Hanes v. Commissioner of Social Security

Filing 27

ORDER granting 20 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendant's motion for judgment on the pleadings is denied. The plaintiff's motion fo r judgment on the pleadings is granted to the extent it seeks a remand for further proceedings. Accordingly, this case is remanded for further proceedings consistent with this Memorandum and Order. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/14/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-1991 (JFB)
_____________________

BRADFORD P. HANES,
Plaintiff,
VERSUS

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

___________________
MEMORANDUM AND ORDER
September 14, 2012
___________________

in accordance with this Memorandum and
Order. It is undisputed that the ALJ, in
rejecting the opinion of the treating
physician, made misstatements regarding the
number and dates of visits plaintiff had with
Dr. Springer. In particular, the ALJ relied,
in part, on his belief that plaintiff received
no medical attention from 2001 to 2004,
except when he saw Dr. Springer for his
medical board application, and then had no
medical attention until November 2008.
That factual statement by the ALJ is
erroneous because the record clearly
indicates that plaintiff received medical
attention from Dr. Springer on a number of
occasions during that timeframe. Although
defendant argues that this factual error was
harmless and no remand is required because
the overlooked treatment was sporadic and
other evidence in the record undermined the
treating physician’s opinion, the Court
believes a remand is warranted. The Court
recognizes that there is evidence in the

JOSEPH F. BIANCO, District Judge:
Bradford P. Hanes (the “plaintiff” or
“Hanes”) commenced this action, pursuant
to the Social Security Act, 42 U.S.C.
§ 405(g),
seeking
review
of
the
Commissioner of Social Security’s decision
to deny his application for disability
insurance benefits (“DIB”). Plaintiff
contends, among other things, that (1) the
Administrative Law Judge (“ALJ”) failed to
properly and accurately address all of the
treatment records and opinion by Hanes’
treating and board-certified orthopedist, Dr.
Stuart Springer; and (2) the ALJ failed to
properly
address
Hanes’
subjective
complaints. Presently before the Court are
the parties’ motions for judgment on the
pleadings, pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure.
For the reasons that follow, the case is
remanded to the ALJ for further proceedings
1

Since
retiring
from
full-time
employment, plaintiff has worked on a parttime basis in several different capacities.
(AR 29.) Plaintiff utilized his notary license
to conduct title closings for home equity
lines of credit from June 2002 to 2005. (AR
29-30, 42, 44-45.) Plaintiff would attend the
closing in somebody’s home, carry a
briefcase with documents, present the papers
to the customer, check their identification,
sign it, and put his notary stamp on the
documents. (AR 43-44, 157.) Afterwards, he
would return home and send the documents
back to the title company. (AR 43.) He
performed these title closings approximately
once per week. (AR 30.) Plaintiff testified
that he might have conducted more title
closings if more had been available, but that
he “turned down a lot of work” because the
closings were far away. (AR 43.) He last
worked for the title company in
approximately 2005 because the company
stopped calling him with jobs. (AR 44-45.)

record that undermines Dr. Springer’s
opinion. However, the Court is unable to
conclude, under the particular circumstances
of this case, that the ALJ’s decision was not
materially impacted by his erroneous factual
assertion and his apparent failure to consider
certain medical information from the
treating physician. A conclusion by this
Court that the factual error in this case was
harmless would simply be speculation, and
thus, remand is warranted to ensure that the
ALJ fully considers this overlooked medical
information in light of the entire record
pursuant to the treating physician rule, and
thoroughly applies the requisite factors to
decide how much weight to give Dr.
Springer’s opinion.
I. BACKGROUND
A. Facts
As discussed infra, plaintiff has
alleged a history of pain in his right ankle,
left shoulder and knees.

Plaintiff also has worked part-time for
Strategic Security Company from 2002
through the present. (AR 30, 45-46.)
Plaintiff performed security work in
building lobbies. (AR 30.) This work
included greeting people, checking their
identification, and picking up a telephone to
announce guests. (AR 30, 36, 46.) In this
job, plaintiff was provided with a desk and a
seat and was permitted to sit or stand. (AR
36.) In plaintiff’s Work History Report
provided
to
the
Social
Security
Administration, plaintiff indicated that, in
any given day, he walked and stood for five
or more hours and did not sit at all. (AR
159.) However, he testified that he could not
do this job consistently due to pain. (AR 36.)

1. Summary of Plaintiff’s Work History
Plaintiff was born in 1957 and has a
high-school education. (AR1 28.) Plaintiff
worked as a police officer for the New York
City Police Department (the “NYPD”) for
approximately twenty years. (AR 29, 134,
156.) Plaintiff ceased working full-time at
the NYPD in December 2001, and testified
that he retired from the NYPD in March
2002 as a result of an NYPD Medical Board
decision. (AR 28-29.) Plaintiff retired as a
Sergeant
and
received
disability
compensation of approximately $6,500 per
month as a result of the Medical Board
decision. (AR 29, 134, 341.)

Plaintiff reported that he could work an
eight-hour shift, but that he would need a
couple days to recover, to soak himself, and
to get the swelling down. (AR 37.) Shifts

1

“AR” refers to the administrative record filed on
appeal.
2

201.) On February 3, 1998, orthopedic
surgeon Basil Dalavagas, M.D. (“Dr.
Dalavagas”),
performed
surgery
on
plaintiff’s right ankle, inserting a plate and
screws. (AR 197-99, 202.) Postoperatively,
plaintiff was placed in a splint to
accommodate swelling until the swelling
decreased to the point where he was
considered stable for discharge. (AR 199.)
Plaintiff was subsequently discharged from
the hospital on February 6, 1998. (AR 199.)

were from 8:00 a.m. to 4:00 p.m., or from
4:00 p.m. to 12:00 a.m. (AR 30, 45.)
Plaintiff estimated that he typically worked
once or twice per month, but occasionally
worked up to three days when filling in for
colleagues. (AR 46.) Plaintiff did not believe
that he could consistently perform the
security job five days a week. (AR 37.)
Occasionally, plaintiff would also perform
investigative work for the company on his
home computer. (AR 47.) Plaintiff stated
that he could write and use a computer
without difficulty. (AR 34-35.)

