Lopez v. Commissioner of Social Security

Filing 22

ORDER denying 15 Motion for Judgment on the Pleadings; granting 18 Motion for Judgment on the Pleadings. IT IS HEREBY ORDERED, that for the reasons stated herein, the Commissioner's motion is denied, and plaintiff's granted to the ex tent that it seeks a remand. A remand is warranted because the ALJ failed to explain the weight she afforded to plaintiff's treating physician and failed to adequately explain her reasoning for granting him less than controlling weight. This case is remanded to the Commissioner for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/22/2014. (Lamb, Conor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-0979 (JFB)
_____________________

RAFAEL ACEVEDO LOPEZ,
Plaintiff,
VERSUS

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
September 22, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff
Rafael
Acevedo
Lopez
(“plaintiff”) 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. An Administrative Law Judge
(“ALJ”) found that plaintiff had the residual
functional capacity to perform light work,
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).
1

To the extent that plaintiff challenges other aspects
of the ALJ’s ruling, the Court need not reach them in

Plaintiff opposes the Commissioner’s motion
and cross-moves for judgment on the
pleadings, alleging that the ALJ erred by
failing to accord the proper weight to the
opinion of plaintiff’s treating physicians.1
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 granted to
the extent that it seeks a remand. Remand is
warranted because the ALJ failed to explain
the weight she assigned to the opinion of
plaintiff’s treating physician, Dr. Marcus,
who had been treating plaintiff for nearly ten
years at the time of the ALJ’s decision. The
ALJ stated that she afforded the opinions of
Dr. Marcus and other examining physicians
“less than weight” without analyzing the
required factors, particularly the frequency of
treatment and length of the treatment
light of the remand for reconsideration of the weight
afforded to plaintiff’s treating physician.

a heavy machine part at work. (Id. at 223-27.)
Plaintiff was diagnosed with acute low back
pain. (Id.)

relationship, and the consistency of Dr.
Marcus’s opinion with the clinical findings,
the opinions of other examining physicians,
and the overall record. Although the ALJ
cited other medical evidence which
supported her position, she did not apply all
of the required factors or specifically explain
how that other evidence undermined Dr.
Marcus’s opinion. Accordingly, a remand for
reconsideration of Dr. Marcus’s opinion is
warranted.

In September and October 2000, plaintiff
stated that he had trouble lifting more than
fifteen pounds and had trouble walking and
standing because of constant lower back pain
and stabbing pain travelling down his legs.
(Id. at 187, 210-11.) Plaintiff took pain
medication, but reported that the pain made it
difficult to drive a car or perform other
household tasks without familial help. (Id. at
209, 212.)

I. 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.

Subsequently, in February 2001, plaintiff
reported that his condition had deteriorated
such that he lost the ability to bend or lift
more than five pounds. (Id. at 213, 215.)
Plaintiff could still take care of his own
grooming, but he needed his mother to live in
his home to do his chores. (Id. at 215, 217.)
The interviewer noted that plaintiff’s English
was sufficient for the interview, but also
noted that he was compelled to stand several
times while she filled out the report. (Id. at
217.)

A. Factual Background
1. Plaintiff’s Work History and
Testimony
Plaintiff was born in 1955 (AR at 168),
and attended school in Puerto Rico between
the ages of nine and eighteen without
receiving a high school degree (id. at 89293). Plaintiff came to the mainland United
States in 1978 (id. at 781, 888), and held a
full-time job as a factory mechanic between
April 1981 and December 1999 (Id. at 188,
200, 783, 894-95). Plaintiff’s employment
entailed standing or walking for eight hours a
day and lifting up to 50 pounds in a vacuum
cleaner bag factory. (Id. at 188, 201).
Plaintiff stated that he is not fluent in written
or spoken English and has not worked since
December 6, 1999. (Id. at 186, 187.)

Afterwards, before ALJ Fier, plaintiff
testified that he had been taking Tylenol #3,
prescribed by Dr. Marcus, for three or four
years and had left the continental United
States recently to visit family in Puerto Rico.
(Id. at 858-62.) Additionally, plaintiff stated
he occasionally drove a car to doctor’s
appointments. (Id.) Plaintiff also received
$850
per
month
from
Workers’
Compensation and refused Dr. Marcus’s
recommended back surgery because
afterwards “you’re not the same.” (Id.)
Before ALJ Hoppenfeld, plaintiff
testified that he still drove a car. (Id. at 88891.) Plaintiff stated two prior attempts at
physical therapy were not effective. (Id. at
902-03.) Plaintiff stated that he could walk

On December 6, 1999, plaintiff first
sought medical treatment at the emergency
department of St. John’s Episcopal Hospital
for right-sided back pain related to his use of
2

of the L4-L5 disc on the right side. (Id.) Dr.
Marcus recommended physical therapy,
prescribed Vicoprofen, and concluded that
plaintiff was still unable to work. (Id.)

one block without reliance on a cane or back
brace; however, he could only stand for ten
minutes and sit for less than fifteen. (Id. at
907-08.) In the most recent supplemental
hearing, plaintiff noted that he had only
started wearing a back brace in the prior two
months. (Id. at 785.)

On February 3, 2000 and March 3, 2000,
plaintiff told Dr. Marcus that he was again
experiencing discomfort in his right leg. (Id.
at 237, repeated at 248, 291.) Dr. Marcus’s
recommendations and opinion that plaintiff
was disabled and could not return to his prior
employment remained unchanged on both
occasions. (Id.)

