Meyers v. Commissioner of Social Security

Filing 26

ORDER: For the reasons set forth in the attached Memorandum and Order, the Court grants Plaintiff's 22 motion for judgment on the pleadings and denies the Commissioner's 19 cross-motion. The Commissioner's decision is remanded for further consideration consistent with this Order. The Clerk of Court is respectfully requested to enter judgment and close this case accordingly. Ordered by Judge Pamela K. Chen on 3/23/2018. (Cuevas Ingram, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RUTH MYERS,
Plaintiff,

MEMORANDUM & ORDER
16-CV-04567 (PKC)

-againstNANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Ruth Myers (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial
review of the Social Security Administration’s (“SSA”) denial of her claim for Disability Insurance
Benefits (“DIB”). The parties have cross-moved for judgment on the pleadings. (Dkts. 19, 22.)
Plaintiff seeks reversal of the Commissioner’s decision and an immediate award of benefits, or
alternatively, remand for further administrative proceedings. The Commissioner seeks affirmance of
the denial of Plaintiff’s claims. For the reasons set forth below, the Court grants Plaintiff’s motion for
judgment on the pleadings and denies the Commissioner’s motion. The case is remanded for further
proceedings consistent with this Order.
BACKGROUND
I.

PROCEDURAL HISTORY
On December 12, 2012, Plaintiff filed an application for DIB, claiming that she has been

disabled since April 12, 2012, due to injuries she sustained when a step broke and she fell down a

1

Nancy A. Berryhill became Acting Commissioner of Social Security on January 23,
2017. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as
Defendant in this suit.

flight of stairs at work. These injuries caused Plaintiff to suffer severe back and leg pain,
numbness, dizziness, and foot/leg weakness. (Tr. 10, 31, 99-100, 104, 152-59, 216.)2 Plaintiff’s
DIB claim was initially denied on March 8, 2013. (Tr. 10, 60-67.) After her claim was denied,
Plaintiff appeared for a hearing before Administrative Law Judge (“ALJ”) April M. Wexler on
November 18, 2014. (Tr. 26-48.) By decision dated December 2, 2014, ALJ Wexler found that
Plaintiff was not disabled within the meaning of the Social Security Act at any time between April
12, 2012 and December 2, 2014. (Tr. 7-25.)3
After the SSA denied Plaintiff’s application for review, Plaintiff filed an administrative
appeal with the Appeals Council. (Tr. 6.) The Appeals Council denied review on July 25, 2016.
Based upon this denial, Plaintiff filed this action on August 16, 2016, seeking reversal or remand
of ALJ Wexler’s December 2, 2014 decision.
II.

STANDARD OF REVIEW
Unsuccessful claimants for disability benefits under the Social Security Act (the “Act”)

may bring an action in federal district court seeking judicial review of the Commissioner’s denial
of their benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the
Court’s role is “limited to determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012) (internal quotation omitted). “Substantial evidence is more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate

2

All references to “Tr.” refer to the consecutively paginated Administrative Transcript.

(Dkt. 7.)
3

Generally, the ALJ considers whether the claimant was disabled through the date she last
met the insured status requirements of Title II of the Social Security Act. In this case, however,
Plaintiff met the insured status requirements until December 2, 2014. (Tr. 12.)
2

to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971) (alterations and internal quotation marks omitted)). In
determining whether the Commissioner’s findings were based upon substantial evidence, “the
reviewing court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.” Id. (quotation omitted). However, “it
is up to the agency, and not this court, to weigh the conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). If there is substantial evidence in the
record to support the Commissioner’s findings as to any fact, those findings are conclusive and
must be upheld. 42 U.S.C. § 405(g); see also Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir.
2013).
III.

ELIGIBILITY STANDARD FOR SOCIAL SECURITY DISABILITY BENEFITS
To receive DIB, claimants must be disabled within the meaning of the Act. Claimants

establish disability status by demonstrating an inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). The claimant bears the
initial burden of proof on disability status and must demonstrate disability status by presenting
medical signs and findings, established by “medically acceptable clinical or laboratory diagnostic
techniques,”

as

well

as

any

other

evidence

the

Commissioner

may

require.

42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(D). However, the ALJ has an affirmative obligation to
develop the administrative record.

Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09

(2d Cir. 2009). This means that the ALJ must seek additional evidence or clarification when the
claimant’s medical reports contain conflicts or ambiguities, if the reports do not contain all

3

necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic
techniques. Demera v. Astrue, No. 12 Civ. 432, 2013 WL 391006, at *3 (E.D.N.Y. Jan. 24, 2013);
Mantovani v. Astrue, No. 09 Civ. 3957, 2011 WL 1304148, at *3 (E.D.N.Y. March 31, 2011).
In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant
bears the burden of proof in the first four steps in the inquiry; the Commissioner bears the burden
in the final step. Talavera, 697 F.3d at 151. First, the ALJ determines whether the claimant is
currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer
is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful
activity,” the ALJ proceeds to the second step to determine whether the claimant suffers from a
“severe impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe
when it “significantly limits [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). If the impairment is not severe, then the claimant is not
disabled within the meaning of the Act. However, if the impairment is severe, the ALJ proceeds
to the third step, which considers whether the impairment meets or equals one of the impairments
listed in the Act’s regulations (the “Listings”). 20 C.F.R. § 404.1520(a)(4)(iii); see also 20
C.F.R. Pt. 404, Subpt. P, App. 1.
If the ALJ determines at step three that the claimant has one of the listed impairments, then
the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant
does not have a listed impairment, the ALJ must determine the claimant’s “residual functional
capacity” (“RFC”) before continuing with steps four and five.