Dr. Dalavagas saw plaintiff for followup appointments on March 4, 1998, March
18, 1998, and April 13, 1998. (AR 214.) In
Dr. Dalavagas’ follow-up report, he noted
that a clinical examination showed
improvement in the range of motion in
plaintiff’s right ankle. (AR 212-14.) An xray showed good healing of the bimalleolar
fracture and no fracture lines. (AR 212-14.)

Plaintiff testified that he lived in a
second floor apartment and climbed the
stairs approximately twice per day. (AR 28.)
A typical non-work day for the plaintiff
included waking up around 8:00 a.m.,
showering, watching television, and doing
home physical therapy. (AR 38.)

Physical
therapist
Seth
Meisel
(“Meisel”) subsequently evaluated plaintiff.
(AR 215.) Upon initial evaluation following
surgery, plaintiff’s ankle strength was
limited to 3+/5 for both dorsiflexion and
plantarflexion and 3/5 for both inversion and
eversion. (AR 215.) In a report dated April
27, 1998, Meisel noted that plaintiff’s ankle
strength had increased since surgery. (AR
215.) Plaintiff’s ankle dorsiflexion had
increased to 4-/5. (AR 215.) By June 5,
1998, plaintiff’s ankle strength had
improved to a 4+/5 for both dorsiflexion and
plantarflexion and to 4/5 for both inversion
and eversion. (AR 216.) Plaintiff no longer
required the use of a crutch, but he still
found jumping and running difficult and
only possible for brief periods of time. (AR
216.)

Plaintiff tried to incorporate his physical
therapy into his housework. (AR 39.) He
vacuumed, cooked a little, shopped with his
girlfriend, and drove. (AR 39.) He could
dress himself and make his bed. (AR 49.) In
2008, plaintiff flew to Europe with his
girlfriend for a vacation that included a
cruise and bus tours. (AR 50-51.) Plaintiff
enjoyed fishing and often went fishing one
to two times per week at the pier in Oyster
Bay. (AR 37.)
2. Medical Evidence Prior to the Alleged
March 20, 2002 Onset Date
On February 1, 1998, plaintiff injured
his right foot while on duty with the NYPD
and went to the emergency room at St.
Vincent’s Hospital. (AR 197-210.) Plaintiff
underwent a physical examination that
indicated right ankle pain and swelling. (AR
199.) An x-ray upon admission showed a
bilateral malleolar fracture and soft tissue
swelling in plaintiff’s right ankle. (AR 199-

On April 6, 1999, Dr. Dalavagas
performed a second surgery on plaintiff to
remove the surgical fixation device
previously implanted in plaintiff’s right
3

that a home exercise program would be
sufficient to maintain strength. (AR 225.)

ankle. (AR 314-16.) Subsequently, plaintiff
returned to physical therapy with Meisel
from June 7, 1999 through September 1,
1999. (AR 218-24.) Upon preliminary
evaluation following the hardware removal,
Meisel found that swelling in plaintiff’s
right ankle was present, though pain was
minimal. (AR 218.) By the time of discharge
in September 1999, plaintiff had ankle
strength of 5/5 for dorsiflexion and 4+/5 for
plantarflexion, inversion and eversion. (AR
224.) Short distance jogging was possible,
with pain being absent at times, and minimal
at other times. (AR 224.)

On May 14, 2001, the NYPD’s Medical
Board Police Pension Fund Article II (the
“Medical Board”) reviewed plaintiff’s
application
for
Accident
Disability
Retirement. (AR 265-67.) The Medical
Board had previously denied plaintiff’s
original application on December 18, 2000.
(AR 265.) Plaintiff’s physical examination
at that time “was described essentially as
normal.” (AR 265.) When the Medical
Board reviewed plaintiff’s May 2001
application, it noted that plaintiff stated that
his symptoms continued to be the same. (AR
266.)

Plaintiff first saw orthopedic surgeon
Stuart Springer, M.D. (“Dr. Springer”), on
February 15, 2001. (AR 263.) Plaintiff
complained of recurrent right ankle swelling
and discomfort that arose after standing or
going up and down stairs for extended
periods of time. (AR 263.) Dr. Springer’s
physical exam noted that plaintiff had mildly
reduced range of motion in the right ankle
and healed surgical scars. (AR 263.)
Moreover, there was tenderness along the
medial malleolus, the lateral malleolus, and
in the fibula collateral ligament area. (AR
263.) X-rays revealed a mended fracture of
the right ankle with early degenerative joint
disease and some loose bodies in the ankle
joint. (AR 263.) Dr. Springer recommended
stretching exercises and anti-inflammatories,
if necessary. (AR 263.) Dr. Springer stated
that he would consider further arthroscopic
surgery if plaintiff’s symptomology
worsened. (AR 263.) Dr. Springer also noted
that plaintiff complained of knee pain after
he was in an altercation during which his left
knee suddenly locked up. (AR 225.) Both
knees suffered slight abrasions and were
slightly puffy, but had an excellent range of
motion. (AR 225.) Dr. Springer diagnosed
plaintiff
with
traumatic
bilateral
chondromalacia of the patellae and believed

The Medical Board performed a physical
examination of plaintiff and plaintiff was
able to stand on his toes and heels. (AR
266.) Plaintiff was able to squat down
almost fully without assistance. (AR 266.)
The examination also revealed a bony
prominence on the right side, which was a
result of the injury and subsequent surgeries.
(AR 266.) Moreover, the Medical Board
found no soft tissue swelling and no effusion
in the ankle. (AR 266.) Though there was
decreased sensation in the heel, the incisions
were well-healed and not tender. (AR 266.)
Plaintiff did not experience pain when
conducting the physical movements
involved in the examination. (AR 266.) The
Medical Board reaffirmed its disapproval of
plaintiff’s application because it felt that
plaintiff could still perform the full duties of
a New York City police officer. (AR 267.)
Dr. Springer re-evaluated Plaintiff on
November 15, 2001. (AR 226, 286.) Dr.
Springer reported that plaintiff’s bilateral
knee pain remained symptomatic, but had
not become significantly worse. (AR 226.)
Plaintiff reported that he felt increasing pain
on a more monthly basis than he had felt
4

he indicated that he was treating plaintiff for
degenerative joint disease of the right ankle.
(AR 270-71.) Dr. Springer noted that he
most recently examined plaintiff on August
8, 2002. (AR 271.) Dr. Springer reported
symptoms of stiffness, pain and swelling in
that ankle. (AR 270.) Plaintiff’s treatment
plan at the time consisted of a home exercise
program. (AR 270.) Dr. Springer opined that
plaintiff was restricted from performing his
past duties as a police officer and that his
work-related restrictions were permanent.
(AR 271.) Additionally, Dr. Springer
believed that plaintiff was limited to
sedentary work only. (AR 271.)

