Torres v. Commissioner of Social Security
Filing
24
ORDER denying 15 Motion for Judgment on the Pleadings; granting in part and denying in part 19 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plain tiff's cross-motion for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Ordered by Judge Joseph F. Bianco on 1/9/2014. (Gibaldi, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-330 (JFB)
_____________________
BARBARA A. TORRES,
Plaintiff,
VERSUS
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
January 9, 2014
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Barbara A. Torres (“plaintiff”
or “Torres”) brings this action pursuant to
42 U.S.C. § 405(g) of the Social Security
Act (“SSA”), challenging the final decision
of the Commissioner of Social Security
(“defendant” or “Commissioner”) denying
plaintiff’s
application
for
disability
insurance benefits and supplemental security
income. An Administrative Law Judge
(“ALJ”) found that plaintiff had the residual
functional capacity to perform sedentary
work of a simple and unskilled nature, that
plaintiff could perform a significant number
of jobs in the national economy, and,
therefore, that plaintiff was not disabled.
The Appeals Council denied plaintiff’s
request for review.
The Commissioner now moves for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
Plaintiff opposes the Commissioner’s
motion and cross-moves for judgment on the
pleadings, alleging that the ALJ erred by: (1)
failing to accord the proper weight to the
opinion of plaintiff’s treating physician, and,
relatedly, failing to develop an adequate
record before assessing the weight of that
opinion; (2) applying the incorrect legal
standard
in
determining
plaintiff’s
credibility; (3) failing to employ a
vocational expert to determine whether
plaintiff could perform work that is available
in the national economy; and (4) failing to
give adequate consideration to plaintiff’s
obesity.
For the reasons set forth below, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted.
Accordingly, the case is remanded to the
ALJ for further proceedings consistent with
this Memorandum and Order. Remand is
warranted because the ALJ failed to explain
the weight he assigned to the opinion of
plaintiff’s treating physician, Dr. Hussain.1
In particular, it appears that the ALJ gave no
weight to the portion of the treating
physician’s opinion that concluded that
plaintiff was only capable of working twenty
hours per week. However, the only explicit
reason given for rejecting that portion of the
opinion was that, according to the ALJ, Dr.
Hussain pointed to “no evidence” with
respect to that opinion. As a threshold
matter, in apparently rejecting that opinion,
the ALJ never obtained the treatment
records from Dr. Hussain to compare his
opinions against the underlying evidence to
determine whether there was evidence
supporting it. In any event, Dr. Hussain
based his opinions as a whole on the MRI
imaging of plaintiff’s lumbar and cervical
spine, as well as examination findings that
included positive straight leg raising tests.
The ALJ did not specifically address such
evidence in rejecting a critical portion of Dr.
Hussain’s opinion. Moreover, the ALJ did
not explicitly apply and weigh the various
factors that must be considered in
determining how much weight to give an
opinion of a treating physician including,
inter alia, (i) the frequency of examination
and the length, nature and extent of the
treatment relationship; (ii) the evidence in
support of the treating physician’s opinion;
(iii) the consistency of the opinion with the
record as a whole; and (iv) whether the
opinion is from a specialist. Thus, although
the ALJ cited other medical evidence which
supported his position, he did not apply all
of the above-referenced factors or
specifically explain how that other evidence
undermines the treating physician’s opinion
regarding plaintiff’s inability to work more
than twenty hours per week. Accordingly, a
remand on that issue is warranted.
I. BACKGROUND
A. Factual Background
The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation of the facts is
contained in the parties’ submissions to the
Court and is not repeated herein.
1. Plaintiff’s Work History
Plaintiff was born in 1969 (AR at 41),
and has a high school education (id. at 213).
She worked as a certified nursing assistant
for approximately fifteen years, from 1994
to September 18, 2009. (Id. at 44–46, 207–
08.) During that time period, she also
performed part-time work as a secretary,
telemarketer, and tax preparer. (Id. at 44–
45.)
2. Plaintiff’s Medical History
Plaintiff’s medical records show that she
is an obese woman who suffers a variety of
physical and mental maladies, including
neck and back pain, a ganglion cyst on her
left foot, arthritis, gastroesophageal reflux
disease (GERD), asthma, sleep apnea,
migraine
headaches,
anxiety,
and
depression.
Plaintiff claims that her disabling
condition began on September 18, 2009. (Id.
at 189, 193.) However, she started
experiencing many of the above-mentioned
medical issues before that date. For instance,
plaintiff’s medical records show that she has
been treated for gastrointestinal issues
(including GERD) and obesity since 2005.
(See id. at 429–67.) In March 2007, plaintiff
was also diagnosed with a heel spur on her
1
Because the Court determines that this case should
be remanded for the reasons discussed herein, the
Court need not address plaintiff’s argument that the
ALJ should have used a vocational expert. Branca v.
Comm’r of Soc. Sec., No. 12-CV-643 (JFB), 2013
WL 5274310, at *1 n.1 (E.D.N.Y. Sept. 18, 2013).
2
left foot, for which she was given a left heel
injection. (Id. at 344–45.)
medial meniscus tear in the left knee. (Id. at
520–30.)
As for plaintiff’s back pain, the record
shows that plaintiff first sought medical
treatment for lower back pain on April 18,
2007. (Id. at 338.) She reported that her job
required heavy lifting, and that she had to
leave work early due to lower back pain.
She was experiencing muscle spasms, but
she could bend at the waist, and her
neurological exam was normal. (Id.) She
was diagnosed with low back pain, acute
strain, and obesity, and prescribed physical
therapy and medication. (Id. at 338–40.) Dr.
Amanda Goins wrote a note to plaintiff’s
employer, stating that plaintiff should not
lift more than twenty pounds for the
following two weeks. (Id. at 340.) A few
weeks later, on May 3, 2007, plaintiff again
sought medical care for back pain. (Id. at
335–36.) Examination showed tenderness
and straight leg raising positive at sixty
degrees, and an x-ray of her lower spine
revealed no acute findings. (Id.) Again,
plaintiff was prescribed medication and
referred to physical therapy. (Id. at 337.)