2. Plaintiff’s Medical History
a. Treating Physician (Dr. Marcus)
On December 7, 1999, plaintiff first saw
Dr. Marcus, who found tenderness around the
sacroiliac region on the right side with a
range of motion severely limited by pain
despite plaintiff having the ability to heel and
toe walk. (Id. at 236, repeated at 243, 247,
290.)
Dr. Marcus diagnosed sciatic
syndrome based on the reported straightening
of the lordosis without elimination of disk
space, serious joint damage, or other
destructive changes. (Id. at 236.) Dr. Marcus
administered steroids and prescribed Tylenol
#3 and Norflex. (Id.)

Subsequently, Dr. Marcus referred
plaintiff to Dr. Phillip Fyman and/or Dr.
Alexander Weingarten at Comprehensive
Pain Management Associates between March
22 and May 25, 2000. (Id. at 452, 515, 529,
532, 534; see also 450-51, 514, 527-28, 531,
533 (Workers’ Compensation forms).) These
physicians administered three lumbar
epidural steroid injections to plaintiff. (Id. at
452, 515, 529, 532, 534; see also 450-51,
514, 527-28, 531, 533 (Workers’
Compensation forms).)

On December 16, 1999, plaintiff told Dr.
Marcus his lower back pain was increasing
and radiating into the right leg with marked
limitation of motion. (Id. at 235-36.) While
plaintiff’s leg was in pain but neurologically
intact, however, the diagnosis remained the
same, and Lorcet, Norflex, and Lodine were
prescribed. (Id.) Dr. Marcus stated that
plaintiff was unable to work. (Id.)

On April 17, 2000, Dr. Marcus examined
plaintiff after the first two lumbar epidural
spinal injections. (Id. at 238.) Dr. Marcus
found stiffness of the lumbar spine and
positive straight leg raising, which was then
more pronounced on the right side. (Id.)
Dr. Marcus again examined plaintiff in
July 2000 and noted that plaintiff had not
responded well to steroids, and also noted
that straight leg raising was still markedly
positive on the right, and there was marked
restricted motion of the lumbar spine. (Id. at
231, repeated at 234, 288.) Dr. Marcus
prescribed Lodine and Lorcet and
recommended physical therapy. (Id.) Dr.
Marcus also opined that plaintiff could not
yet work. (Id. at 231.)

On January 6, 2000, Dr. Marcus
examined plaintiff again, and the pain in
plaintiff’s right leg had subsided but the pain
in plaintiff’s back persisted with minimal
sciatic tenderness. (Id. at 240, repeated at
245, 251, 293.)
There was, however,
tenderness about the sacroiliac region on the
right. (Id.) Dr. Marcus could not give
plaintiff an MRI because of metal shavings in
his eye, but a CT scan revealed a herniation
3

Dr. Marcus, after the x-ray dated
September 12, 2000, gave a more complete
examination of plaintiff on September 14.
(Id. at 230, repeated at 233, 287.) Further, on
September 20, 2000, Dr. Marcus analyzed
plaintiff’s sensory and motor skills. (Id. at
229 repeated at 241, 286.) Dr. Marcus
concluded that plaintiff was otherwise
normal except restricted motion, marked
spasm, and positive bilateral straight leg
raising. (Id. at 230, repeated at 233, 287.) Dr.
Marcus also noted that plaintiff’s pain did not
subside while taking painkillers. (Id. at 229
repeated at 241, 286.) As described below,
Dr. Marcus recommended that plaintiff see a
neurosurgeon, which plaintiff did. Dr. Peter
Hollis concluded in November 2000 that
plaintiff had lumbar pain syndrome,
secondary to the same L4-L5 disc herniation
which Dr. Marcus had diagnosed. (Id. at
266.)

surgery. Dr. Marcus recommended rest as
needed and the use of a heating pad. (Id. at
277, repeated at 296, 579.)
Plaintiff
continued to refuse surgery and an epidural
injection on November 4, 2003, and Dr.
Marcus noted that he remained disabled. (Id.
at 276, repeated at 295, 597.)
On January 27, 2004, Dr. Marcus noted
that plaintiff’s pain had extended into
plaintiff’s cervical spine, but plaintiff still
refused surgery. (Id. at 275, repeated at 297,
573, 575.) Again, Dr. Marcus found plaintiff
to be disabled. (Id.) On April 30, 2004, Dr.
Marcus completed a questionnaire regarding
plaintiff’s condition, and opined that plaintiff
could lift/carry zero pounds and that he could
sit/stand/walk zero hours in an eight-hour
workday due to sciatic syndrome. (Id. at 28990.)
On July 21, 2004, Dr. Marcus noted that
plaintiff’s condition had not definitively
changed, and that plaintiff was now reporting
pain in his left leg. (Id. at 318, 569.)
Examination revealed restricted motion of
the lumbar spine. (Id.) Dr. Marcus also noted
that physical therapy had not been authorized
despite numerous requests. (Id.)

On March 26, 2001, plaintiff returned to
Dr. Marcus, who recommended surgery
because plaintiff’s condition had not
improved. (Id. at 284.) Dr. Marcus continued
to find no change in plaintiff’s condition in
October of 2001, February of 2002, June of
2002, September of 2002, January of 2003,
and April of 2003. (Id. at 278-83, 464, 472,
554, 581.) On these occasions, Dr. Marcus
repeatedly urged surgery, but plaintiff
refused based upon his friends’ bad
experience with back surgery.2 (Id. at 279,
466, 583.) Dr. Marcus continued to conclude
that plaintiff was totally disabled. (Id. at 278,
464, 581.) A CT scan in July 2003 showed
bulging discs, a large posterior spur, and disc
narrowing due to degenerative changes. (Id.
at 301.)