The claimant’s RFC is an

assessment that considers the claimant’s “impairment(s), and any related symptoms . . . [which]
may cause physical and mental limitations that affect what [the claimant] can do in the work
setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four

4

to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If
the answer is yes, the claimant is not disabled. Otherwise, the ALJ will proceed to step five, at
which the Commissioner then must determine whether the claimant, given the claimant’s RFC,
age, education, and work experience, has the capacity to perform other substantial, gainful work
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not
disabled; otherwise, the claimant is disabled and is entitled to benefits. Id.
IV.

RELEVANT FACTS AND MEDICAL RECORDS
Plaintiff’s claim of disability stems from injuries she sustained on April 12, 2012, when

she fell down a flight of stairs at work. Plaintiff alleges that the injuries caused her to suffer back
and leg pain, numbness, dizziness, and foot/leg weakness. (Tr. 10, 31, 99-100, 104, 152-59, 216.)
A. May 18, 2012 Magnetic Resonance Imaging (“MRI”)
A magnetic resonance imaging (“MRI”) performed on May 18, 2012 of Plaintiff’s lumbar
spine revealed a diffuse disc bulging4 with superimposed left subarticular protruded disc
herniation5 at L4-5 and a diffuse disc bulge at L5-S1. (Tr. 212-13, repeated at 261-62, 422-23.)

“A bulging disc, sometimes referred to as a slipped disc, is a degenerative spine
condition”. Bulging Disc Diagnosis, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/articles/bulging_disc/receiving_diagnosis/587/ (last visited
Mar. 23, 2018).
4

A disc herniation, or herniated disc, refers to a condition where “a fissure develops in a
disc’s annulus fibrosus,” (fibrous outer shell) and “some of the nucleus pulposus can pass
through its compromised boundary. . . . Pain and other uncomfortable symptoms can develop if
displaced inner disc material — which contains inflammatory proteins — irritates or pressures
the disc wall, the spinal cord or a nearby nerve root.” Herniated Disc, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/herniated_disc/ (last visited Mar. 23, 2018).
5

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B. Medical Evidence from Treating Physician Dr. Jean Claude Compas
In July 2012, Plaintiff’s treating doctor, Dr. Jean Claude Compas, prescribed a walking
cane for Plaintiff, based on the results of the MRI. (Tr. 211.) Dr. Compas, who treated Plaintiff
on a monthly basis from August 2012 to March 2013, repeatedly stated that Plaintiff’s condition
was guarded, that she was not able to resume her work activities (Tr. 210, 217 219-21), and that
she could not sit for more than six hours, nor stand or walk for more than two hours, as required
for sedentary work, noting evidence of a limited range of motion, spasm and tenderness in the
paralumbar area, and limping or antalgic gait6 (on July 12, 2012, Tr. 361-64; December 14, 2012,
Tr. 345-48; repeated at Tr. 381-84; April 10, 2013, Tr. 307-10; September 19, 2013, Tr. 320-27;
December 19, 2013, Tr. 407-10; February 21, 2014, Tr. 493-96; Sept. 9, 2014, Tr. 537-40.) Dr.
Compas also stated in his Doctor’s Progress Reports for Plaintiff’s Worker’s Compensation Claim
that Plaintiff complained of constant “back pain, radiating to the left leg/buttock with decreased
range of motion, muscle spasm, and a positive straight leg raising.”7 (Tr. 191-92.) As required by
the Worker’s Compensation Board, Dr. Compas filed additional reports for each treatment
encounter with Plaintiff. (Tr. 193-209.) On July 13, 2012, Dr. Compas also prescribed a walking
cane, physical therapy, and a trial of Ultracet and Voltaren gel for Plaintiff. (Tr. 21, 218, 244.)

An antalgic gait is “a characteristic gait resulting from pain on weight-bearing in which
the stance phase of gait is shortened on the affected side.” See antalgic gait, STEDMANS MEDICAL
DICTIONARY 359070.
6

A “positive straight leg raising” refers to a positive result on the “straight-leg raising
test”, which means “passive dorsiflexion of the foot in the supine patient with the knee and hip
extended; back pain with this indicates nerve root compression or impingement.” See straightleg raising test, STEDMANS MEDICAL DICTIONARY 908450.
7

6

C. 2012 MRI Review by Dr. Michelle Rubin, Board-Certified Neurologist
On October 6, 2012, Dr. Michelle Rubin, a board-certified neurologist, reviewed the May
18, 2012 MRI of the lumbar spine and diagnosed a left postlateral disc herniation at L4-5
superimposed on annular bulging resulting in a mass effect on the ventral thecal sac, especially the
left, including the region of the emerging left L5 nerve root, 8 left foraminal encroachment,9 an
annular disc bulge at L5-S1, and lumbar scoliosis10 and straightening, which could be related to
muscle spasm/pain. (Tr. 343-44, repeats at Tr. 349-50.)
D. Medical Evidence from Pain Management Specialist Dr. Conrad Cean
On October 4, November 29 and December 13, 2012, Dr. Conrad Cean administered
several nerve root block injections on the right and the left of the spine, between L2-L3, L3-L4

Thecal sac simply refers to “a membrane which surrounds the spinal cord and spinal
nerves. It is filled with cerebral spinal fluid and acts as a protective barrier for sensitive nerve
tissue.” Herniated Disc Impinging on the Thecal Sac, THE HERNIATED DISC AUTHORITY,
https://www.herniated-disc-pain.org/herniated-disc-impinging-on-the-thecal-sac.html (last
visited Mar. 23, 2018).
8

Foraminal encroachment refers to when “degeneration in the spinal column has caused
an obstruction of the foramina, which are the open spaces on either side of the vertebrae through
which spinal nerves pass on their way to other parts of the body. As these neural passageways
become blocked, it can force pressure on the nerves, which causes pain at the site of the
impinged nerve as well as symptoms that travel to the extremities.” Foraminal Encroachment,
LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/foraminal_stenosis/encroachment/ (last
visited Mar. 23, 2018).
9

Lumbar scoliosis refers to “an abnormal curvature of the spine within the five lumbar
(lower back) vertebrae.” Lumbar Scoliosis, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/scoliosis/types/lumbar_scoliosis/ (last
visited Mar. 23, 2018).
10