Plaintiff then visited Dr. James O’Leary
(“Dr. O’Leary”), an orthopedic surgeon, for
bilateral knee pain on May 13, 2008. (Id. at
371.) Dr. O’Leary diagnosed bilateral knee
pain, a suspected medial meniscal tear in her
left knee, and obesity, and he recommended
arthroscopic meniscal surgery. (Id.) Dr.
O’Leary performed the surgery on May 28,
2008. (Id. at 381–82.) His notes indicate that
surgery was difficult because plaintiff’s
body mass index was approximately 48.5.
(Id. at 382.)
On September 16, 2008, plaintiff
returned to Dr. O’Leary, reporting that her
knees were “doing very well” but that her
back and neck were “killing her.” (Id. at
375.) Dr. O’Leary examined plaintiff and
observed “some tenderness over the cervical
and lumbar spine with limited [range of
motion].” (Id.) He recommended that
plaintiff continue her exercise and weight
loss program, and that she continue to take
anti-inflammatory medicine. (Id.) Plaintiff
returned to Dr. O’Leary one month later for
sustained neck and back pain. (Id. at 374.)
She told Dr. O’Leary that she had injured
her neck and back two months earlier, after
being assaulted at work. (Id.) Dr. O’Leary
again detected a limited range of motion in
the cervical and lumbar spine. (Id.). He
noted that x-rays of her back and neck
showed “well-preserved disc spaces with
normal alignment and no fracture.” (Id.) He
diagnosed cervical spine strain, lower back
strain, and obesity, and advised her to stay
home from work. (Id.) On November 18,
2008, plaintiff saw Dr. O’Leary again,
complaining that she was “hurting all over”
and could not do household chores. (Id. at
378.) Dr. O’Leary reviewed an MRI of the
cervical and lumbar spine, which showed
“mild disc bulges at C5-6 and C6-7 without
significant spinal stenosis,” “a disc bulge at
On March 11, 2008, plaintiff visited the
Palmetto Health Richland Family Medicine
Center (“Palmetto”) in South Carolina,
because she had been experiencing left knee
pain for the past two weeks. (Id. at 535–38.)
Dr. Elizabeth Baxley (“Dr. Baxley”)
examined plaintiff, observed that plaintiff
was limping, and prescribed medication for
the knee pain. (Id.) One month later,
plaintiff slipped and hyperextended her left
knee. (Id. at 531.) She saw Dr. Baxley on
April 15, 2008, and Dr. Baxley observed
that plaintiff was wheelchair bound and in
pain. (Id.) Dr. Baxley diagnosed a left knee
sprain and prescribed medication. (Id. at
532.) The following month, plaintiff
returned to Palmetto several times for her
left knee, and Dr. Baxley diagnosed a
3
L4-5 which [was] apparently a contained
herniation on the right,” and “a disc bulge at
L5-S1.” (Id.) Dr. O’Leary diagnosed disc
bulges at L4-5 and L5-S1, mild cervical
degenerative disc disease, and obesity. (Id.)
foot pain. (Id. at 481.) Plaintiff explained
that, after having been treated for left foot
pain in September 2009, she had worn a cast
shoe, and the pain “completely improved.”
(Id. at 485.) Dr. Susan Yocum (“Dr.
Yocum”) examined plaintiff and noted a one
centimeter by one-half centimeter mass on
plaintiff’s left foot, which was consistent
with a ganglion cyst. (Id.) Otherwise,
plaintiff had full range of motion in her
ankle and toes. (Id.) An x-ray of plaintiff’s
left foot showed mild soft tissue swelling,
normal alignment of the osseous structures,
no fractures, mild joint space loss in the
interphalangeal joints, and a small plantar
spur. (Id. at 486.) Dr. Yocum diagnosed
plaintiff with a ganglion cyst and prescribed
Naprosyn and Percocet. (Id. at 487.)
Plaintiff saw Dr. Mark Wood (“Dr. Wood”),
an orthopedic surgeon, for her foot pain
several days later, on November 23, 2009.
(Id. at 579.) Dr. Wood noted that plaintiff
was obese, had pinpoint pain over the
proximal aspect of her fifth metatarsal, and
had a small nodular structure that was
palpable and tender. (Id.) X-rays of the left
foot showed no obvious calcific density or
masses and no bony changes. (Id.) Dr. Wood
diagnosed left foot pain and a possible
ganglion cyst. (Id.)
On December 17, 2008, Dr. M. David
Redmond administered electromyography
(“EMG”) testing after plaintiff reported
numbness and tingling in her right hand. (Id.
at 379.) EMG testing showed mild right
carpal tunnel syndrome. (Id. at 380.)
Plaintiff saw Dr. Brett Gunter (“Dr.
Gunter”), a neurosurgeon, for her neck and
lower back pain on January 5, 2009. (Id. at
425–26.) After reviewing MRIs of her spine,
Dr. Gunter noted that he could not explain
the extent of plaintiff’s symptoms because
her MRIs did not show any nerve root
compression. (Id. at 426.) On March 13,
2009, Dr. Gunter had a physical therapist
administer
a
functional
capacity
examination. (Id. at 427.) The physical
therapist reported to Dr. Gunter that
plaintiff’s “cervical and lumbar range of
motion are limited,” and opined that her
lifting abilities qualified her for “light to
limited medium work.” (Id.) Five days later,
Dr. Gunter examined plaintiff and concluded
that she had “reached Maximum medical
improvement,” that he had “no reason,
physically to restrict or limit her job
activities,” and that she was “capable of
medium duty work based on the U.S. Dept.
of Labor guidelines.” (Id. at 405.)