previously, which coincided with some
swelling and sensitivity along the anterior
fibula collateral ligament area. (AR 226.)
On January 28, 2002, the NYPD
Medical Board reviewed plaintiff’s third
application
for
Accident
Disability
Retirement
and
acknowledged
Dr.
Springer’s November 2001 examination
report. (AR 341-43.) The Medical Board
also pointed to an examination report by Dr.
Axlerod from January 8, 2002. (AR 342.)
This report concluded that the likelihood of
plaintiff returning to full duty as a Sergeant
was “nil.” (AR 342.) Plaintiff reported
unchanged symptomology, and the Medical
Board’s physical examination showed that
plaintiff was able to walk on his toes and
heels and squat fully without assistance.
(AR 342.) The examination also showed
some sensitivity of the incision over the
lateral malleolus, the distal fibula and at the
medial malleolus. (AR 342.) There was
some tenderness in the area of the tarsal
bones and the medial and lateral malleolus,
but sensation and pulses were normal. (AR
342.)

Defendant alleges that plaintiff sought
no further medical attention until June 27,
2005. (AR 289.) However, as plaintiff notes
in his brief, there is an attending physician
statement in the administrative record that
indicates plaintiff was treated or evaluated
on July 24, 2003. (AR 301.)
Plaintiff returned to see Dr. Springer on
June 27, 2005. (AR 289.)2 On June 30,
2005, plaintiff underwent a magnetic
resonance imaging (“MRI”) study of his
right ankle. (AR 273-74.) The radiologist
described plaintiff as “a 47-year-old male
with swelling for three months.” (AR 273.)
The MRI exam revealed normal findings
except for posttraumatic arthrosis of the
tibiotalar joint, a small tibiotalar joint
effusion and a calcaneal valgus deformity.
(AR 273-74.)

Ultimately,
the
Medical
Board
concluded that significant objective findings
precluded plaintiff from performing the full
duties of a New York City Police Officer.
(AR 342.) The Medical Board, therefore,
rescinded its previous decision and
unanimously recommended approval of
plaintiff’s
application
for
Accident
Disability Retirement. (AR 342.) The
Board’s final diagnosis was “Chronic
Recurrent Derangement of the Right Ankle,
Unresolved.” (AR 342-43.)

On July 14, 2005, Dr. Springer
completed another Attending Physician’s
Statement and diagnosed plaintiff with
status post-bimalleolar fracture of the right
ankle with effusion and early arthrosis. (AR
298.) Dr. Springer stated that plaintiff’s
symptoms included occasional pain,

3. Medical Evidence Subsequent to the
Alleged March 20, 2002 Onset Date
On August 12, 2002, Dr. Springer
completed a physician’s statement in which

2

Both parties point out that Dr. Springer’s notes from
that date are difficult to read. (AR 289.)
5

tendon, a three-millimeter partial thickness
tear of the Infraspinatus tendon, possible
mild impingement, and degenerated glenoid
labra. (AR 276-78.) On November 28,
2005, a chest x-ray of plaintiff was
described as “unremarkable.” (AR 279.) On
December 2, 2005, an electrocardiogram
was normal except for rate. (AR 282.) On
December 5, 2005, plaintiff was cleared for
anesthesia and surgery. (AR 233-35.)

swelling, and stiffness, though he failed to
quantify the severity. (AR 298.) Plaintiff’s
present treatment was a home exercise
program, with which he was believed to be
compliant. (AR 298.) Dr. Springer again
opined that plaintiff was unable to return to
work as a police officer. (AR 299.)
On July 26, 2005, physical therapist
Marsha Levenson, P.T. (“Levenson”),
performed an upper extremity evaluation on
plaintiff. (AR 299-30, 241-42, 296-97.)
Plaintiff complained of increased pain in his
left shoulder and elbow, as well as his left
hip. (AR 230.) Levenson diagnosed left
rotator cuff tendinitis and left lateral
epicondylitis. (AR 229, 295.) The
examination showed reduced range of
motion in the left shoulder and elbow, and
left shoulder motor strength of 3+/5. (AR
229.) Left elbow flexion and extension was
listed as 4-/5 and 3+/5, respectively. (AR
229.) Plaintiff described his pain level as 7
out of 10. (AR 230.) Levenson noted that
plaintiff had no neurological deficits, but
had a decreased ability when lifting heavy
objects and taking long walks. (AR 230.)

On December 9, 2005, Dr. Springer
issued a pre-operative report in which
plaintiff reported a history of pain in his left
shoulder for the previous twelve months.
(AR 232.) On the same day, Dr. Springer
performed
arthroscopic
surgery
on
plaintiff’s left shoulder. (AR 235-37.) Dr.
Springer issued his postoperative diagnoses
as a “partial rotator cuff tear, left shoulder
with labral tear and impingement,” and a
superior labral anteroposterior (“SLAP”)
lesion with a labral tear. (AR 225.) Dr.
Springer also diagnosed a tear on the A-side
of the rotator cuff and subacromial bursitis.
(AR 225.)
On January 4, 2006, Dr. Springer noted
that plaintiff was doing quite well. (AR
293.) On January 25, 2006, physical
therapist Levenson provided an update on
plaintiff’s shoulder status. (AR 249-50.) The
muscular strength and range of motion of
plaintiff’s left shoulder was limited to 2-/5.
(AR 249.) Plaintiff described his pain at a
“10” on a scale from 1 to 10. (AR 250.)
Plaintiff was unable to reach behind his head
or back, but had no neurological deficits.
(AR 250.)