7

and L4-L5, and completed epiduriography11 reports, finding no spinal stenosis12, but diagnosing
Plaintiff with lumbar radiculitis.13 (Tr. 275-76, 278-79, 281-82, 288-90.) On January 3, 2013,
Plaintiff returned to Dr. Cean, reporting pain with activities of daily living, walking, standing, and
sitting for prolonged periods of time. (Tr. 365, 369.) She had limited relief with physical therapy.
Dr. Cean added Tylenol #4 twice a day to her medication regimen; she received several lumbar
facet joint injections, and reported zero reduction in her pain and continued to complain of left
buttock pain. (Id.) Plaintiff was also anxious about her levels of pain. Dr. Cean advised that if
she did not respond to the nerve root block injection, then he would propose spinal cord
decompression. (Id.)
E. Medical Evidence from SSA Consultative Physician, Dr. John Fkiaras
On February 25, 2013, Dr. John Fkiaras examined Plaintiff at the request of the SSA. (Tr.
292-94.) Plaintiff reported to Dr. Fkiaras that she had experienced lower back pain since an April
2012 work injury, that she had trouble walking, climbing stairs, standing, and lifting, and that
sitting for a long period of time also exacerbated her low back pain. (Id.) Plaintiff reported using

Epiduriography refers to a diagnostic test performed “to assess the structure of the
epidural space” (the space around the dural, or hard matter) in the spine. “This procedure is done
before epidural steroids are administered to ensure accurate delivery of the steroids to the
source” of pain. Diagnostic Epiduriography, NY SPINE MEDICINE,
http://www.nyspinemedicine.com/procedures/epidurography.php (last visited Mar. 23, 2018).
11

Spinal stenosis refers to “the narrowing of the spinal canal that houses the spinal cord
and nerve roots of the spine.” Spinal Stenosis, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/spinal_stenosis/ (last visited Mar. 23, 2018).
12

Lumbar radiculitis or radiculopathy refers to “pain, tingling, numbness and/or
weakness that travels, or radiates, along a compressed spinal cord or nerve root.” What is lumbar
radiculopathy, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/radiculopathy/lumbar/ (last visited Mar. 23,
2018).
13

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oral medications (Tramadol, Cyclobenzaprine, and Tylenol #4), but that they did not provide relief
from pain, and Dr. Fkiaras noted that Plaintiff was to be scheduled for back surgery. (Id.) Dr.
Fkiaras observed, upon examination, that Plaintiff was wearing a back brace and that her gait was
antalgic with or without use of a cane, which Dr. Fkiaras observed was medically necessary for
weight-bearing and balance. (Id.)
Dr. Fkiaras also observed that Plaintiff was able to rise from a chair without difficulty, but
that she was unable to walk on her heels and toes, and that flexion of the lumbar spine was limited
to 50 degrees. (Tr. 294.) Dr. Fkiaras found supine straight leg raising positive on the left at 50
degrees and seated straight leg raising was positive on the left at 60 degrees. He also found pain
to the light touch on the bilateral lumbar region, and muscle strength 4/5 in the bilateral lower
extremities. (Id.) Dr. Fkiaras diagnosed lower back pain, and opined that Plaintiff had a “marked”
limitation for lifting, carrying, pushing, pulling, squatting, kneeling and crouching due to lower
back pain. (Id.) Dr. Fkiaras further opined that Plaintiff had a “moderate” limitation for walking
and a “moderate-to-marked” limitation for standing, bending, and climbing stairs. (Id.) Plaintiff
was further directed by Dr. Fkiaras to avoid activities that would require sitting for extended
periods of time. (Id.)
F. Plaintiff’s Evaluation by Neurosurgeon Dr. Ramesh Babu
In April and May 2013, Dr. Compas referred Plaintiff to a neurosurgeon, Dr. Ramesh Babu,
to evaluate Plaintiff’s back disorder. (Tr. 263-64, 301-04, 312-13, repeats at Tr. 387-88, 413, 419,
424, 481-82.) A MRI performed on May 14, 2013 of the lumbar spine revealed a stable appearance

9

of the left paracentral14 and foraminal disc protrusion15 with minimal compression on the left
subarticular recess with no appreciable mass effect on the nerve roots. (Tr. 322-23, repeats at Tr.
425-26.) The MRI also revealed a mild bilateral facet joint hypertrophy16 at L4-5 and L5-S1,
without spinal canal or foraminal stenosis,17 and a shallow circumferential disc bulge at L5-S1.
Id.

A paracentral disc protrusion occurs when a spinal disc “bulge pushes near the center
of the spinal canal, where it can pinch the spinal cord and nerve roots.” Paracentral disc
protrusion, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/disc_protrusion/paracentral/ (last visited
Mar. 23, 2018).
14

A foraminal disc protrusion is “relatively easy to overlook as it does not impinge upon
the spinal canal. Secondly as it does not narrow the subarticular recess[,] it compresses the
exiting nerve root only… clinically mimicking a posterolateral disc at the level above.” Dr. Ian
Bickle and A. Prof Frank Gaillard, et al., Foraminal disc protrusion, RADIOPAEDIA,
https://radiopaedia.org/articles/foraminal-disc-protrusion (last visited Mar. 23, 2018).
15

Facet joint hypertrophy refers to “a condition in which the facet joints of the spine
become enlarged.” Facet joint hypertrophy, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/facet_disease/articles/facet_joint_hypertroph
y/ (last visited Mar. 23, 2018).
16

17

Foraminal stenosis refers a narrowing of the open passageways between the spinal
vertebrae, where they “are encroached upon by displaced bone or soft tissue, often due to
degenerative changes in the spinal anatomy.” Foraminal stenosis overview, LASER SPINE
INSTITUTE, https://www.laserspineinstitute.com/back_problems/foraminal_stenosis/ (last visited
Mar. 23, 2018).
10