Plaintiff also mentioned her lower back
pain to Dr. Wood, and Dr. Wood discussed
physical therapy for her back. (Id.) Plaintiff
responded that she was not interested in
physical therapy at that time. (Id.)
On September 24, 2009, plaintiff sought
medical attention for pain in her left foot.
(Id. at 474.) Dr. Linwood Watson ordered an
x-ray of plaintiff’s left foot, which showed
no fracture or dislocation, normal osseous
mineralization, no significant soft tissue
abnormality, and a large calcaneal spur. (Id.)
On November 19, 2009, plaintiff visited
WakeMed Emergency Services in Raleigh,
North Carolina, again complaining of left
On February 9, 2010, after plaintiff
applied for disability insurance benefits and
supplemental security income, Dr. Robert
Gardner
(“Dr.
Gardner”)
reviewed
plaintiff’s medical records and assessed
plaintiff’s residual functional capacity. (Id.
at 107.) In Dr. Gardner’s opinion, plaintiff
was capable of lifting twenty pounds
occasionally and ten pounds frequently,
could stand and walk for about six hours in
4
an eight-hour workday, and could sit for
about six hours in an eight-hour workday.
(Id.) Plaintiff’s ganglion cyst and left knee
arthroscopy limited her ability to push or
pull with her left foot and leg. (Id.) “[M]ild
disc bulges” in her cervical and lumbar
spine occasionally limited her ability to bend
at the waist. (Id. at 108.) Dr. Henry Perkins
(“Dr.
Perkins”),
a
state
agency
psychological consultant, also reviewed
plaintiff’s medical records and performed a
Psychiatric Review Technique. (Id. at 105–
06.) Dr. Perkins spoke to plaintiff and
learned that she had been taking Concerta
for anxiety, and that she felt it was helping
her. (Id. at 105.) Dr. Perkins opined that
plaintiff’s physical impairments were the
main cause of her functional limitations, and
that her allegations of anxiety were only
“partially credible.” (Id. at 106.)
(Id. at 593.) Dr. Watson opined that plaintiff
had “[m]ild cervical spondylosis.” (Id.)
Plaintiff returned to Dr. Battle for a followup appointment on March 15, 2010. (Id. at
586.) Plaintiff continued to suffer
musculoskeletal pain and paresthesia. (Id.)
Dr. Battle referred plaintiff to an orthopedic
specialist and scheduled her for a sleep
study. (Id.)
At the reference of Dr. Battle, plaintiff
saw Dr. Cary Idler (“Dr. Idler”), an
orthopedist, on April 15, 2010. (Id. at 620.)
Plaintiff complained of numbness and
tingling “going down into her arms and
hands as well as back and leg pain.” (Id.)
She explained that these symptoms had
gradually become worse over the preceding
four months. (Id.) She reported that she was
unable to lift most things, her hand would go
numb after writing for long periods of time,
and she could not walk outside from her
house to her mailbox without experiencing
back pain. (Id.) Dr. Idler observed that
plaintiff “was able to get up from a seated
position with a fair amount of difficulty,”
she had “some mild nerve tension sign on
the left,” normal reflexes in the bilateral
upper and lower extremities, and “5/5
strength in all muscle groups in her arms and
her legs.” (Id.) Dr. Idler concluded that
plaintiff
was
presenting
symptoms
“consistent with radicular symptoms in both
her arms and her legs,” but that she was not
showing any weakness. (Id. at 621.) Dr.
Idler ordered a lumbar and cervical MRI,
and prescribed physical therapy. (Id.)
Plaintiff then began treatment at the
REX Family Practice of Knightdale, North
Carolina, where she reported a history of
musculoskeletal pain, anxiety, GERD,
asthma, and sleep apnea to Dr. Jamila Battle
(“Dr. Battle”). (Id. at 588.) An examination
revealed a positive Spurling’s test and a
ganglion cyst on plaintiff’s left foot. (Id. at
589.) Dr. Battle also ordered x-rays of
plaintiff’s back. Dr. Jerry Watson (“Dr.
Watson”) examined the x-ray of plaintiff’s
lumbar spine and observed that plaintiff’s
vertebral body heights were normal, there
was minimal disc space narrowing at L4-5,
minimal endplate overgrowth at several
levels, no fracture, no spondylolysis, and no
spondylolisthesis. (Id. at 592.) Dr. Watson
concluded that there were “[m]inimal
degenerative changes” in plaintiff’s lumbar
spine. (Id.) As for plaintiff’s cervical spine,
Dr. Watson found loss of the usual cervical
lordosis, mild disc space narrowing with
endplate overgrowth at C5-6 and C6-7, mild
foraminal stenosis on the right at C6-7 and
on the left at C5-6, normal vertebral body
heights, and normal bone mineralization.
Dr. Battle also referred plaintiff to Dr.
Christopher Schwarz (“Dr. Schwarz”), a
gastroenterologist, whom plaintiff visited on
March 23, 2010. (Id. at 550.) Plaintiff
complained of GERD, hiatal hernia,
abdominal pain prior to passing stool,
constipation, and diarrhea. (Id.) She
indicated that she was doing reasonably well
on Kapidex medication, but that she had run
5
out of it and had difficulty obtaining more.
(Id.) Dr. Schwarz diagnosed her with
GERD, which appeared to him to be well
controlled with Kapidex. (Id.)
prescribed
bilateral
C6
and
C7
transforaminal cortisone injections, which
were to occur after the lumber injections.
(Id.)
Plaintiff returned to Dr. Battle on May
24, 2010, complaining of neck and back
pain precipitated by a flare that occurred
during a yard sale, left shoulder and elbow
pain, GERD that was worsening on
Kapidex, an increasingly depressed mood,
and worsening anxiety. (Id. at 603–04.) Dr.