Plaintiff attended physical therapy for
approximately the next month. (AR 243.) A
report from Levenson, on August 25, 2005,
confirms a diagnosis of rotator cuff
tendonitis and left lateral epicondylitis. (AR
247.) The report shows that plaintiff’s left
shoulder and elbow pain had decreased from
7/10 to 5/10. (AR 247.) Levenson also
reported a forty-percent increase in activity
of daily living function and a sixty-percent
increase in shoulder and elbow flexibility.
(AR 247.)

On February 3, 2006, plaintiff reported
decreased pain, decreased tenderness,
decreased stiffness, and increased flexibility
with physical therapy. (AR 251.) Plaintiff
stated he was unable to lift more than one
pound and experienced difficulty when
performing overhead activities. (AR 251.)

Dr. Springer ordered an MRI of
plaintiff’s left shoulder on or about
September 16, 2005. (AR 276.) Dr.
Springer’s report indicates that plaintiff’s
left shoulder displayed a three-millimeter
partial thickness tear of the Supraspinatus
6

By February 6, 2006, plaintiff noted that he
was feeling better. (AR 251.) On February 8,
2006, plaintiff complained again of pain and
stiffness. (AR 251.) On February 24, 2006,
plaintiff stated that his pain level was at
8/10. (AR 254.) Levenson reported that
plaintiff’s left shoulder range of motion and
strength had increased to 3+/5, but that
plaintiff still had difficulty lifting, pushing
and pulling. (AR 254.)

morning upon awakening. (AR 330.)
Plaintiff stated that he suffers from swelling
of the ankle throughout the day after
prolonged standing or walking. (AR 330.)
Plaintiff stated that the pain in the right
ankle occurs intermittently, mainly with
prolonged standing. (AR 330.) At the time
of the consultative examination, plaintiff
rated his right ankle pain level as a 3 on a
10-point scale. (AR 330.) Dr. Calvino noted
that plaintiff was not participating in any
physical therapy program at that time for his
ankle pain. (AR 330.)

On March 24, 2006, Levenson noted that
plaintiff’s pain level had decreased to 7/10
and had a strength rating of 4-/5. (AR 257.)
Throughout April 2006, plaintiff told
Levenson that his shoulder felt better. (AR
260-61.)

Plaintiff also complained of left shoulder
pain that has been present ever since
undergoing surgery to repair a labral tear on
the left shoulder. (AR 330.) Plaintiff
complained of occasional, nonradiating pain
in the left shoulder that mainly occurs with
any repetitive overhead activity. (AR 330.)
Plaintiff rated his left shoulder pain as 0 on a
10-point scale. (AR 330.) Plaintiff denied
any focal numbness in the ankle or shoulder,
though he did report intermittent tingling in
the right ankle. (AR 330-31.)

In May 2006, Dr. Springer completed
another Attending Physician’s Statement.
(AR 305-07.) Dr. Springer noted that he last
treated plaintiff on January 4, 2006. (AR
306.) Plaintiff’s treatment program was a
home exercise program. (AR 305.) Dr.
Springer repeated that plaintiff was limited
to sedentary work. (AR 306.)
On April 30, 2007, Steven Calvino,
M.D. (“Dr. Calvino”), completed a
consultative examination of plaintiff. (AR
330-34.) The New York State Division of
Disability Determination referred plaintiff to
Dr. Calvino for an orthopedic examination.3
(AR 330.)

Plaintiff reported a history of asthma and
a prescription for an Albuterol inhaler. (AR
331.) Plaintiff went on to describe his
activities of daily living for Dr. Calvino.
(AR 331.) Plaintiff stated that he cooks two
to three times per week, cleans once per
week, and showers and dresses himself
daily. (AR 331.) Additionally, plaintiff’s
activities include watching TV, listening to
the radio, reading, going out to the store,
socializing with friends, and fishing. (AR
331.)

Plaintiff told Dr. Calvino that he had had
a longstanding history of right ankle pain
ever since he sustained a right ankle fracture
in 1998. (AR 330.) Plaintiff described the
right ankle pain as a constant stiffening
sensation that occurred mainly in the

Dr. Calvino’s physical examination
showed that plaintiff appeared to be in no
acute distress. (AR 332.) Plaintiff had
normal gait and station, could walk on his
heels and toes without difficulty, and could
squat fully. (AR 332.) Plaintiff needed no
help changing for the exam or getting on and

3

Plaintiff, in his brief in support of his cross-motion
for judgment on the pleadings, explains that the
Division of Disability Determination is the state
agency charged with conducting initial disability
determinations
for
the
Social
Security
Administration. (Pl.’s Br. 13.)
7

cuff with subacromial decompression. (AR
344.) Plaintiff had undergone a “good
course” of physical therapy, but periodically
had had problems with intermittent
tendonitis that reduced his range of motion
and strength. (AR 344.)

off the exam table. (AR 332.) Plaintiff was
also able to rise from a chair without
difficulty. (AR 332.)
Plaintiff’s hand and finger dexterity was
intact with grip strength of 5/5 bilaterally.
(AR 332.) Dr. Calvino examined plaintiff’s
upper extremities. (AR 332.) Plaintiff had
full range of motion in his shoulders,
elbows, forearms, wrists, and fingers
bilaterally. (AR 332.) Strength in plaintiff’s
distal and proximal muscles was listed as
5/5 bilaterally. (AR 332.) Plaintiff showed
no evidence of joint inflammation, effusion,
instability, or sensory abnormality. (AR
332.)

Dr. Springer explained that plaintiff’s
injuries had severely restricted his ability to
perform activities of daily living. (AR 344.)
Specifically, Dr. Springer noted that
plaintiff’s right ankle injury had restricted
his movement and that his left shoulder
injury reduced his ability to lift, carry, and
push objects. (AR 344.) Dr. Springer
believed these changes were permanent in
nature and could possibly worsen over the
years. (AR 344.)

Dr. Calvino also examined plaintiff’s
lower extremities. (AR 332.) Plaintiff had
full range of motion in his hips, knees, and
ankles bilaterally. (AR 332.) Strength in
plaintiff’s distal and proximal muscles was
listed as 5/5 bilaterally. (AR 332.)
Moreover, an x-ray on plaintiff’s left
shoulder was unremarkable. (AR 332.)

