
crutches or a cane. (R. 568.) Dr. Liu opined that Plaintiff was able to conduct his daily
activities, live independently and move around without assistance. (R. 568.) Dr. Liu
recommended that Plaintiff improve his range of motion, muscle strength and functioning.
(R. 568.)
7

The record does not reflect when, if ever, Plaintiff received the epidural injection.

8

In August of 2013, Plaintiff began treatment with Jeffery Perry., D.O. (R. 481–86,
542–43, 547–53.) The Court does not recount Plaintiff’s visits with Dr. Perry or Dr. Perry’s
opinions because they do not pertain to the Contested Period.
11

that Plaintiff had a normal gait, could walk on his heels and toes without difficulty, could fully
squat, had a normal stance, did not use any assistive devices, did not need any help traversing the
exam table and was able to rise from a chair without difficulty. (R. 360.) Dr. Graber also
observed that Plaintiff had full flexion, extension, lateral flexion and bilateral rotary movement
of the cervical and lumbar spine as well as the shoulders. (R. 361.) Dr. Graber diagnosed
Plaintiff with back pain by history and opined that “based upon today’s examination[,] the
claimant has no physical limitations.” (R. 362.)
c.

Plaintiff’s mental impairments
i.

Dr. Imran Shaikh

In August of 2012, Plaintiff began treatment with psychiatrist Imran Shaikh, M.D.,
through a voluntary drug treatment program. (R. 303.) Plaintiff reported that he had been
drinking alcohol since he was fourteen years old and continued to drink a half-pint of alcohol at
night to help him sleep. (R. 303.) Plaintiff also reported that his bout with prostate cancer and
the effects of the radiation treatment caused depression, and, while he had had suicidal thoughts,
he never had any plans or intentions to commit suicide. (R. 303.) Plaintiff explained that his
depression was exacerbated after his thirty-nine-year-old brother committed suicide. (R. 303.)
Dr. Shaikh observed that Plaintiff had a depressed mood with a sad and tearful affect, was mildly
anxious during the questioning, and had no suicidal thoughts, ideations or plans. (R. 304.)
Dr. Shaikh diagnosed Plaintiff with alcohol dependence and found a global assessment of
functioning (“GAF”) score of fifty.9 (R. 304.) Dr. Shaikh issued rule-out diagnoses for

9

The GAF score is a numeric scale ranging from “0” (lowest functioning) through “100”
(highest functioning). “The GAF is a scale promulgated by the American Psychiatric
Association to assist ‘in tracking the clinical progress of individuals [with psychological
problems] in global terms.’” Kohler v. Astrue, 546 F.3d 260, 262 n.1 (2d Cir. 2008) (quoting
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, at 32 (4th ed.

12

depression due to prostate cancer, depression, not otherwise specified, and mood versus bipolar
disorder, not otherwise specified. (R. 304.) Dr. Shaikh prescribed Wellbutrin for Plaintiff’s
mood and depression and Seroquel for mood stabilization and sleep aid. (R. 304.) Dr. Shaikh’s
prognosis was fair, contingent upon Plaintiff completing the treatment program. (R. 304.)
In September of 2012, Dr. Shaikh completed a disability questionnaire related to
Plaintiff’s application for social security benefits. (R. 329–37.) Dr. Shaikh noted that he
diagnosed Plaintiff with alcohol dependence and issued rule-out diagnoses for depressive
disorder and bipolar disorder, prognoses guarded. (R. 329–30.) Dr. Shaikh stated that Plaintiff
was able to perform activities of daily living. (R. 333.) Dr. Shaikh explained that, in his opinion,
Plaintiff had a depressed and irritable mood, was easily angered and feared death. (R. 333.)
Dr. Shaikh opined that Plaintiff had no limitations regarding his understanding and memory.
(R. 333.) Dr. Shaikh also opined that Plaintiff had limitations concerning his concentration and
persistence, social interactions and adaptation due to his poor concentration, depressed mood,
anger issues and low energy. (R. 334.) Dr. Shaikh attached to the questionnaire a copy of his
report from Plaintiff’s initial examination. (R. 336–37.)
Plaintiff had a follow-up examination with Dr. Shaikh in October of 2012. (R. 356.)
Plaintiff reported that he failed to see Dr. Shaikh sooner because he did not have the finances to
use public transportation or other access to transportation. (R. 356.) Plaintiff also reported that