Battle ordered an x-ray of plaintiff’s left
elbow and left shoulder. (Id. at 615.) The xrays revealed mild spur formation involving
the proximal ulna, no fracture or bony
displacement, and no significant joint
effusion. (Id.) In the opinion of Dr. Donald
Detweiler (“Dr. Detweiler”), plaintiff
suffered from “[m]ild degenerative changes
at the left elbow without focal bony lesion or
fracture.” (Id.)
Dr. Battle examined plaintiff again on
June 24, 2010, as a follow-up to plaintiff’s
elbow and shoulder x-rays. (Id. at 631.) Dr.
Battle diagnosed plaintiff with chronic
lumbar degenerative disc disease, narcotic
addiction related to Vicodin, and depression.
(Id.) Plaintiff returned to see Dr. Battle on
July 7, 2010, complaining of fatigue,
narcolepsy, memory loss, numbness in her
arms, pain all over her body, and migraines.
(Id. at 626.) Dr. Battle diagnosed plaintiff
with chronic back pain, depression, and
obesity. (Id.)
On July 22, 2010, Dr. Jonathan Mayhew
(“Dr. Mayhew”) reviewed plaintiff’s
medical records and performed a Psychiatric
Review Technique. (Id. at 82.) Dr. Mayhew
concluded that plaintiff displayed a “normal
mood and affect, normal memory, [and]
normal judgment and insight.” (Id.) Like Dr.
Perkins, Dr. Mayhew opined that plaintiff’s
mental impairment was not severe. (Id.)
Plaintiff returned to Dr. Idler for a
follow-up examination on June 3, 2010. (Id.
at 619.) She was experiencing numbness and
pain in her arms, as well as lower back pain.
(Id.) That morning, she had been unable to
cut her breakfast sausage because she could
not hold her knife and fork. (Id.) Dr. Idler
noted that plaintiff had lumbar and cervical
MRIs dated May 5, 2010. The cervical MRI
revealed degenerative disc at C5-6 and C67. At C5-6, there was a “broad bulge,
moderate disc osteophyte complexes causing
a moderate amount of bilateral foraminal
stenosis. (Id.) At C6-7, there was moderate
foraminal stenosis. (Id.) The lumbar MRI
showed degenerative disc at L5-S1 and L45. At L5-S1, there was a broad bulge, a left
paracentral bulge causing mild lateral recess
stenosis, and moderate left foraminal
stenosis. (Id.) At L4-5, there was mild
degerative disc but no stenosis. (Id.)
On August 9, 2010, Dr. Alan Cohen
(“Dr. Cohen”) also reviewed plaintiff’s
medical records and performed a residual
functional capacity test. (Id. at 83.) In Dr.
Cohen’s
opinion,
plaintiff
could
occasionally lift twenty pounds, frequently
lift ten pounds, stand and walk
approximately six hours in an eight-hour
workday, and sit approximately six hours in
an eight-hour workday. (Id. at 84.)
Plaintiff’s ganglion cyst in her left foot, left
knee arthroscopy, and “changes on cervical
and lumbar spine imaging” limited her
ability to push and pull with her left lower
extremities. (Id.) Plaintiff also suffered
occasional postural limitations due to “mild
disc bulges” in her cervical spine and
lumbar spine. (Id.) Finally, Dr. Cohen
Dr. Idler prescribed a left L5-S1
transforaminal cortisone injection. He also
6
opined that plaintiff’s GERD, sleep apnea,
asthma, migraines, hernia, and periods of
incontinence
were
not
significant
limitations. (Id. at 85.)
degenerative joint disease, and osteoarthritis,
and that her prognosis was “good.” (Id. at
655–56.) Dr. Hussain also completed a
physical assessment for the Suffolk County
Department of Social Services, in which he
noted that plaintiff weighed 263 pounds
after gastric bypass surgery. (Id. at 661–62.)
Dr. Hussain opined that plaintiff was
capable of sitting without limitation, could
walk or stand for only one to two hours, and
could lift only ten pounds occasionally. (Id.
at 662.) He further opined that plaintiff
could work only twenty hours per week.
(Id.) Dr. Hussain noted that his diagnosis
was based on positive straight leg raises. (Id.
at 661.)
After plaintiff moved from North
Carolina to New York, she began seeing Dr.
Zeenat Hussain (“Dr. Hussain”) for back
and knee pain in March 2011. (Id. at 655.)
Dr. Hussain ordered MRIs of plaintiff’s
cervical and lumbar spine, which were
performed on March 29, 2011. (Id. at 652–
53.) The cervical spine MRI showed a right
parasagittal disc herniation that just touched
the spinal cord at the C5-6, mild disc
bulging at the C6-7, mild disc bulging at the
C7-T1, and mild degenerative changes. (Id.
at 652.) The lumbar MRI showed a right
foraminal disc herniation at the L2-3, mild
disc desiccation and bulging at L4-5, and
disc desiccation at L5-S1. (Id. at 653.)
On August 25, 2011, social worker
Patricia Belle (“Belle”) conducted a
psychiatric assessment of plaintiff. (Id. at
659–60.) Belle diagnosed plaintiff with
generalized anxiety disorder but was unable
to assess plaintiff’s functional capacity. (Id.)
Dr. Hussain completed a paratransit
eligibility form for plaintiff on June 22,
2011. (Id. at 270–72.) In that form, Dr.
Hussain wrote that plaintiff suffered the
following permanent conditions, which
prevented her from walking long distances
or standing for long periods of time: sciatica,
spinal stenosis, osteoarthritis, and bulging
and disintegrating discs in her back and
neck. (Id. at 271.) In addition, Dr. Hussain
noted that plaintiff suffered from arthritis,
asthma, anxiety, and depression. (Id. at 270–
71.) About one month later, on August 23,
2011, Dr. Hussain completed paperwork in
support of plaintiff’s handicapped parking
permit application. (Id. at 654.) He noted
that plaintiff suffered temporary back pain
and morbid obesity, conditions he expected
to last six months. (Id.)