4. Plaintiff’s Application to the Social
Security Administration
Plaintiff filed an application to the Social
Security Administration (the “SSA”) for
disability insurance benefits on June 12,
2006. (AR 98.) Plaintiff originally alleged
that he was disabled beginning February 1,
1998. (AR 98, 133.) Plaintiff subsequently
amended his alleged onset date, claiming
that he was disabled beginning March 30,
2002. (AR 120.) The SSA denied the
application. (AR 64-71.) Plaintiff appealed
the SSA’s decision and requested a hearing
before an Administrative Law Judge (the
“ALJ”) Seymour Rayner. (AR 72.) The
hearing took place on February 17, 2007.
(AR 24-52.) The ALJ subsequently denied
plaintiff’s claim. (AR 23.)

On November 6, 2008, Dr. Springer
wrote a letter to plaintiff’s attorney in which
he reviewed plaintiff’s treatment history.
(AR 344.) Dr. Springer described that
plaintiff had had intermittent pain and
swelling with reduced range of motion of
the right ankle since surgery in 1998. (AR
344.) Dr. Springer pointed out that he had
treated
plaintiff’s
ankle
injury
“conservatively.” (AR 344.) Dr. Springer
recognized that further surgery would be
considered if plaintiff’s injury continued to
restrict his movements or worsened in time.
(AR 344.)

Plaintiff consequently filed a request for
review of the ALJ’s decision. (AR 11, 1314.) The Appeals Council denied plaintiff’s
request for review on March 3, 2011,
rendering the ALJ’s decision final. (AR 1.)

Dr. Springer also noted that plaintiff had
developed a left shoulder problem. (AR
344.) Plaintiff underwent arthroscopic
surgery in 2005 with a repair of the SLAP
lesion, removal of tears of the glenoid
labrum, and a debridement of the rotator
8

B. Procedural History

weigh the conflicting evidence in the
record.” Clark v. Comm’r of Soc. Sec., 143
F.3d 115, 118 (2d Cir. 1998). If the court
finds that there is substantial evidence to
support the Commissioner’s determination,
the decision must be upheld, even if there is
substantial evidence for the plaintiff’s
position. Yancey v. Apfel, 145 F.3d 106, 111
(2d Cir. 1998); Jones v. Sullivan, 949 F.2d
57, 59 (2d Cir. 1991). “Where an
administrative decision rests on adequate
findings sustained by evidence having
rational probative force, the court should not
substitute its judgment for that of the
Commissioner.” Yancey, 145 F.3d at 111;
see also Jones, 949 F.2d at 59 (quoting
Valente v. Sec’y of Health & Human Servs.,
733 F.2d 1037, 1041 (2d Cir. 1984)).

On April 22, 2011, plaintiff filed the
complaint in this action. On August 16,
2011, the Commissioner filed his answer to
plaintiff’s complaint. The Commissioner
filed a motion for judgment on the pleadings
on November 15, 2011. Plaintiff filed his
opposition and cross-motion for judgment
on the pleadings on February 21, 2012.4 The
Commissioner filed a reply in further
support of the motion for judgment on the
pleadings and in opposition to plaintiff’s
cross-motion on March 28, 2012. The
plaintiff filed a reply memorandum in
support of the cross-motion for judgment on
the pleadings on April 16, 2012. The Court
has fully considered the submissions of the
parties.

In order to obtain a remand based on
additional evidence, a plaintiff must present
new evidence that: “(1) is ‘new’ and not
merely cumulative of what is already in the
record[;]” (2) is material, in that it is
“relevant to the claimant’s condition during
the time period for which benefits were
denied,” probative, and presents a
reasonable possibility that the additional
evidence would have resulted in a different
determination by the Commissioner; and (3)
was not presented earlier due to good cause.
Lisa v. Sec’y of the Dep’t of Health &
Human Servs., 940 F.2d 40, 43 (2d Cir.
1991).

II. STANDARD OF REVIEW
A district court may only set aside a
determination by an ALJ that is “based upon
legal error” or “not supported by substantial
evidence.” Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998) (citing Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982)). The
Supreme Court has defined “substantial
evidence” in Social Security cases as “more
than a mere scintilla” and that which “a
reasonable mind might accept as adequate to
support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); Quinones v. Chater, 117 F.3d
29, 33 (2d Cir. 1997) (defining substantial
evidence as “such relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion” (internal quotations
and citations omitted)). Furthermore, “it is
up to the agency, and not th[e] court, to

III. DISCUSSION
A. Legal Standard for Disability
Determinations
A claimant is entitled to disability
benefits under the SSA if the claimant is
unable “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

4

Petitioner commenced this action pro se. On
January 9, 2012, Christopher J. Bowes, Esq., filed a
Notice of Appearance on behalf of plaintiff and
requested an extension of time to file a cross-motion,
which was subsequently granted by the Court.
9

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (citing Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996)). The claimant bears the
burden of proof with regard to the first four
steps; the Commissioner bears the burden of
proving the last step. Brown, 174 F.3d at 62.

for a continuous period of not less than
twelve
months.”
42
U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the SSA unless it is “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 . . . .” 42 U.S.C.
§ 1382c(a)(3)(B).

The Commissioner “must consider” the
following in determining a claimant’s
entitlement to benefits: “(1) the objective
medical facts; (2) diagnoses or medical
opinions based on such facts; (3) subjective
evidence of pain or disability testified to by
the claimant or others; and (4) the claimant’s
educational background, age, and work
experience.” Id. (citing Mongeur v. Heckler,
722 F.2d 1033, 1037 (2d Cir. 1983) (per
curiam)).

The Commissioner has promulgated
regulations
establishing
a
five-step
procedure for evaluating disability claims.
See 20 C.F.R §§ 404.1520, 416.920. The
Second Circuit has summarized this
procedure as follows:

In the event the claimant is found to be
disabled, the Commissioner must also
determine if the disability continues through
the date of decision. The Commissioner has
promulgated regulations establishing an
eight-step procedure for evaluating whether
the disability continues or ends.

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.

First, the Commissioner determines
whether the claimant is engaged in
substantial gainful activity. 20 C.F.R.
§ 404.1594(f)(1).
If
so,
the
Commissioner will find that the
disability ended. Id. If not, the
Commissioner’s review proceeds.
Second,
the
Commissioner
determines whether the claimant’s
impairment or combination of
impairments meets or equals the
severity of an impairment listed in
Appendix
1.
20
C.F.R.
§ 404.1594(f)(2).
If
so,
the
claimant’s disability is said to
continue.
Id.
If
not,
the
Commissioner’s review proceeds.