2000) (“DSM-IV”)). “A GAF in the range of 41 to 50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Zabala v. Astrue,
595 F.3d 402, 406 n.2 (2d Cir. 2010) (alteration and internal quotation marks omitted) (citing
DSM–IV, at 34). “A GAF between 51 and 60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational
or school functioning (e.g., few friends, conflicts with peers or co-workers).” Kohler, 546 F.3d
at 262 n.1 (alteration and internal quotation marks omitted) (citing DSM-IV at 34).
13

the medication significantly improved his mood and his sleep, but he finished his medication
before he could see Dr. Shaikh for the follow-up examination and his symptoms returned.
(R. 356.) As a result, Plaintiff informed Dr. Shaikh that he returned to using alcohol to cope with
his depression and trouble sleeping, which use he regretted. (R. 356.) Dr. Shaikh diagnosed
Plaintiff with alcohol dependence, depressive disorder due to prostate cancer and mood disorder,
not otherwise specified. (R. 357–58.) Dr. Shaikh also issued a rule-out diagnosis for bipolar
disorder, and found a GAF score of fifty-one to sixty. (R. 358.) Dr. Shaikh recommended that
Plaintiff continue taking Wellbutrin and Seroquel, renewed Plaintiff’s prescriptions for those
medications and recommended that Plaintiff avoid drinking alcohol and continue with the
treatment program. (R. 358.)
Plaintiff had another follow-up visit with Dr. Shaikh in May of 2013. (R. 528.)
Dr. Shaikh noted that Plaintiff was using a cane for ambulation and had recently relapsed on his
alcohol use because he finished his medication and his insurance refused to cover the cost for a
refill. (R. 528.) Dr. Shaikh diagnosed Plaintiff with alcohol dependence and bipolar disorder,
not otherwise specified. (R. 528.) Dr. Shaikh recommended that Plaintiff continue taking the
previously prescribed medications and return for a follow-up visit in June. (R. 528.)
In June of 2013, Plaintiff completed the drug treatment program and had an exit
evaluation with Dr. Shaikh. (R. 512.) Plaintiff reported that he had been sober since April of
2013. (R. 512.) Dr. Shaikh observed that Plaintiff’s mood was good, calm and cooperative,
affect was appropriate and noted that Plaintiff had no suicidal thoughts or ideations. (R. 512.)
Dr. Shaikh diagnosed Plaintiff with alcohol dependence in remission and bipolar disorder, not
otherwise specified. (R. 512.) Dr. Shaikh recommended that Plaintiff continue taking the
previously prescribed medications and renewed the prescriptions. (R. 512.) Dr. Shaikh noted

14

that Plaintiff had completed the program and would be transitioning to seeing an outside
psychiatrist. (R. 512.) Thereafter, Plaintiff saw Dr. Shaikh on two occasions in October of 2013
for medication and prescription management. (R. 518–19, 521–22.) Dr. Shaikh’s report of those
visits largely mirrored his report of the June 2013 visit. (R. 518–19, 521–22.)
In October of 2013, Dr. Shaikh completed a psychiatric/psychological impairment
questionnaire related to Plaintiff’s application for social security benefits. (R. 534.) Dr. Shaikh
noted that he had diagnosed Plaintiff with alcohol dependence and major depressive disorder,
prognoses guarded. (R. 534.) Dr. Shaikh also noted that Plaintiff’s most recent GAF score was
fifty-five to sixty. (R. 534.)
The questionnaire asked for Dr. Shaikh’s opinions concerning Plaintiff’s mental abilities
related to understanding and memory, concentration and persistence, social interactions and
adaptation. (R. 537–39.) For six out of the twenty categories regarding Plaintiff’s mental
abilities, Dr. Shaikh opined that Plaintiff was “mildly limited,”10 and for another six categories,
Dr. Shaikh opined that Plaintiff was “moderately limited.” (R. 537–39.) Dr. Shaikh also opined
that Plaintiff’s impairments would last at least twelve months and that Plaintiff was only capable
of tolerating low-stress work environments. (R. 540.) Dr. Shaikh noted that Plaintiff’s
impairments likely would produce “good days and bad days” and likely would cause Plaintiff to
miss work more than three times per month. (R. 540–41.) Dr. Shaikh stated that his opinions,
findings and conclusions applied currently and dated back to when he first examined Plaintiff in
August of 2012. (R. 541.)