On September 17, 2004 and December
10, 2004, Dr. Marcus noted no change in
plaintiff’s condition and began prescribing
Bextra. (Id. at 315-16, 567, 603.)
Additionally, Dr. Marcus again requested
that plaintiff’s health insurance provide
physical therapy for plaintiff. (Id. at 315,
615.)
On March 2, 2005 and May 9, 2005, Dr.
Marcus saw plaintiff again but there was no
material change in plaintiff’s condition. (Id.
at 313-14, 599, 601, 661-62.) Dr. Marcus
reaffirmed his diagnosis again on July 25,

Plaintiff returned to Dr. Marcus again on
August 1, 2003, and reported that his back
pain had been “very bad,” but he still refused
2

The Court notes that surgery, even if recommended
by one’s treating physician, is not a prerequisite for

disability benefits. See Poole v. R. Ret. Bd., 905 F.2d
654, 664 (2d Cir. 1990).

4

changes in plaintiff’s condition. (Id. at 629,
652.) Moreover, on February 26, 2007, Dr.
Marcus’s examination revealed no changes in
plaintiff’s condition. (Id. at 627, 651.)

2005, when he found generalized tenderness
and mildly positive straight leg raising. (Id.
at 312, 597, 660.)
Dr. Marcus saw plaintiff again when he
sought medical attention, on September 12,
2005, following episodes of sudden
weakness in his leg. (Id. at 317, 639, 659.) A
small sciatic scoliosis was diagnosed, and Dr.
Marcus noted that the patient was totally
disabled, although he had been attending
physical therapy. (Id. at 317, 639, 659.) On
October 26, 2005, Dr. Marcus’s assessment
remained unchanged. (Id. at 311, 611, 658.)
On January 2, 2006, plaintiff reported three
more episodes of leg weakness. (Id. at 310,
repeated at 609, 657.)

Subsequent to plaintiff’s hernia surgery,
Dr. Marcus’s examination, on April 25, 2007,
showed plaintiff’s back was still stiff and
characterized by spasm around the
paravertebral muscles in the lumbar spine.
(Id. at 625, 650.) Plaintiff further informed
Dr. Marcus, on July 16, 2007, that he was
experiencing abdominal pain leading to Dr.
Marcus prescribing Vicodin. (Id.) Further,
on October 5, 2007, Dr. Marcus found that
the CT-scan showed “relatively meager
findings” regarding plaintiff’s injuries
leading Dr. Marcus to prescribe Neurontin.
(Id. at 621, 648.) Dr. Marcus suspected
irritation of the sciatic nerve. (Id.) On
December 5, 2007, plaintiff complained that
the Neurontin was not effective leading Dr.
Marcus to prescribe Vicodin after examining
plaintiff. (Id. at 619, 647.)

Further examination by Dr. Marcus on
March 15, 2006, revealed markedly positive
straight right leg raising with a positive left
cross-response with a marked decrease in
lumbar ranges of motion, as well as strong
dorsiflexion of the great toe and ankle against
resistance. (Id. at 604, 658.) Moreover, on
May 22, 2006, plaintiff complained of neck
pain leading Dr. Marcus to discover marked
stiffness of the entire spine with spasm at the
paravertebral muscle and positive straight
right leg raising with a positive cross
response on the left. (Id. at 606, 655.)

On March 10, 2008, plaintiff told Dr.
Marcus for the first time that he occasionally
experienced incontinence of urine and bowel.
(Id. 616, 645.)
Dr. Marcus discussed
treatment injections, but plaintiff would not
consider them. (Id.) Dr. Marcus noted that
plaintiff appeared distressed, and he
recommended psychiatric evaluation and
anti-depressant medication. (Id. at 617, 646.)
Plaintiff sought and received such treatment.
On May 21, 2008, plaintiff returned to Dr.
Marcus and continued to complain of
occasional bladder and bowel problems with
testicular pain. Dr. Marcus’s diagnosis
remained unchanged. (Id. at 615, 642.)

Consequently, plaintiff returned to Dr.
Marcus with numbness in his right leg on
August 9, 2006. (Id. at 633, 654.) Moreover,
examination
showed
plaintiff
was
neurologically-intact, but revealed stiffness
of the spine with positive straight leg raising
leading Dr. Marcus to prescribe Flexeril and
Tylenol #3. (Id.) On October 6, 2006, Dr.
Marcus’ diagnosis and prescription were
unchanged after examining plaintiff. (Id. at
631, 653.)