10

shows that all current impairments
do not significantly limit the
claimant’s physical or mental
abilities to perform basic work
activities, the impairments are not
severe and the claimant will no
longer be considered disabled. Id.

Third, the Commissioner determines
whether there has been medical
improvement.
20
C.F.R.
§ 404.1594(f)(3). If there is no
decrease in medical severity, there is
no medical improvement. Upon
finding
medical
improvement,
measured by a decrease in medical
severity, the Commissioner’s review
continues.

Seventh,
if
the
claimant’s
impairments
are
severe,
the
Commissioner will assess the
claimant’s
residual
functional
capacity based upon all current
impairments and determine whether
claimant is able to perform past
work. 20 C.F.R. § 404.1594(f)(7). If
capable of doing past work, the
claimant is no longer disabled. Id.

Fourth,
the
Commissioner
determines whether the medical
improvement found in step three is
related to the claimant’s ability to do
work in accordance with 20 C.F.R.
§§ 404.1594(b)(1)-(4).
Medical
improvement is related to the ability
to work if it results in an increase in
the claimant's ability to perform
basic work activities. 20 C.F.R.
§ 404.1594(b)(3).
If
medical
improvement is unrelated to the
claimant's ability to work, the
Commissioner proceeds to step five.
Id. If the medical improvement is
related to the claimant’s ability to
work the Commissioner proceeds to
step six. Id.

Finally, if the claimant can no longer
perform
past
work,
the
Commissioner
must
determine
whether the claimant is capable of
other work given her residual
functional capacity assessment and
her age, education, and previous
work
experience.
20
C.F.R.
§ 404.1594(f)(8). If the claimant is
capable, her disability will have
ended. Id. If the claimant is
incapable, her disability is found to
continue. Id.

Fifth, the Commissioner considers
whether the exceptions to medical
improvement listed in 20 C.F.R.
§§ 404.1594(d) and (e) apply to the
claimant’s medical improvement. 20
C.F.R. § 404.1594(f)(5). If none
apply, the claimant’s disability
continues. Id.

Wilson v. Astrue, No. 09-CV-732S, 2010
WL 2854447, at *2-3 (W.D.N.Y. July 19,
2010) (footnotes omitted).
B. Treating Physician Rule
Plaintiff asserts that the ALJ failed to
fully consider the opinion of the treating
physician, Dr. Stuart Springer. Specifically,
plaintiff contends:

Sixth, if medical improvement is
related to the claimant’s ability to do
work or one of the aforementioned
exceptions
applies,
the
Commissioner
will
determine
whether the claimant’s impairments
are
severe.
20
C.F.R.
§ 404.1594(f)(6). When the evidence

[T]he ALJ completely failed to
acknowledge that Mr. Hanes’
treating orthopedic surgeon, Dr.
11

1. Legal Standard

Stuart Springer, had repeatedly
opined that Mr. Hanes was limited to
sedentary work as a result of a
traumatic bimalleolar fracture of the
right ankle. Tr. 271 (August 2002 –
“Sedentary only”), 301 (July 2003 –
“sedentary at this time”) and 306
(January 2006 – “sedentary ok”); see
Pl. Br. at 18. Additionally, Dr.
Springer further stated in November
2008 that Mr. Hanes had a “severely
restricted” [sic] Mr. Hanes’ activities
of daily living that the condition
would only deteriorate over time.
Tr. 344. Thus, plaintiff submits, the
record contains specific medical
opinion, supported with adequate
rationale, to restrict Mr. Hanes from
performing light work. See Pl.’s Br.
at 21. Moreover, with a restriction to
sedentary work, a finding of
“disabled” would be applicable upon
the age of attainment of age 50 in
October 2007. Id.

The Commissioner must give special
evidentiary weight to the opinion of the
treating physician. See Clark, 143 F.3d at
118. The “treating physical rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
the medical findings and not inconsistent
with other substantial record evidence.”
Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.
2000); see Rosa v. Callahan, 168 F.3d 72,
78-79 (2d Cir. 1999); Clark, 143 F.3d at
118; Schisler v. Sullivan, 3 F.3d 563, 567
(2d Cir. 1993). The rule, as set forth in the
regulations, provide:
Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be
the medical professionals most able
to provide a detailed, longitudinal
picture
of
your
medical
impairment(s) and may bring a
unique perspective to the medical
evidence that cannot be obtained
from the objective medical findings
alone or from reports of individual
examinations, such as consultative
examinations
or
brief
hospitalizations. If we find that a
treating source’s opinion on the
issue(s) of the nature and severity of
your impairment(s) is well-supported
by medically acceptable clinical and
laboratory diagnostic techniques and
is not inconsistent with the other
substantial evidence in your case
record, we will give it controlling
weight.

(Pl.’s Reply Br. at 1.) Plaintiff further
contends that the ALJ overlooked
substantial treatment history by the treating
physician. (See Pl.’s Brief, at 20 (“ALJ
Raynor could not have properly followed the
treating physician regulations where his
review of the record mischaracterized and
omitted from consideration such a
substantial treatment history.”)).
As set forth below, the Court concludes
that the ALJ, in rejecting the opinion of the
treating physician, overlooked certain
medical information and failed to give
sufficient reasons for not giving controlling
weight to the opinion of plaintiff’s treating
physician, Dr. Springer. Thus, the case must
be remanded for such a determination.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
If the opinion of the treating physician as
to the nature and severity of the impairment
is not given controlling weight, the
12

The claimant had no medical
treatment until 2004, a lapse of three
years, except for when he saw Dr.
Springer for his medical board
application, which was successful.
(Exhibit 14F). Thereafter, the next
medical attention was in November
2008, a lapse of six years. Less
weight is given to Dr. Springer’s
evaluations, since he did not consider
the claimant’s activities of daily
living, his fishing, use of a computer,
his jobs and his ability to travel
abroad. No EMG was had. In 2002,
the claimant worked as a security
officer and earned $24, 661. In 2003,
he earned $7,078. In 2004, he earned
$782, in 2005 $3,567 and in 2006 he
earned $1,215. The claimant’s
earnings after leaving the police
department are reflective of his
ability to do substantial gainful
activity. In fact, the claimant’s
ability to work over the many years
at the same security officer job
indicates he could do full-time
substantial gainful activity. Greater
weight is given to the consultative
examiner report, as it is wellsupported by the diagnostic testing
and the claimant’s activities of daily
living.