10

The questionnaire defined “mildly limited” as a limitation that “does not significantly
affect the individual’s ability to perform the activity,” and defined “moderately limited” as a
limitation that “significantly affects but does not totally preclude the individual’s ability to
perform the activity.” (R. 536.)

15

ii.

Dr. Toula Georgiou – Consultative Examination

After Plaintiff applied for social security benefits, Toula Georgiou, Psy. D., examined
Plaintiff to assess his psychological limitations as they existed in October of 2012. (R. 349–52.)
Plaintiff reported difficulty sleeping, decreased appetite, and depressive symptoms, which
symptoms included dysphoric mood, crying spells, loss of interest, loss of pleasure, fatigue,
irritability, social withdrawal and thoughts of suicide with no plans or intentions to commit
suicide or otherwise hurt himself. (R. 349, 351.) Plaintiff was receiving psychiatric treatment
for his symptoms. (R. 349) Plaintiff also reported that he was drinking a half-pint of alcohol
four to five times per week, did not get along well with his family, had a dog and spent his time
volunteering at a community garden, watching television or attending treatment programs.
(R. 349, 351.) Dr. Georgiou observed that Plaintiff was cooperative, with an adequate manner of
relating, walked with a cane, had coherent and goal directed thought processes and had a
dysphoric affect, dysthymic mood and clear sensorium. (R. 350.) Dr. Georgiou also observed
that Plaintiff’s attention and concentration was intact, recent and remote memory skills were
mildly impaired, cognitive function was average and insight and judgment were fair. (R. 350–
51.)
As to Plaintiff’s activities of daily living, Dr. Georgiou noted that Plaintiff was able to
dress, bathe, groom, manage his own money, use public transportation and prepare simple meals,
but was unable to clean, do laundry or shop. (R. 351.) Dr. Georgiou opined that Plaintiff was
“able to follow and understand simple directions and instructions, perform simple tasks
independently, and attend and concentrate on tasks. He may have difficulties having to relate
with others, deal with stress and maintain a regular schedule at this time.” (R. 351.)
Dr. Georgiou concluded that her findings were consistent with Plaintiff’s history of psychiatric
difficulties, which difficulties “may significantly interfere with [his] ability to function on a daily
16

basis.” (R. 351.) Dr. Georgiou diagnosed Plaintiff with alcohol abuse and depressive disorder,
not otherwise specified. (R. 351.) Dr. Georgiou’s prognosis was fair, and she recommended that
Plaintiff continue his then-current treatment. (R. 352.)
d.

The ALJ’s decision

Prior to issuing his decision, the ALJ contacted Plaintiff’s counsel and asked if he would
amend the alleged onset of disability date from April 15, 2011 to May 8, 2013, which
amendment would result in Plaintiff receiving a fully favorable decision. (R. 289.) Plaintiff,
through counsel, declined. (R. 289–91.)
The ALJ issued his decision on May 27, 2013, finding that Plaintiff was not disabled
during the Contested Period, but was disabled as of August 8, 2013.11 (R. 20–38.) The ALJ
applied the five-step analysis for determining whether an individual is disabled and may receive
social security benefits. (R. 20–38.) At step one, the ALJ found that Plaintiff was not working
and had not engaged in substantial gainful employment since the alleged onset of disability date.
(R. 24.) At step two, the ALJ found that Plaintiff had a non-severe impairment of prostate cancer
in remission and the following severe impairments: lumbar disc bulge and herniation; cervical
spine degenerative disc disease; depressive disorder, not otherwise specified; and alcohol
dependence in remission. (R. 24.) At step three, the ALJ found that the impairments, singly or
combined, failed to meet or equal the severity of an impairment listed in Appendix 1 of the
Social Security Regulations. (R. 24.) At step four, the ALJ found that Plaintiff could not
perform his previous employment. (R. 35.) He also found that, as to Plaintiff’s RFC, he could:

11

Because neither party challenges the ALJ’s decision that Plaintiff was disabled and
entitled to social security benefits as of August 8, 2013, the Court focuses on the ALJ’s decision
as it pertains to the Contested Period. (See Comm’r Mem.; Pl. Mem.)