G. Lumbar Spinal Surgery Performed by Dr. Babu
On May 22, 2013, Dr. Ramesh Babu submitted documentation to support
authorization for a laminectomy,18 facetectomy,19 discectomy,20 and spinal fusion.21 (Tr. 297-300.)
On June 14, 2013, Dr. Compas summarized Plaintiff’s complaints that she experienced “daily back
pain that radiates” to her left leg with decreased range of motion and antalgic gait. (Tr. 442, repeats
at Tr. 483.) On July 1, 2013, Dr. Babu performed back surgery at New York University Hospital
won Plaintiff, with a left L4-5 and L5-S1 hemilaminectomy,22 and an L4 to S1 posterolateral

A laminectomy refers to “surgery that creates space by removing the lamina,” which is
“the back part of the vertebra that covers the spinal canal.” Laminectomy, MAYO CLINIC,
https://www.mayoclinic.org/tests-procedures/laminectomy/about/pac-20394533 (last visited
Mar. 23, 2018). Laminectomy is “generally used only when more-conservative treatments —
such as medication, physical therapy or injections — have failed to relieve symptoms.
Laminectomy may also be recommended if symptoms are severe or worsening dramatically.”
(Id.)
18

A facetectomy refers to “an open back surgery designed to remove a portion of spine
growth that results from facet disease and has impacted a nerve in the spinal column.” What is a
Facetectomy?, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/articles/facetectomy_articles/ectomy/291/ (last visited Mar.
23, 2018).
19

A discectomy refers to surgery that “will remove a portion of the herniated or bulging
disc that is pressing on a nerve in the spinal cord.” What is a discectomy?, LASER SPINE
INSTITUTE, https://www.laserspineinstitute.com/spinal_orthopedic_procedures/discectomy/ (last
visited Mar. 23, 2018).
20

Spinal fusion refers to “surgery to join two or more vertebrae into one single structure.
The goal is to stop movement between the two bones and prevent back pain.” What Is Spinal
Fusion?, WEBMD, https://www.webmd.com/back-pain/spinal-fusion-facts#1 (last visited Mar. 23,
2018).
21

22

A hemilaminectomy refers to a type of spine surgery to remove a small portion of the
lamina, a part of a vertebra in the spine, “while still maintaining the stability and integrity of the
spine.” What is a hemilaminectomy?, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/back_surgery/types/hemilaminectomy/ (last
visited Mar. 23, 2018).

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fusion.23 (Tr. 331-36, repeats at Tr. 341-42.) On July 15 and August 15, 2013, Plaintiff reported
severe back pain following the July 1, 2013 back surgery. (Tr. 314-17, repeats at Tr. 443, 445,
484-85.) In July and August 2013, Plaintiff received home health aide services. (Tr. 318, 339-40.)
Following Plaintiff’s July 2013 back surgery, Dr. Babu prescribed a walker.24 (Tr. 38, 329-30.)
H. Post-Surgical Medical Evidence from Dr. Compas, and Dr. Matthew
Lefkowitz, Pain Management Specialist
On September 19, 2013, Dr. Compas noted that Plaintiff reported chronic pain in her lower
back which radiated to her legs. (Tr. 319, repeats at Tr. 444, 446, 486, 488.) Dr. Compas again
completed a medical report form in which he stated that Plaintiff was not able to perform any type
of work that required her to sit for six hours, or to stand or walk for two hours, as required for
sedentary work, even with periodic alternation between sitting and standing to alleviate pain. (Tr.
324-27.) On October 19 and 22, 2013, Dr. Compas completed a request for a three-pronged walker
and another four weeks of home-attendant services for Plaintiff. (Tr. 329-30, 338, 447, 487.)
On November 18, 2013, Plaintiff reported to Dr. Compas that she had been in another
motor vehicle accident on October 26, 2013, and reported pain radiating down her left leg at a

A posterolateral fusion refers to “a lumbar (lower back) spine surgery that is used to
treat certain spine conditions, such as degenerative disc disease, spondylolisthesis and spinal
stenosis”, where “a bone graft is fused around a damaged disc, permanently attaching the two
vertebrae surrounding the disc.” Posterolateral fusion, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/back_surgery/types/posterolateral/ (last
visited Mar. 23, 2018).
23

A “walker” is defined as a “light-weight 3-sided support structure” used by patients
“with ambulation defects to help self-mobilizations”, MCGRAW-HILL CONCISE DICTIONARY OF
MODERN MEDICINE (2002) (retrieved March 23, 2018, from: https://medicaldictionary.thefreedictionary.com/walker). A “walker” is also defined as a “light portable
framework used for support and assistance in walking by a person with a gait impairment for
which a cane or crutches are inadequate.” MEDICAL DICTIONARY FOR THE HEALTH PROFESSIONS
AND NURSING, (FARLEX 2012) (retrieved March 23, 2018, from: https://medicaldictionary.thefreedictionary.com/walker).
24

12

score of 10 out 10 (Tr. 449, repeats at Tr. 490.) That same day, Dr. Compas issued a letter in
which he opined that Plaintiff had been totally disabled since April 12, 2012 due to lumbar
radiculitis and a herniated disc, noting that her prognosis was “guarded” and she was not able to
resume her activities (Tr. 448, repeats at Tr. 489.)
On December 9, 2013, Dr. Compas completed another medical report in which he opined
that Plaintiff could not carry more than ten pounds, and that she could not sit for six hours, nor
stand or walk for two hours, as required for sedentary work, noting evidence of spasm, tenderness
in the paralumbar area, and decreased range of motion post lumbar spine laminectomy. (Tr. 40710.)
On December 19, 2013, Plaintiff complained to Dr. Compas that the Oxycodone prescribed
to her worked for the pain, but “made her itchy”. (Tr. 450-51, repeats at Tr. 491-92.) Plaintiff
reported significantly more pain in her left leg, with decreased strength and paresthesia.25. (Id.)
Plaintiff also used a back brace and had difficulty sitting straight, and she reported difficulty in
performing daily activities. (Id.) Dr. Compas recommended physical therapy, which Plaintiff
received twice a week from December 2013 through February 2014. (Tr. 469-72.) Dr. Compas
noted Plaintiff reported interim, moderate improvement with physical therapy and medications on
January 17, 2014 (Tr. 452-53), and but, ultimately, no improvement with physical therapy and
medications on January 27, 2014 (Tr. 454-57.)