Commissioner must apply various factors to
decide how much weight to give the
opinion. See Shaw, 221 F.3d at 134; Clark,
143 F.3d at 118. These factors include: (i)
the frequency of examination and length,
nature, and extent of the treatment
relationship, (ii) the evidence in support of
the opinion, (iii) the opinion’s consistency
with the record as a whole; (iv) whether the
opinion is from a specialist; and (v) other
relevant factors. see Clark, 143 F.3d at 118
(citing 20 C.F.R §§ 404.1527(d)(2),
416.927(d)(2)). When the Commissioner
chooses not to give the treating physician’s
opinion controlling weight, he must “give
good reasons in his notice of determination
or decision for the weight [he] gives [the
claimant’s] treating source’s opinion. Clark,
143 F.3d at 118 (quoting 20 C.F.R
§§ 404.1527(d)(2), 416.927(d)(2)); see also,
e.g., Perez v. Astrue No. 07-cv-958 (DLI),
2009 WL 2496585, at *8 (E.D.N.Y Aug. 14,
2009) (“Even if [the treating physician’s]
opinions do not merit controlling weight, the
ALJ must explain what weight she gave
those opinions and must articulate good
reasons for not crediting the opinions of a
claimant’s treating physician.”); Santiago v.
Barnhart, 441 F. Supp. 2d 620, 627
(S.D.N.Y 2006) (“Even if the treating
physician’s opinion is contradicted by
substantial evidence and is thus not
controlling, it is still entitled to significant
weight because the treating source is
inherently more familiar with a claimant’s
medical condition than are other sources.”).
A failure by the Commissioner to provide
“good reasons” for not crediting the opinion
of a treating physician is a ground for
remand. See Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999).

(AR 21-22.)
As a threshold matter, there is an error in
the ALJ’s recitation of the facts, and thus,
remand is appropriate. See Mieczkowski v.
Astrue, No. 07-CV-0141 (JFB)(SMG), 2008
WL 899344, at *11 (E.D.N.Y. Mar. 31,
2008) (finding that factual inaccuracies in an
ALJ’s decision can be a contributing cause
for remand); see also Renaudette v. Astrue,
482 F. Supp. 2d 121, 132 (D. Mass. 2007)
(“The ALJ’s decision is riddled with factual
errors and misstatements. The cumulative
effect of these mistakes undermines any

2. Application
With respect to treating physician Dr.
Springer, the ALJ wrote the following:
13

Defendant argues that the factual
inaccuracies in the ALJ’s decision are
harmless error. However, these inaccuracies
suggest a potential misunderstanding of the
record, and should be resolved upon remand.
In other words, the Court is unable to
conclude that the overlooked information
would not materially impact the ALJ’s
decision and, if in fact the ALJ reaches the
same conclusion, the ALJ will need to
address this information in applying the
requisite factors to determine the weight that
should be accorded to opinion of the treating
physician. See, e.g., Carnevale v. Gardner,
393 F.2d 889, 891 (2d Cir. 1968) (“Thus it is
clear that in summarizing and sifting the
evidence in this case, the Hearing Examiner
totally ignored a major piece of evidence
which might well have influenced his
decision. We cannot fulfill the duty
entrusted to us, that of determining whether
the Hearing Examiner’s decision is in
accordance with the Act, . . . if we cannot be
sure that he considered some of the more
important evidence presented, for Congress
directed that in the first instance the Hearing
Examiner is to make the findings of fact and
decide the rights of individuals applying for
benefits. . . .” (citations omitted)); Armstead
v. Chater, 892 F. Supp. 69, 76 (E.D.N.Y.
1995)(“[T]he Court is left to speculate
whether all the circumstances of the
petitioner’s claim were thoroughly analyzed,
or instead were overlooked. . . .
Consequently, the Court is unable to find
that the Commissioner’s determination is
supported by substantial evidence, and in
this posture, a remand of this case to the
Commissioner is appropriate.” (citations
omitted)).

confidence [] that the evidence in the
plaintiff’s case has been fully and fairly
considered . . .”). Specifically, the ALJ
claims that plaintiff had no medical attention
from 2001 to 2004, and thereafter no
medical attention until 2008. (AR 21.)
However, the administrative record indicates
that plaintiff received medical attention on a
number of occasions during those time
spans. Dr. Springer completed a physician’s
statement concerning plaintiff on August 12,
2002, and noted that he examined plaintiff
on August 8, 2002. (AR 270-71.) A separate
attending physician’s statement completed
by Dr. Springer indicates that plaintiff was
treated or evaluated on July 24, 2003. (AR
301.) Plaintiff saw Dr. Springer on June 30,
2005 and underwent an MRI. (AR 273-74.)
Dr. Springer met with plaintiff on June 27,
2005. (AR 289.) On July 14, 2005, Dr.
Springer completed another attending
physician’s statement and offered plaintiff a
diagnosis and treatment program. (AR 298.)
Dr. Springer ordered an MRI of plaintiff’s
left shoulder on or about September 16,
2005. (AR 276.) On December 5, 2005,
plaintiff was cleared for anesthesia and
surgery. (AR 233-35.) Four days later, on
December 9, 2005, Dr. Springer issued a
pre-operative
report
and
performed
arthroscopic surgery on plaintiff’s left
shoulder. (AR 232, 235-37.) On January 4,
2006, Dr. Springer noted that plaintiff was
doing quite well following the surgery. (AR
293.)
Thus, plaintiff received medical
attention between 2001 and 2004, and from
2004 to 2008, which the ALJ appears to
have overlooked. Accordingly, the factual
inaccuracies in the ALJ’s decision
“undermine[] any confidence [] that the
evidence in the plaintiff’s case has been
fully and fairly considered,” and thus,
remand is appropriate. See Renaudette, 482
F. Supp. 2d at 132.