In July 2009, Dr. Marcus wrote a letter to
plaintiff’s attorney, in which he summarized
plaintiff’s medical condition and found that
plaintiff was totally disabled and unable to
return to work since December 16, 1999,

On December 11, 2006, Dr. Marcus
reviewed a recent CT scan and reported no
5

herniated disc. (Id. at 767.) Nonetheless, the
scan showed bulging of L3-L4, L4-L5, and
L5-S1 as well as spina bifida occulta of S1.
(Id.)

while also noting plaintiff’s phobia of
surgery. (Id. at 702-04.) Dr. Marcus provided
additional detail in a Medical Source
Statement dated July 27, 2009, in which he
noted plaintiff’s back pain with right leg
radiation and incontinence, as well as pain
sitting or standing and positive right straight
leg raising at 50 degrees, lumbar spasms, an
antalgic gait, and muscle weakness of the
right lower extremity. (Id. at 705-10.)
Accounting for the pain and the dizziness and
drowsiness caused by the medication and the
underlying condition, Dr. Marcus stated that
plaintiff could continuously sit for only 30
minutes, stand for only one hour, and walk
only 1-2 city blocks without “severe pain.”
(Id. at 707.) During an 8-hour workday,
plaintiff would only be able to sit, stand, and
walk for 2 hours total, would need to be able
to shift positions at will and take unscheduled
breaks of 20-30 minutes in length, and would
be absent from work more than four times per
month. (Id. at 708-10.)

c. Other Physicians
1. Dr. Young
On March 10, 2000, Dr. Lancelot Young,
an orthopedic surgeon, provided plaintiff
with an independent medical examination
regarding his back pain radiating into the leg.
(Id. at 429-32, repeated at 482-85, 500-03)
However, Dr. Young observed that plaintiff
had full (5/5) strength throughout his
extremities and a high range of motion. Dr.
Young
diagnosed
lumbrasacral
radiculopathy and, like Dr. Marcus, found a
herniated disc. (Id.) He concluded that
plaintiff had a moderate disability and could
work in a sedentary position. (Id. at 432.)
2. Dr. Fishman

b. Medical Tests
Dr. Fishman, an orthopedic surgeon and
independent medical examiner, examined
plaintiff, who complained of some
generalized paresthesia, on June 20, 2000.
(Id. at 440-42, 547-49.) Dr. Fishman found
that plaintiff was ambulating slowly, had
positive straight leg raising on the right at 50
degrees, and had back tenderness but no
depressed reflexes and diagnosed plaintiff
with lumbrosacral derangement with right
radiculopathy. (Id.) The doctor concluded
that plaintiff had a temporary moderate
partial disability, and advised him to consult
a neurosurgeon. (Id.)

On December 28, 1999, a CT scan
revealed lateral right disc herniation at L4-5
and face anthropathy at the lower two lumbar
levels. (Id. at 264.) This CT scan was later
reviewed by Dr. Marcus. On September 12,
2000, plaintiff once more found himself at
the St. John’s Episcopal Hospital emergency
department due to “pins and needles” painful
sensations in his left leg, but there were no
substantial changes revealed by x-ray. (Id. at
308, repeated at 255.)
On July 16, 2003, a CT scan showed
bulging discs at the C3-C4, C4-C5, and C5C6 levels, a large posterior spur at the C6-C7
level, and disc narrowing due to
degeneration. (Id. at 301.)

Additionally, Dr. Fishman, on April 10,
2001, noticed that plaintiff ambulated well
enough to not use a cane and get on and off
the examination table. (Id. at 474-76,
repeated at 556-58.) Dr. Fishman diagnosed
lumbrosacral derangement with right

On October 16, 2009, a CT scan of
plaintiff did not definitively demonstrate a
6

consultant Dr. Kaye performed a physical
residual functional capacity assessment—a
file review—and concluded that plaintiff
could frequently lift and carry ten pounds,
stand and walk at least two hours in an eighthour workday, and sit about six hours in an
eight hour workday. (Id. at 257-58.)
Therefore, plaintiff was capable of
completing sedentary work. (Id.) Another
non-examining consultant, Dr. Malik,
concurred with Dr. Kaye. (Id. at 256-63.)

radiculopathy and recommended retraining
for a sedentary position due to a temporary
moderate partial disability. (Id.)
3. Dr. Hollis
As mentioned, plaintiff was advised to
see a neurosurgeon, and on November 3,
2000, he was examined by neurosurgeon Dr.
Peter Hollis. (Id. at 266.) Dr. Hollis found
significant paraspinal spasm and pelvic tilt,
positive bilateral straight leg raising
especially on the right, poor deep tendon
reflexes, normal gait, motor skills and
coordination. (Id.) Dr. Hollis concluded
(like Drs. Marcus and Young) that plaintiff’s
symptoms were lumbar pain syndrome
secondary to L4-L5 disc herniation that
would require lumbar laminectomy,
discectomy and instrumented fusion to cure.
(Id.) Dr. Hollis prescribed Tylenol #3 for the
plaintiff’s pain. (Id.)

6. Dr. Torrents
Plaintiff was examined by Dr. Torrents, a
physiatrist, on July 27, 2005, in order to be
evaluated for physical therapy. (Id. at 590-92,
593-595,
612,
634-37
(Workers’
Compensation Forms).) The examination
revealed a full range of motion in his joints,
full muscle strength in the upper extremities
and lower extremities with a normal gait.
(Id.) However, like Drs. Marcus, Young, and
Hollis, Dr. Torrents diagnosed painful
lumbar herniated discs, noted sciatic pain,
and requested authorization for physical
therapy three times per week. (Id. at 59192.) Dr. Torrents also noted that he believed
that plaintiff remained “fully disabled.” (Id.)