After the ALJ’s September 13, 2011
decision, plaintiff provided the Appeals
Council with an additional functional
assessment performed by Dr. Fajal Faroqum
(“Dr. Faroqum”) on December 5, 2011. (Id.
at 663–64.) Dr. Faroqum treated plaintiff’s
asthma. (Id.) He opined that plaintiff was
limited to walking, standing, sitting, and
climbing stairs for less than one hour, and to
lifting ten pounds occasionally. (Id. at 664.)
Moreover, he opined that plaintiff could not
work at all. (Id.)
3. The Administrative Hearing
Plaintiff testified before the ALJ on
August 17, 2011. She explained that she had
“bulging, disintegrating, and herniated discs
in [her] back and in [her] neck” (id. at 47),
and that she is “constantly in pain” there (id.
at 53). In addition, she told the ALJ that she
experiences “numbing in [her] arms and in
[her] legs,” for which she takes medication.
Also on August 23, 2011, Dr. Hussain
completed a medical evaluation form, in
which he stated that he was treating plaintiff
monthly for back and knee pain, that she had
a history of hypertension, obesity,
7
(Id.) For example, plaintiff explained that on
one occasion, she was holding a cooking pan
when her right hand went numb, and she
dropped the pan. (Id. at 69.) On another
occasion, plaintiff could not manage to cut
breakfast sausage. (Id. at 69–70.) She
acknowledged, however, that a conduction
test revealed only mild carpal tunnel
syndrome. (Id. at 53). With respect to her
foot, plaintiff testified that the ganglion cyst
in her left foot causes pain, usually when she
is standing. (Id. at 68–69.)
before the ALJ at a hearing held on August
17, 2011. (Id. at 24.)
On September 13, 2011, the ALJ
determined that plaintiff was not disabled
under the SSA.2 (Id.) The Appeals Council
denied plaintiff’s request for review.
Plaintiff commenced this action on
February 17, 2013, appealing the ALJ’s
September 13, 2011 decision. The
Commissioner answered on May 21, 2013,
and filed the pending motion for judgment
on the pleadings on July 17, 2013. Plaintiff
also filed a motion for a judgment on the
pleadings on August 19, 2013. The
Commissioner replied on September 24,
2013, and plaintiff filed a reply on October
8, 2013. The Court has fully considered the
submissions of the parties.
Plaintiff also commented on her obesity,
which, according to her doctors, lies at the
root of many of her medical problems. (Id.
at 66.) At the time of the hearing, she
measured five feet one inch and 270 pounds
(id. at 67); at her heaviest, she weighed 315
pounds (id.). As a result of her obesity,
plaintiff does not wear socks or sneakers
because she cannot bend down. (Id. at 66.)
II. STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ “only where it is
based upon legal error or is 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 to mean “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) (internal citation and quotation marks
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Furthermore, “it is up to
the agency, and not [the] 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 the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
Finally, plaintiff testified that she
suffered from depression, anxiety and
trouble sleeping at night. (Id. at 59.) With
respect to her anxiety, plaintiff explained
that she suffers anxiety attacks two to three
times per day, during which she feels like
her heart is pounding out of her chest. (Id. at
65.) She also mentioned that she has a
history of migraines, high blood pressure,
and asthma. (Id. at 60–61.)
B. Procedural History
On November 18, 2009, plaintiff applied
for disability insurance benefits and
supplemental security income, alleging
disability since September 18, 2009. (Id. at
189–96.) Plaintiff’s application was denied
initially on February 16, 2010 (id. at 121–
25), and again on August 11, 2010 after
reconsideration (id. at 129–46). Thereafter,
on August 18, 2010, plaintiff requested a
hearing. (Id. at 128.) Represented by
counsel, plaintiff appeared and testified
The Court summarizes the ALJ’s decision in detail
infra.
2
8
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
citation and quotation marks omitted); see
also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) (“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.”).
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.
III. DISCUSSION
A. Legal Standard
A claimant is entitled to disability
benefits 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 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.”
Id.
§ 1382c(a)(3)(B).
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Brown, 174 F.3d at 62.
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. (quoting 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:
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
B. Analysis
Plaintiff argues that the ALJ’s decision
is not supported by substantial evidence and
is the result of legal error. As set forth
below, this Court concludes that this case
9
should be remanded to the Commissioner
because the ALJ erred by failing to explain
the weight he assigned to the opinion of
plaintiff’s treating physician, and by failing
to properly assess the factors for
determining what weight to give that
opinion.
concluded, however, that plaintiff’s sleep
apnea, carpal tunnel syndrome, and
hypertension were not severe. Substantial
evidence supports these findings, and
plaintiff does not challenge their correctness.
1. The ALJ’s Decision
If the claimant has a severe impairment,
the ALJ 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 ALJ will find the
claimant disabled without considering the
claimant’s age, education, or work
experience. 20 C.F.R. § 404.1520(d). In this
case, the ALJ found that plaintiff’s
impairments did not meet any of the listed
impairments in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1.
(AR at 27.) Substantial evidence supports
this finding, and plaintiff does not challenge
its correctness.
c. Listed Impairment
a. Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging
in substantial gainful activity. 20 C.F.R.
§ 404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical or mental activities,” id.
§ 404.1572(a), and gainful work activity is
work usually done for pay or profit, id.
§ 404.1572(b).
Individuals
who
are
employed are engaging in substantial gainful
activity. In this case, the ALJ determined
that plaintiff had not engaged in any
substantial gainful activity since the alleged
onset date of September 18, 2009. (AR at
26.) Substantial evidence supports this
finding, and plaintiff does not challenge its
correctness.
d. Residual Functional Capacity
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
the claimant’s residual functional capacity
“based on all the relevant medical and other
evidence in [the] case record.” 20 C.F.R.
§ 404.1520(e). The ALJ then determines at
step four whether, based on the claimant’s
residual functional capacity, the claimant
can perform her past relevant work. Id.
