Hart v. Colvin

Filing 15

ORDER denying 11 Motion for Judgment on the Pleadings; granting in part and denying in part 13 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioners motion for judgment on the pleadings is denied. Plaintiffs cross-motion for judgment on the pleadings is denied, but plaintiffs motion to remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/30/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-2455 (JFB)
_____________________

THOMAS HART,
Plaintiff,
VERSUS

CAROLYN COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
September 30, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Thomas Hart (“Hart” or
“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 for the period of June 19,
2008, through July 5, 2010. An
Administrative Law Judge (“ALJ”) found
that, until July 6, 2010, plaintiff had the
residual functional capacity to perform
sedentary work of a simple and unskilled
nature, could perform a significant number
of jobs in the national economy, and,
therefore, was not disabled. The Appeals
Council denied Hart’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 or, in the alternative, a remand.

Plaintiff argues that the ALJ erred by failing
to accord the proper weight to the opinion of
plaintiff’s treating physician, and, relatedly,
by failing to recontact the treating physician
before assessing the weight of that opinion.
For the reasons set forth below, the
cross-motions for judgment on the pleadings
are 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 recontact the treating
physician, Dr. Kioomars Moosazadeh. In
particular, the ALJ gave no weight to the
treating physician’s opinion that plaintiff
was totally disabled and could not perform
even sedentary work at least as of April
2010, because that opinion included no
objective testing results or findings to
support its conclusions. In other words, it is
well settled that the ALJ must recontact the
treating physician where, as here, the
physician’s information is determined to be
inadequate to determine whether the

family cleans for him. (Id. at 89–90.) He
cannot sleep well due to the constant pain.
(Id. at 83, 88.)

claimant is disabled (or the onset date of
disability). Thus, although there is evidence
in the record from other doctors to support
the ALJ’s finding, the ALJ should have
recontacted the treating physician, Dr.
Moosazadeh, for clarification of the reasons
for his opinion before deciding to disregard
it for lack of specific clinical findings.
Accordingly, a remand on that issue is
warranted.

2. Plaintiff’s Medical History

Hart suffered a work-related injury on
June 19, 2008, when he injured his neck,
arm, and shoulder while closing a train
window that jammed. (AR at 72–77.) He
was 44 years old. (Id. at 13, 188.) At the
time of his injury, and for 18 years prior,
Hart worked as a subway conductor for the
New York Transit Authority. (Id. at 70–71,
203.) His duties included public safety,
preparing trains for services, and operating
the doors. (Id. at 204.)

Dr. Kioomars Moosazadeh examined
plaintiff on July 8, 2008. (Id. at 315.) Dr.
Moosazadeh found that Hart was alert and
oriented, with an appropriate affect and
mood. (Id.) Hart had paravertebral
tenderness in the cervical spine, and spasms
in his neck and left lower extremity. (Id.) An
axial compression test was positive, and a
Spurling test was negative. (Id.) The left
shoulder was tender in the subacromial and
anterior glenohumeral spaces, rotator cuff
strength was decreased, and an impingent
sign was positive. (Id.) Lower back
flexibility was decreased, to 30 degrees of
forward flexion and 15 degrees of extension.
(Id.) An x-ray of the cervical spine showed
reversal of normal lordosis, age-appropriate
changes in the lower back, and no bone
pathology. (Id.) Dr. Moosazadeh assessed a
cervicolumbar spine sprain/strain, but he
ruled out a herniated disc or radiculopathy.
(Id. at 316.) He also diagnosed a left
shoulder
sprain/strain,
traumatic
impingement, and rotator cuff tear. (Id. at
316.) He concluded that “[t]he patient
remains disabled from his employment.”
(Id.) There is no evidence in the AR that Dr.
Moosazadeh saw Hart again until March
2009. (See id. at 241.)

Plaintiff’s highest level of education is
high school, and he has no job or vocational
training. (Id. at 207.) He lives alone in his
apartment. (Id. at 64–65.) As of February
2011, plaintiff, who is 5’10” tall, weighed
285 pounds, down from a high of 300-plus
pounds in 2009. (Id. at 65–66.) His daily
routine involves getting up at 10:00 or 11:00
a.m. and doing “virtually nothing” all day.
(Id. at 89, 96.) He does not shop for himself
and has his groceries delivered, and his

On July 22, 2008, Dr. Louis McIntyre,
an independent medical examiner, saw
plaintiff in connection with a workers’
compensation claim. (Id. at 252.) Motor
testing was 3 of 5 in the left upper extremity
and 4 of 5 in the right lower extremity. (Id.
at 253.) Reflexes were normal, and sensation
was intact. (Id.) Dr. McIntyre diagnosed a
cervical strain, a lumbar strain, and a left
shoulder strain. (id.) He stated that Hart had
a “temporary marked orthopedic disability,

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. The Court
focuses on the period before July 6, 2010.
1. Plaintiff’s Personal History