4. Dr. Villafuente
On November 29, 2000, Dr. Villafuente,
a consultant, found that movement
intensified plaintiff’s pain while medication
and BenGay partially relieved plaintiff’s
pain. (Id. at 252.) Plaintiff reported that
physical therapy was not working, and that he
could only sit for one-half hour and stand for
less than 20 minutes. (Id.) Dr. Villafuente
found that plaintiff had full muscle strength
and motion, which allowed him to travel
about 150 feet and transfer from sitting to
standing. (Id.) Plaintiff also had muscle
spasms, tenderness, positive right and
negative left straight leg raising, a slow gait,
and motion caused pain. (Id. at 254.) Dr.
Villafuente
ruled
out
lumbrosacral
radiculopathy. (Id.)

After physical therapy, on September 1,
2005, plaintiff told Dr. Torrents his physical
pain was unrelieved by therapy. (Id. at 587.)
Dr. Torrents discovered changed bilateral
straight leg raising positive at 70 degrees.
(Id.) Dr. Torrents also found spinal flexion
to 40 degrees, and extension to 20 degrees
and for the second time diagnosed total
disability from painful sciatica secondary to
L4-L5 and L5-S1 herniated discs. (Id.) Dr.
Torrents followed up by requesting physical
therapy
authorization
and
for
electromyography (EMG)/nerve conduction
study (NCV) to rule out lumbar
radiculopathy. (Id.)

5. Dr. Kaye and Dr. Malik
On January 5, 2001, state agency medical
7

7. Psychiatric Examinations3

sit, or stand six hours in an eight-hour
workday and lift up to 20 pounds. (Id. at 805,
808.) Therefore, Dr. Axline concluded,
plaintiff was qualified for light work. (Id.)
Dr. Jonas, a board certified metal health
medical consultant, was also called to testify
to plaintiff’s alleged psychological and
mental impairments. Dr. Jonas testified that
the 2008 psychiatric complaints were
amplified in order to receive benefits. (Id. at
829-30.) Further, Dr. Jonas also proffered
that plaintiff should have received back
surgery because plaintiff underwent hernia
surgery, and commented that he believed
there were inconsistencies in plaintiff’s
records. (Id. at 827.)

As
noted
above,
Dr.
Marcus
recommended in March 2008 that plaintiff
see a psychiatrist. Subsequently, on March
24, 2008, Zayne Beckford, MA Intern, at St.
John’s Episcopal Hospital Community
Hospital, evaluated plaintiff. (Id. at 727.)
Beckford found that he had a Global
Assessment of Functioning score of 49,
indicating serious symptoms impairing social
functioning. (Id.) Beckford diagnosed mood
disorder due to back injury with major
depressive-like episodes. (Id.) On April 21,
2008, Dr. Bartha, a psychiatrist, examined
plaintiff, who stated his depression started
after the September 11, 2001 attacks. Dr.
Bartha found plaintiff had a major depressive
disorder with psychotic features with a GAF
between 51 and 55 (indication moderate or
severe difficulty). (Id. at 712-13, 736-37.)
Dr. Bartha’s prescription increased plaintiff’s
Cymbalta,
decreased
the
Klonopin
prescription, and continued Zyprexa and
Ambien. (Id.)

Vocational Expert Andrew Pasternak
also testified below, and characterized
plaintiff’s prior job as a highly skilled
position requiring high amounts of exertion.
(Id. at 834-35.) While Pasternak noted that
plaintiff could no longer work as a factory
mechanic (id. at 834-35), he argued that
plaintiff was still sufficiently capable to
complete jobs in the local and national
economy, such as housekeeper/cleaner,
assembler, and machine tender (id. at 83537). Further, Pasternak testified that, even if
plaintiff were sedentary, he would be able to
work as a preparer or pinker cutter. (Id. at
840, referring to 932-33.)
However,
Pasternak also acknowledged that there were
no jobs available which plaintiff could
perform if he was limited to the restrictions
described in Dr. Marcus’s July 2009 letter.
(Id. at 850.) Pasternak also agreed that there
were no jobs plaintiff could perform if he had
to take four to five breaks per day. (Id.)

8. Testifying Experts
Several medical experts also testified
about plaintiff’s condition as part of the
proceedings below.
Dr. Axline, an
orthopedist and medical consultant, reviewed
the medical evidence in the record and
concluded the plaintiff never had any
herniation based on the 2009 CT scan
because herniation is a non-curable
condition. (Id. at 793-94.) Dr. Axline further
noted that plaintiff had a high level of
neurological functioning (id. at 811) and
strength and joint functioning (id. at 806).
Dr. Axline opined that plaintiff could walk,
3

Plaintiff also argues that the ALJ improperly
concluded that there was insufficient evidence of his
alleged psychiatric impairments, and did not consider
the possibility that the 2008 diagnoses of plaintiff’s
providers could have been retrospective and thereby

extended into the insured period. The records do not
suggest a retrospective diagnosis on their face, but the
Court need not decide this question. On remand,
plaintiff will have the opportunity to enter additional
psychiatric evidence.

8

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 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 plaintiff’s position.
See 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)).