“Paresthesia refers to a burning or prickling sensation that is usually felt in the hands,
arms, legs, or feet, but can also occur in other parts of the body”, a feeling often described as
feeling like “pins and needles”, which happens when sustained pressure is placed on a nerve.
Paresthesia Information Page, NATIONAL INSTITUTE OF NEUROLOGICAL DISORDERS AND
STROKE, https://www.ninds.nih.gov/Disorders/All-Disorders/Paresthesia-Information-Page (last
visited Mar. 23, 2018).
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On February 21, 2014, Dr. Compas completed yet another medical form in which he opined
that Plaintiff could sit for less than six total hours, stand and/or walk less than two hours,
occasionally lift and/or carry less than ten pounds in an eight-hour workday, with periodic
alternating between sitting and standing to alleviate pain. Dr. Compas again noted evidence of a
limited range of motion and tenderness in the paralumbar area, as well as an antalgic gait. (Tr. 49396.) On January 17 and February 24, 2014, Dr. Compas again noted that Plaintiff complained of
severe pain radiating to the left leg, that she had difficulty getting up from a seated position and
that she walked with a cane/walker. Dr. Compas certified that Plaintiff required a home attendant
for four weeks. (Tr. 499-502, repeats at Tr. 506-07.)
On February 11, 2014, Dr. Mathew Lefkowitz performed a bilateral lumbar facet joint
injection. (Tr. 549, repeats at Tr. 555.) On February 24, 2014, Dr. Lefkowitz performed a
radiofrequency rhizotomy26 of the medial branches of the left lumbar areas (Tr. 547, repeats at Tr.
553), and on March 17, 2014, Dr. Lefkowitz performed a radiofrequency ablation27 of the right
lumbar area. (Tr. 546, 548, repeats at Tr. 554.) On March 17, 2014, Dr. Compas noted that Plaintiff
dragged her leg while using a walker, and advised that Plaintiff needed a home attendant for the
next four weeks. (Tr. 497-98.)

Radiofrequency (“RF”) rhizotomy or neurotomy refers to “a therapeutic procedure
designed to decrease and/or eliminate pain symptoms arising from degenerative facet joints
within the spine. The procedure involves destroying the nerves that innervate the facet joints
with highly localized heat generated with radiofrequency.” Radiofrequency (RF) Rhizotomy or
Neurotomy, NY SPINE MEDICINE, http://www.nyspinemedicine.com/procedures/radiofrequencyrhizotomy.php (last visited Mar. 23, 2018).
26

Radiofrequency ablation (or “RFA”) refers to a procedure used to reduce pain where
“[a]n electrical current produced by a radio wave is used to heat up a small area of nerve tissue,
thereby decreasing pain signals from that specific area.” Radiofrequency Ablation, WEBMD,
https://www.webmd.com/pain-management/radiofrequency-ablation#1 (last visited Mar. 23, 2018).
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On April 21, May 16, and June 16, 2014, Plaintiff returned to Dr. Compas who repeatedly
observed that Plaintiff had an antalgic, limping gait and walked with the aid of a three-pronged
walker, that she used a back brace, and that she had decreased range of motion and muscle spasms.
Dr. Compas also directed Plaintiff to continue to use a three-pronged walker. (Tr. 509-15.) On July
21, 2014, Dr. Compas examined Plaintiff, who reported that she was taking Oxycodone daily to
cope with her pain; Dr. Compas again prescribed a three-pronged walker for Plaintiff. (Tr. 53536.)
On September 4, 2014, Plaintiff reported to Dr. Compas that she was experiencing constant
back pain, but that it was no longer radiating. (Tr. 516-19.) Dr. Compas opined that Plaintiff was
totally incapacitated. (Tr. 520.) On September 9, 2014, Dr. Compas completed another medical
form in which he reported that Plaintiff could sit for less than six total hours, stand and/or walk
less than two hours, occasionally lift and/or carry less than ten pounds in an eight-hour workday.
(Tr. 537-40.) Dr. Compas again noted evidence of a limited range of motion, spasm, and
tenderness in the paralumbar area, and limping. (Id.)
V.

THE ALJ’S DECISION
The ALJ’s decision followed the five-step evaluation process established by the SSA to

determine whether an individual is disabled. (Tr. 10-19.) At step one, the ALJ found that Plaintiff
did not engage in substantial gainful activity between her alleged onset date (April 12, 2012)
through the date of ALJ’s decision (December 2, 2014). (Tr. 12.) At step two, the ALJ determined
that Plaintiff suffered from lumbar degenerative disc disease, and post-surgical repair and
depression disorder, which qualified as severe impairments. (Id.)
At step three, the ALJ determined that Plaintiff’s impairments, either singly or in
combination, did not meet or medically equal any of the impairments listed in 20 C.F.R. Part 404,

15

Subpart P, Appendix 1. (Id.) In reaching this determination, the ALJ focused on Listings 1.00
(“Musculoskeletal”), and 1.04 (“Disorders of the spine”), and found that Plaintiff’s impairments
did not meet the severity criteria in either listing because “no treating or examining physician
has indicated findings that would satisfy the requirements of any listed impairment.” (Id.) More
specifically, the ALJ found that Plaintiff’s impairments did not meet the severity criteria for 1.04,
citing MRI scans of the lumbar spine performed in May of 2012 and May of 2013—both of which
revealed diffuse bulging at L4-L5 with a superimposed disc herniation and bulging at L5-S1, with
no evidence of foraminal narrowing, a protrusion at L4-L5 with minimal nerve root compression28
and mild hypertrophy at L5-S1—and an EMG/NCV study29 performed on March 26, 2013 which
suggested no evidence of lumbosacral radiculopathy.30 (Tr. 12-13, 15, 17.)
The ALJ therefore proceeded to determine Plaintiff’s RFC, finding that Plaintiff was able
to perform a range of sedentary work, with additional limitations noting that Plaintiff can