§ 404.1520(f). When the claimant can
perform her past relevant work, the ALJ will
find that she is not disabled. Id.
b. Severe Impairment
If the claimant is not employed, the ALJ
then determines whether the claimant has a
“severe impairment” that limits his capacity
to work. An impairment or combination of
impairments is “severe” if it significantly
limits an individual’s physical or mental
ability to perform basic work activities. 20
C.F.R. § 404.1520(c); see also Perez, 77
F.3d at 46. The ALJ in this case found that
plaintiff had the following severe
impairments: foot, leg, shoulder, neck, and
back pain resulting from degenerative
changes, a ganglion cyst, arthritis, GERD,
obesity, anxiety, depression, asthma, and
migraine headaches. (AR at 26.) The ALJ
In the instant case, the ALJ found that
plaintiff had the residual functional capacity
“to perform sedentary work . . . of a simple
and unskilled nature” (id. at 29), but that she
was “unable to perform any past relevant
work” (id. at 32). In reaching this
conclusion, the ALJ performed a lengthy
recitation of the medical evidence. The ALJ
10
noted that plaintiff’s neck and back pain
“are the impairments causing the most
limitation, along with her obesity.”
Specifically, the ALJ cited the medical
evidence showing “minimal disc space
narrowing, minimal endplate overgrowth,
mild spondylosis, a loss of cervical lordosis,
and mild disc bulging,” and observed that
her physicians have diagnosed “moderate
degenerative disc disease and straightening
of the cervical spine with some disc
herniation.” (Id. at 31.) Based on this
evidence, the ALJ concluded that plaintiff
maintains a sedentary residual functional
capacity.3 (Id.) In light of the evidence of
plaintiff’s anxiety and depression, and her
testimony that she does not perform well in
stressful situations, the ALJ further
determined that plaintiff was limited to
performing simple and unskilled work. (Id.)
As for the medical opinion evidence, the
ALJ accorded “significant weight” to the
conclusions of Dr. Detweiler and Dr.
Watson, who reviewed x-rays of plaintiff’s
shoulder, elbow, cervical spine, and lumbar
spine. (Id. at 32.) The ALJ gave only “some
weight,” however, to the opinion of Dr.
Hussain, “who opined that the claimant
could walk and stand for one to two hours,
had no limitations sitting, and could perform
at least part-time work for twenty hours per
week.” (Id.) Specifically, the ALJ
determined that medical evidence supported
Dr. Hussain’s opinion concerning plaintiff’s
minimal limitations on sitting. (Id.) As for
Dr. Hussain’s opinion concerning plaintiff’s
ability to work only twenty hours per week,
the ALJ concluded that no evidence
supported this opinion and, accordingly, did
not give Dr. Hussain’s opinion “full
weight.” (Id.)
The ALJ also found that plaintiff’s
“statements concerning the intensity,
persistence and limiting effects of these
symptoms are not credible to the extent they
are inconsistent with the above residual
functional capacity assessment.” (Id. at 30.)
The ALJ explained later in his decision that
plaintiff’s subjective allegations were “not
supported by the objective medical
evidence.” (Id. at 31.) For instance, the ALJ
noted that, although plaintiff “alleges that
her back pain is extreme, medical imaging
revealed mild bulging and minimal disc
space narrowing at the most.” (Id.) The ALJ
further explained, “Despite [plaintiff’s]
testimony of debilitating pain, the evidence
shows these impairments to be of a mild
nature.” (Id.)
For the reasons set forth infra, the Court
discerns legal errors in connection with the
ALJ’s assessment of plaintiff's residual
functional capacity, and, in light of those
errors, a remand is necessary because the
Court cannot determine whether substantial
evidence supports the decision. Branca,
2013 WL 5274310, at *11.
e. Other Work
At step five, if the claimant is unable to
perform his past relevant work, the ALJ
determines whether the claimant is capable
of adjusting to performing any other work.
20 C.F.R. § 404.1520(g). To support a
finding that an individual is not disabled, the
Commissioner has
the burden of
demonstrating that other jobs exist in
significant numbers in the national economy
that
claimant
can
perform.
Id.
§ 404.1560(c); see, e.g., Schaal v. Apfel, 134
F.3d 496, 501 (2d Cir. 1998).
“[I]n the Social Security context, a person must be
able to lift ten pounds occasionally, sit for a total of
six hours, and stand or walk for a total of two hours
in an eight-hour workday to be capable of ‘sedentary
work.’” Carvey v. Astrue, 380 F. App'x 50, 52 (2d
Cir. 2010) (citing Rosa v. Callahan, 168 F.3d 72, 78
n.3 (2d Cir. 1999); 20 C.F.R. § 404.1567(a)).
3
11
In this case, the ALJ considered
plaintiff’s age, education, work experience,
and residual functional capacity, in
connection with the Medical-Vocational
Guidelines set forth at Appendix 2 of Part
404, Subpart P of Title 20 of the Code of
Federal Regulations, and found that plaintiff
has the ability to perform a significant
number of jobs in the national economy.
(AR at 32–33.)
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.
2. Treating Physician Rule
Plaintiff argues that the ALJ failed to
accord the proper weight to her treating
physician, Dr. Hussain. The Court agrees
that the ALJ failed to apply the proper
standard for evaluating the medical opinion
of Dr. Hussain, and remands the case on this
basis.
20 C.F.R. § 404.1527(c)(2).
Although treating physicians may share
their opinion concerning a patient’s inability
to work and the severity of disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).
a. Legal Standard
The Commissioner must give special
evidentiary weight to the opinion of a
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
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000);
see, e.g., Rosa, 168 F.3d at 78–79; Clark,
143 F.3d at 118. The rule, as set forth in the
regulations, provides:
When the Commissioner decides that the
opinion of a treating physician should not be
given 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.” 20
C.F.R § 404.1527(c)(2); see 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
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
12
b. Analysis
opinion concerning plaintiff’s ability to
work part-time, although it appears that he
gave no weight to that opinion. The ALJ’s
failure to specify the weight assigned to this
particular opinion was error because it
prevents this Court from determining
whether the ALJ’s decision was supported
by substantial evidence. Branca, 2013 WL
5274310, at *12; see, e.g., Taylor v.