B. Procedural History
Plaintiff applied for disability insurance
benefits on October 4, 2000. (AR at 168170.) The Commissioner denied plaintiff’s
request and plaintiff subsequently received a
hearing before ALJ Seymour Fier on
September 24, 2001. (See id. 31-32, 36, 6371.) ALJ Fier found that plaintiff was not
disabled.
(Id. at 33-45.) The Appeals
Council vacated ALJ Fier’s judgment and
remanded the case to further develop the
record due to ALJ Fier not contacting Dr.
Marcus or considering Dr. Marcus’s opinion,
or using a vocational expert. (Id. at 87-90.)
After a supplemental hearing, ALJ Fier
found, again, that plaintiff was not disabled.
(Id. at 46-60.) The Appeals Council vacated
the decision and remanded the case for
further development by ALJ Hoppenfeld
because of a failure to meet the requirements
of the treating physician rule. (Id. at 107-10.)
ALJ Hoppenfeld also held that plaintiff
was not disabled. (Id. at 10.) The Appeals
Council vacated the decision and remanded
for further proceedings because Dr. Marcus’s
letter clarifying his prior treatment was new
evidence, the ALJ failed to evaluate the
weight assigned to a non-testifying
consultant, and a lack of development of the
ALJ’s reasoning regarding plaintiff’s mental
health claims. (Id. at 141-45.) On remand,
the ALJ concluded that plaintiff was capable
of light work, and not disabled. Afterwards,
the Appeals Council denied plaintiff’s
request for review, (id. at 943-46), and this
action followed.

III. DISCUSSION
A. Legal Standard
A claimant is entitled to disability
benefits under the Act 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

II. STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ only if the decision
is based upon legal error or is not supported
by substantial evidence. Balsamo v. Chater,
9

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 regard to the first four
steps while the Commissioner bears the
burden of proving the last step. Brown, 174
F.3d at 62.

months.” 42 U.S.C. § 1382c(a)(3)(A). An
individual’s physical or mental impairment is
not disabling under the Act 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 [and clinical findings]; (2)
diagnoses or medical opinions based on such
facts; (3) subjective evidence of pain or
disability . . . ; 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(a)(4), 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
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.

B. Application
In opposing defendant’s motion, plaintiff
argues that the ALJ’s decision is not
supported by substantial evidence and is the
result of legal error. Specifically, plaintiff
argues that the ALJ failed to apply the
“treating physician rule” by not giving
“controlling weight” to Dr. Marcus’s
opinion. As set forth below, the Court
concludes that the ALJ failed to articulate
how much, if any, weight she afforded to Dr.
Marcus and failed to explain that weight in
terms of the required factors.
1. 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 gainful activity is
work activity that involves doing significant
physical or mental activities, 20 C.F.R. §
404.1572(a), and gainful work activity is
work usually done for pay or profit, 20 C.F.R.
§ 404.1572(b). Individuals who are employed
10

impairments in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1.
(AR. at 31.) Substantial evidence supports
this finding, and plaintiff does not challenge
its correctness.

are engaging in substantial gainful activity. In
this case, the ALJ determined that plaintiff
had not engaged in any substantial gainful
activity since December 6, 1999. (AR at 13.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness.

4. Residual Functional Capacity and
Past Relevant Work

2. Severe Impairment
If the claimant does not have a listed
impairment, the ALJ determines the
claimant’s residual functional capacity, in
light of the relevant medical and other
evidence in the claimant’s record, in order to
determine the claimant’s ability to perform
his past relevant work. 20 C.F.R. §
404.1520(e). The ALJ then compares the
claimant’s residual functional capacity to the
physical and mental demands of his past
relevant work. 20 C.F.R. § 404.1520(f). If the
claimant has the ability to perform his past
relevant work, he is not disabled. Id. In this
case, the ALJ found that plaintiff does not
have the residual functional capacity to
perform his past relevant work as a mechanic,
but that he does have the ability to perform
“the full range of light work.” (Id. at 14, 27.)
Plaintiff challenges this conclusion, and it is
discussed in more detail infra.

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 v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996). An
impairment or combination of impairments is
“not severe” when medical and other
evidence establishes only a slight
abnormality or a combination of slight
abnormalities that would have no more than
a minimal effect on an individual’s ability to
work. See 20 C.F.R. § 404.1521. Based on
the opinion of the medical examiners who
testified, the ALJ found that plaintiff was not
severely impaired. However, as discussed
infra, the ALJ’s failure to apply the treating
physician rule requires remand in order to
determine whether the same findings are
warranted.

5. 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 Social
Security Administration has the burden of
demonstrating that other jobs exist in
significant numbers in the national economy
that claimant can perform. 20 C.F.R. §
404.1560(c); see also Schaal v. Apfel, 134
F.3d 496, 501 (2d Cir. 1998). Here, the ALJ
concluded that plaintiff could have
performed a significant number of light-work

3. Listed Impairment
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(c). In this
case, the ALJ found that plaintiff’s
impairments did not meet any of the listed
11

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.”) If the opinion
of the treating physician as to the nature and
severity of the impairment is not given
controlling weight, the 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 the 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.”
Clark, 143 F.3d at 118 (citation omitted).

jobs. (AR at 28-29), and plaintiff challenges
that conclusion.
Plaintiff’s primary argument for remand
is based on the “treating physician rule,”
which requires ALJs to give “special
evidentiary weight” to the opinion of a
treating physician in certain circumstances.
See Clark, 143 F.3d at 118. The treating
physician rule “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
provides:
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 wellsupported 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.

When the Commissioner chooses not to
give the treating physician’s opinion
controlling weight, she must “give good
reasons in . . . [her] notice of determination or
decision for the weight [she] 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
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

20 C.F.R. § 404.1527(c)(2).
However, although treating physicians
may share their opinion concerning a
12

marks omitted)); Torres, 2014 WL 69869, at
*13 (finding error where ALJ assigned only
“some weight” to opinion of treating
physician); Black v. Barnhart, No. 01-CV7825(FB), 2002 WL 1934052, at *4
(E.D.N.Y. Aug. 22, 2002) (“[T]he treating
physician rule required the ALJ . . . to clearly
articulate her reasons for assigning
weights.”).