Moreover, it is also unclear to the Court,
without further analysis on the part of the
ALJ, as to whether the ALJ fully considered
Dr. Springer’s records in concluding that Dr.
Springer completely neglected to consider
14

decline to give controlling weight to Dr.
Springer’s
Opinion.
Moreover,
in
determining that the consultative examiner
report would be given “greater weight” than
Dr. Springer’s opinion, there is no indication
that the ALJ considered: (i) the frequency of
examination and length, nature, and extent of
the treatment relationship, (ii) the evidence in
support of the opinion, (iii) the opinion’s
consistency with the record as a whole; (iv)
whether the opinion is from a specialist; and
(v) other relevant factors. see Clark, 143 F.3d
at 118 (citing 20 C.F.R §§ 404.1527(d)(2),
416.927(d)(2)).

plaintiff’s activities of daily living. Dr.
Springer, in his letter to plaintiff’s counsel,
stated that plaintiff’s injuries “have severely
restricted his ability to perform activities of
daily living . . .” (AR 344.) However, Dr.
Springer, in three separate statements
between 2001 and 2005, noted that he
encouraged plaintiff to undergo a home
exercise program. (AR 225, 270, 298.) In a
May 2006 attending physician’s statement,
Dr. Springer once again noted that plaintiff’s
treatment was a home exercise program.
(AR 305.) When asked if, to the best of his
knowledge, plaintiff was compliant with the
home exercise program, Dr. Springer
checked “Yes.” (AR 305.) Plaintiff testified
before the ALJ that he tried to incorporate
his physical therapy into his housework.
(AR 39.) Specifically, plaintiff stated that he
would “incorporate some of those
[exercises] into his daily activity.” (AR 38.)
Plaintiff, when asked if he performed any
housework, stated that he vacuumed to
stretch his arm and performed smaller
chores that he liked to call “physical
therapy.” (AR 39.) Thus, plaintiff’s
testimony, and the administrative record,
provides at least a reasonable inference that
Dr. Springer, who recommended the home
exercise treatment, was aware of plaintiff’s
daily activities at home and, therefore, may
have considered plaintiff’s daily activities
when giving his opinions.

Thus, the court will remand the case. See,
e.g., Mieczkowski, 2008 WL 899344, at * 11;
see also Risitano v. Comm’r of Soc. Sec., No.
06-CV-2206 (FB), 2007 U.S. Dist. LEXIS
58276, at *10, 2007 WL 2319793 (E.D.N.Y.
Aug. 9, 2007) (remanding case and directing
the ALJ to “identify the evidence [the ALJ]
did decide to rely on and thoroughly
explain . . . the reasons for his decision” if the
ALJ did not intend to rely on the opinions of
plaintiff’s treating physicians); Torregrosa v.
Barnhart, No. CV-03-5275, 2004 U.S. Dist.
LEXIS 16988 (FB), at *18, 2004 WL
1905371 (E.D.N.Y. Aug. 27, 2004)
(remanding because “(1) there is a reasonable
basis to doubt whether the ALJ applied the
correct legal standard in weighing the
opinions of [the treating physicians], and (2)
the ALJ failed to give good reasons for the
weight, or lack thereof, given to those
opinions”). Accordingly, upon remand, the
ALJ must consider all the evidence and, if he
continues to reject the opinion of Dr.
Springer, the ALJ must clarify his reasons for
declining to afford controlling weight to
plaintiff’s treating physician and consider the
factors discussed supra.5

As stated supra, the specific reasons
given by the ALJ for not affording Dr.
Springer’s opinion controlling weight were:
(1) the lapse in treatment of the plaintiff, and
(2) because “[h]e did not consider the
claimant’s activities of daily living, his
fishing, use of a computer, his jobs and his
ability to travel abroad.”
(AR 21-22.)
However, because it appears that the ALJ
overlooked certain information relating to
those factual predicates, the record does not
provide a sufficient basis for the ALJ to

5

Plaintiff also contends that the ALJ failed to
properly assess plaintiff’s credibility. The ALJ has an
absolute duty and obligation to consider not only the
plaintiff’s testimony, but also the record as a whole.
15

III. CONCLUSION
The plaintiff is represented by Christopher
James Bowes, Office of Christopher James
Bowes, 54 Cobblestone Drive, Shoreham,
NY 11786. The attorney for defendant is
Vincent Lipari, United States Attorneys’
Office, Eastern District of New York, 610
Federal Plaza, Central Islip, New York,
1172.

For the reasons stated above, defendant’s
motion for judgment on the pleadings,
pursuant to Rule 12(c) of the Federal Rules
of Civil Procedure, is denied. Plaintiff’s
cross-motion for judgment on the pleadings
is granted to the extent it seeks a remand for
further proceedings. Accordingly, this case
is remanded for further proceedings
consistent with this Memorandum and
Order. The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.

_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 14, 2012
Central Islip, New York
***
See Yancey, 145 F.3d at 111; Jones, 949 F.2d at 59;
Kendall v. Apfel, 15 F. Supp. 2d 262, 267 (E.D.N.Y.
1998); Rosado v. Shalala, 868 F. Supp. 471, 473
(E.D.N.Y. 1994). When the Court “concludes that the
ALJ erred in applying the treating physician rule, the
Court need not decide at this time whether the ALJ
erred in assessing plaintiff’s credibility.” Balodis v.
Leavitt, 704 F. Supp. 2d 255, 267 (E.D.N.Y. 2010).
The Court notes that the ALJ in this case found that
the claimant’s statements concerning the intensity,
persistence and limiting effects of plaintiff’s
symptoms to be not credible. The Court recognizes
that “[i]t is the function of the Secretary, not the
reviewing courts, to resolve evidentiary conflicts and
to appraise the credibility of witnesses, including the
claimant.” Aponte v Sec’y Dep’t of Health & Human
Servs., 728 F.2d 588, 591 (2d Cir. 1984) (internal
citations and quotations omitted). However, to the
extent that the ALJ, on remand, re-evaluates the
evidence in addressing the treating physician rule, in
accordance with this Memorandum and Order, the
ALJ should also consider whether that re-evaluation
alters his assessment of plaintiff’s credibility in light
of the evidence as a whole.
16