Nerve root compression refers to “the impingement of a spinal nerve root by a
condition in the spine.” Guide to nerve root compression, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/back_problems/compressed_nerve/resources/articles/whatis-nerve-root-compression/ (last visited Mar. 23, 2018).
28

“NCV” refers to nerve conduction velocity study, a part of an “EMG”, which “uses
electrodes taped to the skin (surface electrodes) to measure the speed and strength of signals
traveling between two or more points”, often used to distinguish between a nerve disorder and a
muscle disorder. “EMG” refers to electromyography, a procedure used to assess muscles and
nerve cells that control them. Electromyography (EMG), MAYO CLINIC,
https://www.mayoclinic.org/tests-procedures/emg/about/pac-20393913 (last visited Mar. 23,
2018).
29

Lumbosacral radiculopathy is a broad term that refers to “a range of symptoms
associated with the nerves of the lumbosacral plexus in the lower back” which encompasses the
nerves that exit the spinal cord at the lumbar region of the spine, and “occurs when an anatomical
abnormality has caused one or more of these nerves to become irritated, pinched or impinged.”
Lumbosacral Radiculopathy Definition, LASER SPINE INSTITUTE,
https://www.laserspineinstitute.com/learn_more/glossary/definition/lumbosacral_radiculopathy/1
55/ (last visited Mar. 23, 2018).
30

16

“occasionally climb ramps or stairs, never climb ladders, ropes or scaffolds, occasionally balance
and stoop, [and] never kneel, crouch and crawl with an unlimited ability to push/pull”, and that
she has “the ability to perform simple, routine, repetitive tasks, low stress jobs, which means no
work at fixed production rate pace, with work that is checked at the end of the workday or
workweek rather than hourly or throughout the day.” (Tr. 14.) In reaching this RFC determination,
the ALJ accorded less weight, and also rejected, the medical opinions of the primary treating
physician, Dr. Compas, finding that “[t]he opinions of Dr. Compas are partially consistent with
the treatment records, which include clinical signs of musculoskeletal impairments”, and that “the
opinions offered [by Dr. Compas] are not supported by the EMG/NCV study, which suggested no
evidence of lumbosacral radiculopathy . . . and the treatment record that frequently noted moderate
improvement.” (Tr. 16.) The ALJ further found that because Dr. Compas is a “family doctor and
not a specialist in the field”, the ALJ would only accord “some weight” to Dr. Compas’s medical
opinion. (Id.)
The ALJ further accorded limited weight to the medical evidence and opinion of Dr.
Fkiaras, the physician who performed a consultative internal medicine examination at the request
of the SSA, including his findings that the claimant “had marked limitations in lifting, carrying,
pushing, pulling, squatting, kneeling, crouching,” “moderate limitations in walking[,] and
moderate to marked limitations in bending, climbing stairs and standing[,] and [that Plaintiff]
should avoid activities that require sitting for extended periods”. (Id.) The ALJ discounted these
opinions because they were offered prior to Plaintiff’s surgery, and the ALJ found them
unsupported by subsequent records that “suggest[ed] moderate improvement.” (Id.)

The ALJ

acknowledged that her determination of Plaintiff’s RFC did not accord with Plaintiff’s own

17

description of the intensity, persistence, and limiting effects of her symptoms, which the ALJ found
was “not entirely credible.” (Tr. 17.)
At step four, the ALJ determined that Plaintiff is unable to perform any past relevant work,
as Plaintiff previously worked as a “Caretaker”, an “unskilled job that requires a medium
exertional capacity”, which the ALJ acknowledged was greater than Plaintiff’s exertional capacity.
(Id.)
At step five, after determining Plaintiff’s RFC, based on age, education, and work
experience, and after consulting the vocational guidelines and a vocational expert, the ALJ
determined that Plaintiff could make a successful adjustment to sedentary work existing in
significant numbers in the national economy.

(Tr. 18-19.)

On that basis, the ALJ found that

Plaintiff was not disabled from the alleged onset date (April 12, 2012) through the date of the
ALJ’s decision (December 2, 2014). (Tr. 19.)
DISCUSSION
Plaintiff challenges the ALJ’s decision on three grounds. First, Plaintiff argues that the
ALJ erred by failing to afford proper weight to the opinions of Plaintiff’s treating physician, Dr.
Compas, and to the opinions of the SSA’s own consultative examining physician, Dr. Fkiaras.
(Pl.’s Br., Dkt. 23, at ECF 16-22.)31 Second, Plaintiff maintains that the ALJ erred by substituting
her own judgment for the opinions of the medical experts, including Dr. Fkiaras. (Id.) Third,
Plaintiff argues that the ALJ erred, in her evaluation of Plaintiff’s statements concerning the
intensity, persistence, and functionally limiting effects of her symptoms, including failing to fully

“ECF” refers to the pagination generated by the CM/ECF system, and not the
document’s internal pagination.
31