Barnhart, 117 F. App’x 139, 140–41 (2d
Cir. 2004) (remanding case because ALJ
“did not give sufficient reasons explaining
how, and on the basis of what factors, [the
treating physician’s] opinion was weighed,”
and stating that “we will continue remanding
when we encounter opinions from ALJ’s
that do not comprehensively set forth
reasons for the weight assigned to a treating
physician’s opinion” (internal citation and
quotation marks omitted)); Featherly v.
Astrue, 793 F. Supp. 2d 627, 631–32
(W.D.N.Y. 2011) (remanding case when
ALJ’s opinion contained only a “cursory
discussion” of the reasons for assigning
certain weight to two of plaintiff’s treating
physicians and failed to mention the weight
assigned to the opinions of other treating
physicians).
There was a legal error in the ALJ’s
decision because he failed to apply the
proper standard for evaluating the medical
opinion of Dr. Hussain, plaintiff’s treating
physician. Specifically, the ALJ did not note
the weight that he assigned to the particular
opinion of Dr. Hussain concerning
plaintiff’s ability to perform only part-time
work. The ALJ stated that he was giving
“[s]ome weight” to the overall opinion of
Dr. Hussain because, while medical
evidence supported Dr. Hussain’s opinion
concerning plaintiff’s ability to sit, the
evidence did not support Dr. Hussain’s
opinion concerning plaintiff’s ability to
work only twenty hours per week. (AR at
32.) The ALJ did not specify, however, the
weight he accorded to Dr. Hussain’s specific
Even if the Court assumes that the ALJ
rejected Dr. Hussain’s opinion concerning
plaintiff’s ability to work, and assigned that
opinion no weight, the ALJ erred by failing
to consider the factors set forth in 20 C.F.R.
§ 404.1527(d)(2) to determine how much
weight to give this opinion. “Even when an
ALJ does not give controlling weight to a
treating physician’s opinion, the ALJ cannot
give the opinion no weight without making
certain findings.” Daniel v. Astrue, No. 10CV-5397 (NGG), 2012 WL 3537019, at *9
(E.D.N.Y. Aug. 14, 2012) (emphasis in
original). Here, the ALJ concluded that Dr.
Hussain’s opinion concerning plaintiff’s
ability to work was unsupported by medical
evidence. However, “[t]his statement relates
only to the determination of whether Dr.
significant weight because the treating
source is inherently more familiar with a
claimant’s medical condition than are other
sources.” (internal citation and quotation
marks omitted)). Specifically, “[a]n ALJ
who refuses to accord controlling weight to
the medical opinion of a treating physician
must consider various ‘factors’ to determine
how much weight to give to the opinion.”
Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir.
2004)
(citing
20
C.F.R.
§ 404.1527(d)(2)). “Among those factors
are: (i) the frequency of examination and the
length, nature and extent of the treatment
relationship; (ii) the evidence in support of
the treating physician’s opinion; (iii) the
consistency of the opinion with the record as
a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to
the Social Security Administration’s
attention that tend to support or contradict
the opinion.” Id. (citing 20 C.F.R.
§ 404.1527(d)(2)). “Failure to provide ‘good
reasons’ for not crediting the opinion of a
claimant’s treating physician is a ground for
remand.” Snell, 177 F.3d at 133.
13
3. Plaintiff’s Testimony
[Hussain’s] opinion is entitled to controlling
weight; it does not itself supply with
sufficient specificity the ‘good reasons’ for
the weight ultimately accorded that opinion
such that this court might properly evaluate
the ALJ’s finding.” Smith v. Colvin, No. 11CV-4802 (NGG), 2013 WL 6504789, at *11
(E.D.N.Y. Dec. 11, 2013) (remanding for
proper evaluation of treating physician’s
opinion, even though court agreed with ALJ
that treating physician’s opinion was not
entitled to controlling weight); see
Sutherland v. Barnhart, 322 F. Supp. 2d
282, 291 (E.D.N.Y. 2004) (“It is not enough
for the ALJ to simply say that [the treating
physician’s] findings are inconsistent with
the rest of the record.”). Here, the ALJ did
not discuss the evidence supporting Dr.
Hussain’s conclusion, i.e. the positive leg
raising test noted in Dr. Hussain’s report
(AR at 661), and the MRIs of plaintiff’s
cervical and lumbar spine that Dr. Hussain
had ordered and reviewed (id. at 652–53).
Moreover, the ALJ never discussed the
length of the treatment relationship plaintiff
had with Dr. Hussain. These failures are
grounds for remand. See Branca, 2013 WL
5274310, at *13; Correale-Englehart v.
Astrue, 687 F. Supp. 2d 396, 431 (S.D.N.Y.
2010) (Report and Recommendation)
(remanding to the Commissioner because
“the ALJ never followed the analytical path
mandated by regulation, which requires that
he discuss the length of treating relationship,
the expertise of the treating doctors, the
consistency of their findings and the extent
to which the record offers support for some
or all of those findings”).4
Plaintiff also contends that the ALJ erred
in assessing her credibility in two respects.
She asserts (1) that the ALJ applied the
wrong legal standard in evaluating the
credibility of her testimony, and (2) that the
ALJ’s findings were insufficient to discredit
her testimony.
In support of her claim that the ALJ
applied the wrong legal standard to assess
her credibility, plaintiff seizes on the
following statement in the ALJ’s decision:
“the claimant’s statements concerning the
intensity, persistence and limiting effects of
these symptoms are not credible to the
extent they are inconsistent with the above
residual functional capacity assessment.”