17

perform light work . . . except that [he] was limited to routine work
with contact with supervisor[s], coworkers and the public[,] limited
to no more than [fifty] percent of the workday, no requirement to
make job-related discretionary decisions or deal with potential
conflict situations, and no requirement to be subject to production
rate quotas.
(R. 25, 35.) In making the step-four RFC determination for the Contested Period, the ALJ
recounted much of the evidence and then assigned the following weights to the medical opinions:
“great weight” to non-examining physician Dr. Grand; “significant weight” to consultative
examiners Dr. Graber and Dr. Georgiou; “significant weight” to Dr. Shaikh; and “no controlling
weight” to Dr. Kim.12 (R. 25–32.) The ALJ also gave “little probative” weight to Plaintiff’s
testimony. (R. 32.) At step five, the ALJ found that, based on Plaintiff’s RFC, Plaintiff could
perform a significant number of jobs that existed in the national economy as testified to by
vocational expert Mr. Pasternak. (R. 35–37.)
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

12

Because Plaintiff began seeing Dr. Perry on August 8, 2013, the ALJ did not consider
Dr. Perry’s opinions in making his findings as to whether Plaintiff was disabled during the
Contested Period. (R. 32–35.)

18

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
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

Supplemental security income is available to individuals who are “disabled” within the
meaning of the SSA.13 Federal disability insurance benefits are also available to individuals who
are “disabled” within the meaning of the SSA. To be considered disabled under the SSA, a
plaintiff must establish his or her inability “to engage in any substantial gainful activity by
13

Supplemental security income is available to individuals who are sixty-five years of
age or older, blind or disabled and meet certain income requirements. 42 U.S.C. §§ 1382(a),
1382c(a)(1)(A); 20 C.F.R. § 416.202. The only issue before the Court is whether Plaintiff is
disabled.
19

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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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), 1382c(a)(3)(B). The Commissioner has
promulgated a five-step analysis for evaluating disability claims. 20 C.F.R. §§ 404.1520,
416.920. 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
[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”); McIntyre,
758 F.3d at 150 (describing “the five-step, sequential evaluation process used to determine
whether a claimant is disabled” (citing 20 C.F.R. § 416.920(a)(4)(i)–(v))).

20

c.

Analysis

Plaintiff argues that the ALJ erred because: (1) the ALJ failed to give controlling weight
to Plaintiff’s treating physicians, and (2) the ALJ omitted the opinions of one of Plaintiff’s
treating physicians, Dr. Shaikh, from Plaintiff’s RFC assessment, which led to the ALJ’s
erroneous determination that Plaintiff could perform a job that existed in significant numbers in
the national economy. (Pl. Mem. 15–25.) The Commissioner argues that the ALJ’s decision not
to give controlling weight to Plaintiff’s treating physicians was supported by substantial evidence
because: (1) there was conflicting evidence in the record regarding Plaintiff’s physical
limitations, which conflict the ALJ was entitled to resolve, and (2) the medical opinions rejected
by the ALJ lacked support in the record. (Comm’r Mem. 25–33.) For the reasons explained
below, the Court finds that the ALJ violated the treating physician rule by failing to give
controlling weight to Dr. Fuzaylov, one of Plaintiff’s treating physicians, and by omitting Dr.
Shaikh’s opinion from Plaintiff’s RFC assessment.
“[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.”14 20 C.F.R. § 404.1527(c)(2); see

14

The regulations define “treating source” as the claimant’s “own physician,
psychologist, or other acceptable medical source who provides [a claimant] . . . with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the

21

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
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))).
If an ALJ declines to give a treating physician’s opinion controlling weight, the ALJ must
consider a number of factors to determine how much weight to assign to the treating physician’s
opinion, specifically: “(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

claimant].” Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (quoting 20 C.F.R.
§ 404.1502).