18

consider evidence that Plaintiff required a walker to ambulate. (Pl.’s Br., Dkt. 23, at ECF 16, 2223.)
For the reasons stated below, the Court finds that the ALJ committed reversible error in
failing to develop the record to properly determine Plaintiff’s RFC and in evaluating Plaintiff’s
statements concerning the intensity, persistence, and functionally limiting effects of her symptoms.
Furthermore, the Court finds that the ALJ’s error in this regard is grounds for remand to further
develop the record and issue a new decision, as explained more fully herein.32
A. Plaintiff’s RFC
First, the ALJ erred when she concluded that because the “claimant takes Gabapentin and
reportedly gets physical therapy” and “only sees a primary care physician for her back
impairment”, Plaintiff’s treatment was “fairly conservative” and the “diagnostic testing was
relatively mild.” (Tr. 17.) In concluding that Plaintiff’s treatment for her pain was “conservative”,
the ALJ failed to consider that: (1) Plaintiff was prescribed, and took, Voltaren gel, Oxycodone,
and Gabapentin, among other medications, for her pain (Tr. 21, 35-36, 180, 218, 450-51, repeats
at Tr. 491-92; Tr. 535-36); (2) Plaintiff had to undergo spinal surgery and physical therapy from

32

Because the Court reverses and remands on these grounds, the Court need not address
Plaintiff’s other arguments. However, on remand, the assigned ALJ should give appropriate
consideration to the medical evidence regarding Plaintiff’s ambulation issues in assessing whether
her impairments meet the criteria of Listings 1.00 and 1.04. For example, in concluding that
Plaintiff’s impairments did not meet these listings, ALJ Wexler failed to adequately consider the
substantial evidence establishing Plaintiff’s inability to ambulate effectively. See 20 C.F.R. Part
404, Subpart P, Appendix 1, §1.00, 1.00(B)(2)(b) (“[E]xamples of ineffective ambulation include,
but are not limited to, the inability to walk without use of a walker.”). Dr. Compas prescribed a
cane for Plaintiff in July 2012. (Tr. 211.) In February 2013, Dr. Fkiaras confirmed that Plaintiff’s
use of a cane was medically necessary. (Tr. 293-94.) Following Plaintiff’s July 2013 back surgery,
Dr. Babu prescribed her a three-pronged walker. (Tr. 329-30.) Such evidence contradicts ALJ
Wexler’s determination that Plaintiff’s need for a cane and/or walker to ambulate was “not well
supported” by the record (Tr. 17), and indicates that Plaintiff’s impairments may meet the criteria
of Listings 1.00 and 1.04.
19

June through July 2013, requiring a home attendant for four weeks post-surgery (Tr. 331-36,
repeats at Tr. 341-42; Tr. 318, 339-40); (3) Plaintiff again required a home attendant for eight
weeks following surgery, and “still” had constant “chronic back pain” (Tr. 314-17, repeats at Tr.
443, 445, 484-85; Tr. 329-30, 338, 447, 487) (4) after Plaintiff’s surgery, Dr. Lefkowitz performed
a therapeutic bilateral lumbar facet joint injection (Tr. 549), radiofrequency rhizotomy of the
medial branches of the left lumbar areas (Tr. 547), and radiofrequency ablation, none of which
alleviated Plaintiff’s pain (Tr. 365, 516-19) and (5) Drs. Lefkowitz and Compas observed no
improvement in Plaintiff’s pain level or ambulation following the surgery (Tr. 329-30, 338, 447,
487, 497-502, 509-15, 535-36, 552). Therefore, the ALJ’s conclusion that Plaintiff’s treatment
was “fairly conservative” was not supported by substantial evidence. Medick v. Colvin, No. 16
Civ. 341, 2017 WL 886944, at *12 (N.D.N.Y. Mar. 6, 2017) (holding that ALJ’s finding of
“conservative” treatment was not supported by the record, where “the ALJ does not explain why
plaintiff’s course of medication . . . is considered conservative treatment, [and] there is no evidence
that more aggressive treatment options were available or determined to be medically appropriate
for plaintiff”); see also Hamm v. Colvin, No. 16 Civ. 936, 2017 WL 1322203, at *25 (S.D.N.Y.
Mar. 29, 2017) (holding that ALJ erred in deeming plaintiff’s treatment “conservative” where “the
ALJ has pointed to nothing in the record to suggest that Plaintiff was an eligible candidate for more
aggressive medical treatment, such as surgery”).
The ALJ’s approach in this case violated the basic rule that “[t]he ALJ is not permitted to
substitute his [or her] own expertise or view of the medical proof for the treating physician’s
opinion” or a qualified expert. Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015). This is
particularly true in light of the fact that the ALJ only gave the opinion of the treating physician,
Dr. Compas, “some weight” because he “is a family doctor and not a specialist” and gave Dr.

20

Fkiaras’s opinion “limited weight” because his opinion “was offered prior to the claimant’s surgery
and is not supported by subsequent records that suggest moderate improvement.” (Tr. 16.) The
ALJ could have sought another consultative examination for Plaintiff after her surgery to evaluate
the nature of Plaintiff’s treatment and pain symptoms, see Burger v. Astrue, 282 F. App’x 883,
885 (2d Cir. 2008) (“Indeed, the relevant regulations specifically authorize the ALJ to pay for a
consultative examination where necessary to ensure a developed record.”) (citing 20 C.F.R. §
404.1512(d)-(f)), but it was legal error for the ALJ to “make[] an RFC determination in the absence
of supporting expert medical opinion”. Legall v. Colvin, 13-CV-1426, 2014 WL 4494753, at *4
(S.D.N.Y. Sept. 10, 2014) (quoting Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347
(E.D.N.Y. 2010)). Therefore, the case should be remanded for further development of the record.
B. Plaintiff’s Credibility
Second, the ALJ failed to properly evaluate Plaintiff’s credibility. At the administrative
hearing, Plaintiff testified about the pain and limitations caused by her claimed disability, including
that:


“70 percent of the day, your [H]onor, I’m laying in my bed. I’ll get up and
go to the bathroom, walk with my cane. And I’ll walk to the kitchen, maybe
to heat something up in the microwave. And that’s my day. . . . I have to sit
on the toilet and wash by the sink. I can’t begin to shower anymore. . . . I
can’t make it without anything to hold onto. I have to walk with a cane, I
have to walk with a walker.” (Tr. 37-38.)