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, 177 F.3d at 133; Torres v.
Comm’r of Soc. Sec., No. 13-CV-330(JFB),
2014 WL 69869, at *13 (E.D.N.Y. Jan. 9,
2014).
The issue in this case is whether the ALJ
adequately explained what weight, if any, she
afforded the opinion of Dr. Marcus when she
disagreed with his conclusions concerning
plaintiff’s limitation. Based on the findings
by Dr. Axline and others, the ALJ concluded
that plaintiff had the residual functional
capacity to perform a range of light work
available in the national economy. (AR at
33–35.) Therefore, the ALJ concluded that
plaintiff “has not been under a disability at
any time through the date of this decision”
and was not entitled to benefits. (Id. at 35.)

To be clear, the ALJ did not simply use
the wrong terminology; her ambiguous
language was compounded by an inadequate
explanation of her reasoning. Thus, even
assuming the ALJ simply left out the word
“controlling” (or some other word, when she
wrote “less than weight”), remand is still
required. In particular, the ALJ did not
address certain of the factors required when
an ALJ affords a treating source less than
controlling weight, despite the Second
Circuit’s repeated admonitions to do so. For
example, the ALJ’s opinion does not address
“the frequency of examination and the length,
nature, and extent of the treatment
relationship.” Clark, 143 F.3d at 118. Dr.
Marcus examined, tested, and treated
plaintiff every few months for nearly 10
years. In other words, he was “likely to be
the medical professional[] most able to
provide a detailed, longitudinal picture of . . .
medical impairment(s) and may bring a
unique perspective to the medical evidence
that cannot be obtained from . . . reports of
individual examinations.” Taylor, 117 F.
App’x at 140; (quoting 20 C.F.R. §
404.1527(d)(2)).
Accordingly, the ALJ
should have specifically addressed why a
relationship of this length did not entitle Dr.
Marcus’s opinion to controlling weight.

However, the Court concludes that the
ALJ did not provide sufficient reasons for
rejecting Dr. Marcus’s opinion, which she
stated was afforded “less than weight.” (Id.
at 26.) Based on this statement, it is simply
unclear how much, if any, weight the ALJ
assigned to Dr. Marcus, the treating
physician, and this ambiguity requires
reversal. The Second Circuit has repeatedly
noted that an ALJ must “set forth her reasons
for the weight she assigns to the treating
physician’s opinion.” Shaw, 221 F.3d at 134;
see also 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

Instead, the ALJ dismissed Dr. Marcus’s
opinion as worthy of “less than weight”
because it was not “couched in vocationally
relevant terms.” (Id. at 26.) Apart from the
fact that this critique is vague with respect to
the amount of weight afforded, it also appears
13

to ignore Dr. Marcus’s vocational
observations on July 27, 2009, when he
documented that plaintiff could continuously
sit for only 30 minutes, stand for only one
hour, and walk only 1-2 city blocks without
“severe pain.” (Id. at 707.) During an 8-hour
workday, plaintiff would only be able to sit,
stand, and walk for 2 hours total, would need
to be able to shift positions at will and take
unscheduled breaks of 20-30 minutes in
length, and would be absent from work more
than four times per month.4 (Id. at 708-10.)
These are the exact same type of vocational
observations relied upon by Dr. Axline to
reach a different conclusion (cf. id. at 805),
yet the ALJ appears not to have been familiar
with Dr. Marcus’s vocational findings,
despite his long history with plaintiff.
Furthermore, Dr. Axline, on whom the ALJ
relied, also appeared to be unfamiliar with
Dr. Marcus’s vocational observations. When
asked whether plaintiff could walk and stand
six hours in an 8-hour day, Dr. Axline
responded that “[t]here’s nothing in the
record that said he can’t” (id. at 805), even
though Dr. Marcus concluded that plaintiff
could only sit, stand, and walk for two hours
total in an 8-hour day. Even the vocational
expert Pasternak (who the ALJ cited
favorably) acknowledged that, if true, Dr.
Marcus’s findings would prevent plaintiff
from working any job. (Id. at 850.)

marks and citations omitted). In other words,
the ALJ must be able to point to other aspects
of the record that support Dr. Axline’s
contentions, beyond the contentions
themselves. The ALJ suggested that the
“objective clinical findings” more strongly
supported Dr. Axline and allowed her to
afford “less than weight” to Dr. Marcus (AR
at 26), but it is entirely unclear which clinical
findings she was referring to, or why they
were superior to the objective clinical
findings recorded by Dr. Marcus. In his July
2009 Medical Source statement, he described
the “positive objective signs” of plaintiff’s
disability as spasm and tenderness around the
lumbar spine, antalgic gait, and positive
straight leg raising of 50 degrees. (Id. at 706.)
This last finding is significant because the
ALJ incorrectly critiqued Dr. Marcus for not
providing a degree measurement of his
straight-leg raise test (id. at 23), which is yet
another indication that she did not afford Dr.
Marcus’s findings the proper consideration.
Furthermore, the ALJ’s reliance on Dr.
Axline is especially problematic with respect
to Dr. Marcus’s 2009 Medical Source
Statement, because, in his testimony, Dr.
Axline only addressed earlier records by Dr.
Marcus (id. at 801-03, 915-16), and did not
discuss the 2009 objective findings and Dr.
Marcus’s conclusion that plaintiff could not
perform the tasks necessary for even
sedentary work. Thus, the ALJ’s rationale
for relying on Dr. Axline—his supposed
familiarity with the entire medical record—is
flawed with respect to the 2009 evidence
demonstrating
plaintiff’s
functional
limitations, provided by the same treating
physician who had been observing similar
limitations for the past 10 years.5