22

at 32–33 (“We do not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physicians[’] opinion . . . .”).
On the other hand, a “nontreating source” is defined as a “physician, psychologist, or
other acceptable medical source who has examined [the plaintiff] but does not have, or did not
have, an ongoing treatment relationship with [the plaintiff].” 20 C.F.R. § 416.902. In general,
“ALJs should not rely heavily on the findings of consultative physicians after a single
examination.” Selian, 708 F.3d at 419. This is because “consultative exams are often brief, are
generally performed without the benefit or review of claimant’s medical history and, at best,
only give a glimpse of the claimant on a single day.” Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir.
1990); Hernandez v. Astrue, 814 F. Supp. 2d 168, 182–83 (E.D.N.Y. 2011) (“[T]he opinion of a
consultative physician, ‘who only examined a plaintiff once, should not be accorded the same
weight as the opinion of [a] plaintiff’s treating psychotherapist.’” (quoting Cruz, 912 F.2d
at 13)).
i.

The ALJ erred by failing to consider and assign any weight to one of
Plaintiff’s treating physicians.

Remand is appropriate here because the ALJ violated the treating physician rule by
failing to consider and assign any weight to the opinions of Dr. Fuzaylov, one of Plaintiff’s
treating physicians.
According to the evidence in the record, Dr. Fuzaylov treated Plaintiff for his back pain
between July and November of 2012. (R. 263–64, 556–59, 561.) Dr. Fuzaylov examined
Plaintiff on five separate occasions and made observations regarding Plaintiff’s physical
limitations, issued and monitored Plaintiff’s prescription medications, ordered and analyzed an
MRI of Plaintiff’s back and pelvis and recommended that Plaintiff see a physical therapist.
(R. 263–64, 556–59, 561.) Accordingly, Dr. Fuzaylov was a treating physician. See Brickhouse

23

v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (noting that a “treating source” is a claimant’s
“own physician, psychologist, or other acceptable medical source who provides [a
claimant] . . . with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with [the claimant]” (quoting 20 C.F.R. § 404.1502)). Dr. Fuzaylov’s
opinions are relevant as they were rendered during the Contested Period. (See R. 25, 263–64,
556–59, 561.) Nevertheless, in both recounting the evidence and assigning weight to the various
physicians who rendered medical opinions, the ALJ only mentioned Dr. Fuzaylov once and did
not assign any weight to his opinions. (R. 25–32.) The ALJ’s failure to consider and assign any
weight to Dr. Fuzaylov’s opinions is a basis for remanding this case to the ALJ. See Lesterhuis,
805 F.3d at 89 (remanding a case to an ALJ because “[n]either the ALJ nor the Appeals Council
analyzed the substance of [an] opinion” by one of the plaintiff’s treating physicians); Burgess,
537 F.3d at 132 (remanding a case to an ALJ because “the reports of [one of the plaintiff’s
treating physicians] . . . w[ere] not expressly mentioned by the ALJ”); Smith v. Astrue, No. 10CV-6018, 2013 WL 1681146, at *6 (E.D.N.Y. Apr. 17, 2013) (remanding to an ALJ because
“the ALJ refers to [one treating physician] only once in his ten-page decision . . . [and] fails to
mention [a second treating physician] at all”); Colon v. Astrue, No. 10-CV-3779, 2011 WL
3511060, at *12 (E.D.N.Y. Aug. 10, 2011) (finding that because “the ALJ failed to give . . . any
consideration to the opinion of” the plaintiff’s treating physician, “the ALJ committed legal error
in his decision and . . . remand is appropriate”).
ii.

The ALJ erred by omitting Dr. Shaikh’s opinion from Plaintiff’s RFC
assessment

The ALJ also erred in his determination of Plaintiff’s RFC because, while he assigned
significant weight to Dr. Shaikh’s opinions, Plaintiff’s RFC assessment did not include
Dr. Shaikh’s opinion that Plaintiff likely would miss three or more days of work per month.