“I have pain down my leg, like numbness, but the pain is mostly in my lower
back. . . . [I]t’s just numbness. It just constantly hurts. All day, every day.
Like when I’m sitting right here; just boom, boom, boom. . . . All day, every
day. I don’t know what is this pain.” (Tr. 43.)



“Nothing helps me. Surgery has not helped it. Nothing is helping. I’m in
pain constantly, every day, all day long.” (Tr. 43-44.)



“This has stopped my life. I can’t go out dancing, I can’t pick up things the
way I used to. . . . My life is nothing now. I have to travel with this all the
time. . . . I cannot walk alone without a walker.” (Id.)
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Additionally, the record is replete with Plaintiff’s reports of her pain to her treating physicians.
(See Tr. 31-32, 43-44, 152-54, 179-80, 191-94, 197-217, 244-47, 249-68, 273-74, 283-87, 292-95,
300-06, 312-17, 319, 322-27, 329-30, 337-40, 343-44, 352-53, 355-60, 365-72, 375-80, 385-86,
420-21, 422, 427-34, 439, 441-45, 449-57, 493-502, 512-19, 535-40.) Despite this evidence, the
ALJ found that Plaintiff’s statements concerning her pain, and the limitations caused by her pain,
were “not entirely credible.” (Tr. 17; see also id. (“While the claimant testified that she does very
little at home and cannot walk without a cane or walker, her allegations of limitation are not well
supported.”).)
In fact, at the ALJ hearing, ALJ Wexler stated on the record that she felt that “the diagnostic
testing [was] not matching up to [Plaintiff’s] testimony.” (Tr. 41.) However, the only bases for
this negative credibility determination that the Court can ascertain from the ALJ’s opinion are: (1)
her finding of “fairly conservative” treatment (discussed supra) and (2) that “the claimant testified
[at the ALJ hearing] that she receives some help with activities of daily living . . . [she] is able to
prepare simple meals . . . [but] cannot get in the shower and cannot wash by the sink. Yet during
the consultative examination, the claimant reported that . . . [she] cook[ed] daily, clean[ed] four
times a week, [did] laundry once a week, shop[ped] three times a week, shower[ed] and dresse[d]
daily.” (Tr. 13.) ALJ Wexler ultimately concluded that “[b]ased on the entire record, including
the testimony of the claimant . . . the evidence also establishes that the claimant retains the capacity
to function adequately to perform many basic activities associated with work”. (Tr. 17 (emphasis
added).) This was error.
As an initial matter, the ALJ has an affirmative obligation to develop the administrative
record. Lamay, 562 F.3d at 508-09. It was not proper for the ALJ to discredit Plaintiff’s testimony
regarding the limitations of her disability without asking Plaintiff to clarify the seeming
22

contradictions between her statements at the consultative examination and her testimony at the
ALJ hearing. Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (“A
finding that the witness is not credible must nevertheless be set forth with sufficient specificity to
permit intelligible plenary review of the record. The failure to make credibility findings . . . fatally
undermines the [Commissioner’s] argument that there is substantial evidence adequate to support
[the] conclusion that claimant is not under a disability.”).
Further, under 20 C.F.R. § 404.1529, an ALJ must consider the Plaintiff’s statements of
the debilitating effects of her pain to the extent those statements are “reasonably . . . consistent
with” all of the evidence. Beyond showing that a medical impairment could reasonably be
expected to cause the symptoms of which the applicant complains—which Plaintiff showed in this
case, according to the ALJ (Tr. 17)—an applicant has no burden to further “substantiate” or
“support” her subjective statements of pain. See Meadors v. Astrue, 370 F. App’x 179, 184 (2d
Cir. 2010) (“[The Claimant’s] allegations [of the limiting effects of her symptoms] need not be
substantiated by medical evidence, but simply consistent with it. The entire purpose of § 404.1529
is to provide a means for claimants to offer proof that is not wholly demonstrable by medical
evidence.” (quoting Hogan v. Astrue, 491 F. Supp. 2d 347, 353 (W.D.N.Y. 2007) (brackets
omitted))); Caffrey v. Astrue, No. 06 Civ. 3982, 2009 WL 1953008, at *5 (S.D.N.Y. July 6, 2009)
(“An adjudicator is expressly prohibited at this step from rejecting a claimant’s allegations solely
because objective medical evidence does not substantiate them.”) (citing 20 C.F.R.
§ 404.1529(c)(2)).
The Court finds that, given Plaintiff’s extensive testimony about her pain, and that the
available medical evidence corroborates Plaintiff’s subjective claims of pain, the ALJ erred in
discounting Plaintiff’s testimony. Rockwood v. Astrue, 614 F. Supp. 2d 252, 271 (N.D.N.Y. 2009)

23

(“[A]n individual’s symptoms can sometimes suggest a greater level of severity of impairment
than can be shown by the objective medical evidence alone.”) (citing SSR 96-7P); cf. Cichocki,
729 F.3d at 177 (“[W]here [the Court] is ‘unable to fathom the ALJ’s rationale in relation to
evidence in the record, especially where credibility determinations and inference drawing is
required of the ALJ,’ we will not ‘hesitate to remand for further findings or a clearer explanation
for the decision.’”) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)).
*

*

*

In sum, the Court finds that the ALJ committed reversible error by: (1) failing to accord
appropriate deference to the medical opinions of Plaintiff’s treating physicians and the SSA’s
consulting physician; (2) substituting her own opinions for those of the qualified medical experts;
and (3) improperly assessing the credibility of Plaintiff’s statements regarding the pain and
restrictions she experiences as a result of her claimed disability. The Court therefore remands this
case for further proceedings consistent with this Order.
CONCLUSION
For the reasons set forth above, the Court grants Plaintiff’s motion for judgment on the
pleadings and denies the Commissioner’s cross-motion. The Commissioner’s decision is
remanded for further consideration consistent with this Order. The Clerk of Court is respectfully
requested to enter judgment and close this case.
SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: March 23, 2018
Brooklyn, New York

24