To be sure, the ALJ was correct when she
cited Second Circuit precedent for the
proposition that “nonexamining sources
[such as Dr. Axline] may override treating
sources’ opinions,” but that rule applies only
where the evidentiary record supports that
conclusion. Netter v. Astrue, 272 F. App’x
54, 55-56 (2d Cir. 2008) (internal quotation
4

The 2009 Medical Source Statement shows marginal
improvement from plaintiff’s functional limitations
during the insured period. As noted supra, Dr. Marcus
concluded in 2004 that plaintiff could lift/carry zero
pounds and that he could sit/stand/walk zero hours in
an eight-hour workday. (AR at 289-90.)

5

In her opinion, the ALJ cited two Second Circuit
opinions suggesting that the opinions of nonexamining sources may override the opinions of
treating sources, and this Court does not hold
otherwise. However, it does not appear that either of

14

In deciding not to afford controlling
weight to Dr. Marcus’s opinion, the ALJ was
also required to analyze the opinion’s
“consistency with the record as a whole.”
Clark, 143 F.3d at 118. However, the ALJ
failed to address the fact that Dr. Marcus’s
conclusions are corroborated to varying
degrees by the conclusions of other
physicians who examined plaintiff. For
example, Dr. Torrents concluded as late as
2005 that plaintiff’s painful sciatica and
herniated disc left him “fully disabled.” (AR
at 591-92.)
Likewise, Dr. Marcus’s
observation of positive straight-leg raising is
echoed throughout the record, and at least
four providers, three of whom examined
plaintiff, concluded that he had a herniated
disc, based upon the 1999 CT scan. (Id. at
240, 264, 266, 432.) Despite this evidence,
the ALJ credited Dr. Axline’s testimony that
there was no herniated disc, because the 2009
CT scan showed “no definitive herniation.”
(Id. at 23.) However, Dr. Axline simply
stated as a fact that plaintiff never had a
herniated disc, without explaining how all of
the other providers could have been wrong.
Under these circumstances, the ALJ should
have explained why Dr. Axline’s opinion
about the herniation deserved greater weight
than those of multiple physicians who had the
benefit of examining plaintiff in person.

explanation must make specific reference to
the factors cited above, including the
frequency of visits and the length of the
relationship between plaintiff and Dr.
Marcus, and the consistency between Dr.
Marcus’s opinion and the entire record.
IV. REQUEST FOR A NEW ALJ
Plaintiff requests that, in light of the
numerous legal errors the ALJ made, a new
ALJ be appointed to prevent the denying
plaintiff’s due process rights. Following the
Second Circuit and sister circuits, this district
has held that this is permissible relief under
circumstances where the ALJ’s fundamental
impartiality is compromised by his or her
previous actions in a case. Miles v. Chater, 84
F.3d 1397, 1401 (2d Cir. 1996).
The relevant factors for determining
whether a new ALJ should be assigned on
remand include: “(1) a clear indication that
the ALJ will not apply the appropriate legal
standard on remand; (2) a clearly manifested
bias or inappropriate hostility toward any
party; (3) a clearly apparent refusal to
consider portions of the testimony or
evidence favorable to a party, due to apparent
hostility to that party; (4) a refusal to weigh
or consider evidence with impartiality, due to
apparent hostility to any party.” Sutherland
v. Barnhart, 322 F. Supp. 2d 282, 292
(E.D.N.Y 2004).

Accordingly, on remand, the ALJ must
directly address this conflicting evidence and
more clearly state the amount of weight
afforded to Dr. Marcus and the other
examining physicians. There is currently no
explanation in the record concerning how the
ALJ arrived at her decision to afford “less
than weight” to Dr. Marcus, or even what the
ALJ meant by that statement. On remand, the

None of these factors are present here,
and given their absence, the Court concludes
that “whether a case is remanded to a
different ALJ is a decision for the
Commissioner to make.” Hartnett v. Apfel,
21 F. Supp. 2d 217, 222 (E.D.N.Y. 1998).

the two cases cited by the ALJ involved a 10-year
treatment relationship or the ambiguous language
employed by the ALJ here. See Wells v. Comm’r of
Soc. Sec., 338 F. App’x 64 (2d Cir. 2009); Netter v.
Astrue, 272 F. App’x 54 (2d Cir. 2008). Moreover,
neither case addresses the failure of the ALJ to discuss

vocational findings by the treating physician, as the
ALJ failed to do here, despite the fact that she
criticized Dr. Marcus’s records for lacking vocational
terms.

15

V. 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 granted to
the extent that it seeks a remand. The case is
remanded to the Commissioner for further
proceedings
consistent
with
this
Memorandum and Order.
SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Date: September 22, 2014
Central Islip, NY

***
Plaintiff is represented by Sharmine Persaud,
1105 Route 110 Farmingdale, New York and
Sarah H. Bohr, Bohr & Harrington, LLC.,
2337 Seminole Road, Atlantic Beach, FL
32233. Defendant is represented by Loretta
E. Lynch, United States Attorney, Eastern
District of New York, by Candace Scott
Appleton, 610 Federal Plaza, Central Islip,
NY 11722.

16