24

In recounting the evidence, the ALJ noted that Dr. Shaikh was a treating physician who
opined that Plaintiff likely would “be absent from work as a result of impairments or treatment
more than three times per month,” (R. 29, 32). The ALJ accorded “significant weight” to Dr.
Shaikh’s opinions, (R. 32), but did not mention Dr. Shaikh’s opinion regarding Plaintiff’s likely
monthly absences in assessing Plaintiff’s RFC, (see R. 25). Nor did the ALJ mention this
information at the hearing when he posed the RFC hypothetical to the vocational expert. (See
R. 86–92). Therefore, because the ALJ accorded significant weight to Dr. Shaikh’s opinion but
failed to include Dr. Shaik’s opinion regarding Plaintiff’s likely absences from work in the RFC
determination, the RFC assessment was flawed and requires remand. See Rugless v. Comm’r of
Soc. Sec., 548 F. App’x 698, 700 (2d Cir. 2013) (holding that remand was required because “we
need some explanation of why there was no discussion in the ALJ’s decision of [the] opinion that
[plaintiff] would have to miss more than four days per month”); see also Foxman v. Barnhart,
157 F. App’x 344, 347 (2d Cir. 2005) (holding that remand to an ALJ was proper because the
ALJ’s findings could “not be reconciled” with his findings regarding the medical opinion
evidence).
In addition, courts in this Circuit have held that an opinion stating that a social security
claimant likely may miss work multiple times per month is probative as to whether the claimant
is disabled under the Social Security Regulations. See Greek v. Colvin, 802 F.3d 370, 376 (2d.
Cir. 2015) (holding that because the plaintiff “could perform no jobs available in large numbers
in the national economy if he had to miss four or more days of work per month, the ALJ’s failure
to provide adequate reasons for rejecting [that] opinion was not harmless”); Lesterhuis, 805 F.3d
at 88 (remanding a case to an ALJ because “nothing in the record contradicts [the treating
physician’s] conclusion about the number of days each month that [the plaintiff] is likely to be

25

absent from work”); Rugless, 548 F. App’x at 700 (remanding for the ALJ to consider an opinion
by one of the plaintiff’s treating physicians, which opinion stated that the plaintiff likely would
miss more than four days per month).
The Commissioner argues that the ALJ did not consider Dr. Shaikh’s opinion regarding
Plaintiff’s likely absences because it was not supported by any evidence in the record. (Comm’r
Mem. 29.) The ALJ, however, expressed no such reasoning in his decision, and the Court will
not address the Commissioner’s post hoc arguments defending the ALJ’s error. See Lesterhuis,
805 F.3d at 89 (holding that courts “may not affirm an administrative action on grounds different
from those considered by the agency” (internal quotation marks omitted) (citing Burgess, 537
F.3d at 131)); McAllister v. Colvin, --- F. Supp. 3d ---, ---, 2016 WL 4717988, at *17 (E.D.N.Y.
Sept. 9, 2016) (“Such post hoc rationalizations are insufficient, as a matter of law, to bolster the
ALJ’s decision.”); Demera v. Astrue, No. 12-CV-432, 2013 WL 391006, at *3 n.3 (E.D.N.Y.
Jan. 24, 2013) (“The ALJ did not provide these explanations, however, and post
hoc rationalizations for the ALJ’s decision are not entitled to any weight.” (citing Snell, 177 F.3d
at 134)). Accordingly, the Court remands for the ALJ to consider Plaintiff’s likely absences in
making the RFC determination.15

15

Because the Court finds that remand is proper on the bases that the ALJ erred in
failing to consider Dr. Fuzaylov’s opinions and in failing to consider Dr. Shaikh’s opinion
regarding Plaintiff’s likely absences in assessing Plaintiff’s RFC, the Court does not address
Plaintiff’s argument that the ALJ erred in determining that Plaintiff could perform a job that
existed in significant numbers in the national economy, (Pl. Mem. 22–25). See Foxman v.
Barnhart, 157 F. App’x 344, 347–48 (2d Cir. 2005) (declining to address arguments presented
by the parties that were different from the bases underlying the Court’s decision to remand).

26

III. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s cross-motion for judgment on the
pleadings and denies the Commissioner’s motion for judgment on the pleadings. The Court
vacates the Commissioner’s decision and remands this action 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 27, 2017
Brooklyn, New York

27