(AR at 30.) As the Seventh Circuit has
noted, this boilerplate statement “gets things
backwards” because “the passage implies
that ability to work is determined first and is
then used to determine the claimant’s
credibility.” Bjornson v. Astrue, 671 F.3d
640, 645 (7th Cir. 2012). “The requirements
of 20 C.F.R. § 404.1529(c)(4) provide that
the ALJ must make a credibility assessment
before making a [residual functional
capacity] assessment, because the credibility
assessment is used to determine Plaintiff’s
limitations
and
[residual
functional
capacity].” Faherty v. Astrue, No. 11-CV2476 (DLI), 2013 WL 1290953, at *16
(E.D.N.Y. Mar. 28, 2013) (emphasis added).
“Therefore, the ALJ cannot claim that
Plaintiff’s testimony is not credible because
it is inconsistent with the [residual
functional capacity], when that testimony, in
part, should be used to determine the
[residual functional capacity].” Id. However,
this erroneous boilerplate language does not
require a remand “[i]f the ALJ has otherwise
explained his conclusion adequately.” Filus
4
Plaintiff also points out that the ALJ took no action
to develop any records from Dr. Hussain before
concluding that a portion of his opinion should be
rejected because there was no evidence to support it.
The Court notes that, on remand, the ALJ has an
affirmative obligation to develop the record to the
extent necessary to conduct the above analysis with
respect to the opinions of the treating physician. See,
e.g., Hernandez v. Astrue, 814 F. Supp. 2d 168, 188
(E.D.N.Y. 2011).
14
v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
In the instant case, the ALJ offered reasons
for discrediting plaintiff’s testimony that
were grounded in objective medical
evidence. Accordingly, the Court does not
discern reversible error in the legal standard
by which the ALJ assessed plaintiff’s
credibility.
steps of the evaluation process, including
steps three and four.” Polynice v. Colvin,
No. 8:12-CV-1381 (DNH/ATB), 2013 WL
6086650, at *6 (N.D.N.Y. Nov. 19, 2013);
see, e.g., Cruz, 941 F. Supp. 2d at 499–500.
Courts have held that “‘an ALJ’s failure to
explicitly address a claimant’s obesity does
not warrant remand.’” Cruz, 941 F. Supp. 2d
at 499–500 (quoting Guadalupe v. Barnhart,
No. 04 CV 7644 (HB), 2005 WL 2033380,
at *6 (S.D.N.Y. Aug. 24, 2005)). Rather,
“[w]hen an ALJ’s decision adopts the
physical limitations suggested by reviewing
doctors after examining the Plaintiff, the
claimant’s obesity is understood to have
been factored into their decisions.”
Guadalupe, 2005 WL 2033380, at *6 (citing
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
Cir. 2004)).
Even if the ALJ applied the proper legal
standard, plaintiff contends that his findings
did not support his ultimate conclusion to
discredit plaintiff’s testimony. The Court
does not reach this issue at this juncture
because “[t]he ALJ’s determination that
[plaintiff’s] allegations were inconsistent
with the medical evidence was tainted by the
ALJ’s failure to properly evaluate the
opinions
of
[plaintiff’s]
treating
physicians—a failure that would naturally
have affected how the ALJ viewed the
totality of the medical evidence.” Daniel,
2012 WL 3537019, at *11; see Sutherland,
322 F. Supp. 2d at 291. On remand, the ALJ
shall
examine
plaintiff’s
subjective
complaints “in light of the ALJ’s fresh
evaluation” of Dr. Hussain’s opinion
concerning plaintiff’s ability to work. Id.
Also on remand, the ALJ should be careful
to determine plaintiff’s credibility before,
and independently from, the residual
functional capacity determination. See
Faherty, 2013 WL 1290953, at *16.
Here, the ALJ determined that plaintiff’s
obesity was a severe impairment while
making explicit reference to SSR 02-1p (AR
at 26), stated that plaintiff’s neck and back
pain “along with her obesity” were “the
impairments causing the most limitation”
(id. at 31), and determined that “the
combination of [plaintiff’s] physical
impairments warrants a sedentary residual
functional capacity” (id.). This analysis
demonstrates that the ALJ adequately
considered plaintiff’s obesity. See, e.g.,
Miller v. Astrue, No. 11-CV-4103 (DLI),
2013 WL 789232, at *11 (E.D.N.Y. Mar. 1,
2013) (ALJ gave adequate consideration to
plaintiff’s obesity where ALJ listed obesity
as one of plaintiff’s severe impairments,
“stated specifically that she took into
account Social Security Ruling 02-1p,”
“acknowledged that Plaintiff’s obesity could
have an adverse impact on other
impairments,” and discussed diagnoses of
plaintiff’s doctors, who had taken plaintiff’s
obesity into account). The ALJ was not
required—as plaintiff contends—to provide
any further, detailed explanation as to how
plaintiff’s obesity factored into his
4. Plaintiff’s Obesity
Finally, plaintiff asserts that the ALJ
failed to give adequate consideration to her
obesity. The Court disagrees.
Under Social Security Ruling 02-1p, 67
Fed. Reg. 57,859 (Sept. 12, 2002) (“SSR 021p”), “[o]besity is not in and of itself a
‘disability,’ but the Social Security
Administration considers it to be a medically
determinable impairment, the effects of
which should be considered at the various
15
determination of her residual functional
capacity.
IV. CONCLUSION
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted. The
case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Date: January 9, 2014
Central Islip, NY
***
Plaintiff is represented by Charles E.
Binder, Law Offices of Harry J. Binder and
Charles E. Binder, P.C., 60 East 42 Street,
Suite 520, New York, NY 10165. Defendant
is represented by Loretta E. Lynch, United
States Attorney, Eastern District of New
York, by Robert W. Schumacher II, 610
Federal Plaza, Central Islip, NY 11722.
16
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