2

Plaintiff saw Dr. McIntyre again on
October 14, 2008. (Id. at 270.) Plaintiff was
unable to heel and toe walk, and had
difficulty getting on and off the examination
table. (Id. at 271.) His physical condition
was substantially similar to before. (See id.)
Dr. McIntyre found no tenderness, heat,
swelling erythema, or effusion in the left
shoulder. (Id.) He again opined that Hart had
a temporary moderate orthopedic disability
due to a cervical strain, lumbar strain, left
shoulder strain, and possible cuff tear. (Id. at
272.) Dr. McIntyre opined that plaintiff
could return to work with restrictions to no
lifting, pushing, or pulling over ten pounds,
or twisting or bending or motor vehicle
operation. (Id.) Plaintiff next saw Dr.
McIntyre on November 25, 2008. (Id. at
266.) Plaintiff was unable to heel and toe
walk and had difficulty getting on and off
the examination table. (Id. at 267.) Dr.
McIntyre’s findings and diagnosis remained
basically unchanged. (See id. at 267–68.) He
assessed that plaintiff had a temporary
moderate orthopedic disability, but that
plaintiff could return to work, with the
restrictions that he not lift, push, or pull over
ten pounds, or operate a motor vehicle or
mechanical equipment. (Id. at 268.)

concluded that Hart was incapable of
returning to work at that time, and stated
that the medication (Vicodin) could impact
his functional abilities. (Id.) Dr. McIntyre
reevaluated plaintiff on September 2, 2008,
and noted plaintiff’s complaints of pain in
his neck and back, radiating into his leg. (Id.
at 274–75.) Plaintiff was 5’10” tall and
weighed 285 pounds. (Id. at 275.) He was
unable to heel or toe walk, and had difficulty
getting on and off the examination table.
(Id.) The cervical spine had normal flexion,
but was limited to 30 of 45 degrees in
extension, 20 of 45 degrees in lateral tilting,
and 50 of 80 degrees of rotation. (Id.) There
was no vertebral tenderness to palpitation.
(Id.) The thoracolumbar spine was limited to
0 degrees of flexion and extension, 10/30
degrees in lateral tilting, and 5/30 degrees of
rotation. (Id.) Plaintiff’s left shoulder was
tender and limited to 90/150 degrees of
forward elevation, 20/40 degrees of
backward elevation, 90/150 degrees of
abduction, 20/30 degrees of adduction,
40/90 degrees of external rotation, and 20/40
degrees of internal rotation. (Id. at 276.)
Muscle strength was 4/5 in the left upper
extremity. (Id.) Dr. McIntyre diagnosed (1)
a cervical strain; (2) a lumbar strain, with
possible radiculopathy; and (3) a left
shoulder strain and possible cuff tear. (Id.)
He opined that plaintiff had a temporary
moderate orthopedic disability and that
plaintiff could return to work, with the
limitation that he not lift, push, or pull more
than ten pounds, or twist or climb. (Id.)
Plaintiff also could not operate a motor
vehicle. (Id.)

An MRI of Hart’s left shoulder on
December 30, 2008, showed mild
impingement of the supraspinatus tendon
and focus of the altered signal in the distal
supraspinatus tendon consistent with a
partial
instrasubstance
tear
and/or
tendinosis. (Id. at 244, 251, 318.) There was
no evidence of any tear or retraction in the
rotator cuff. (Id. at 251.)

An MRI of Hart’s lumbar spine on
September 24, 2008, revealed mild lumbar
levoscoliosis, and a broad-based disc bulge
at L5-S1. (Id. at 243, 250, 317.) There was
no disc herniation, spinal canal stenosis, or
foraminal stenosis. (Id. at 243.)

Plaintiff saw Dr. McIntyre on January 8,
2009. (Id. at 262.) Plaintiff could not heel or
toe walk. (Id.) His cervical spine was limited
to 20/45 degrees of flexion, 0/45 degrees in
extension, 20/45 degrees in lateral tilting,
and 30/80 degrees of rotation. (Id. at 263.)
There was no vertebral tenderness to
3

epidural injection to the lumbar spine,
prescribed three Vicodin per day, and
advised plaintiff to continue physical
therapy. (Id.) Plaintiff remained “disabled
from his employment.” (Id.)

palpitation. (Id.) The left shoulder was
limited to 30/150 degrees of forward
elevation, 20/40 degrees of backward
elevation, 30/150 degrees of abduction,
10/30 degrees of adduction, 0/90 degrees of
external rotation, and 30/40 degrees of
internal rotation. (Id. at 264.) Although the
shoulder was tender, there was no heat,
swelling, erythema, or effusion. (Id.) Dr.
McIntyre again assessed a temporary
moderate orthopedic disability. (Id.) He
stated that Hart could return to work, with
the restrictions that he not lift, push, or pull
over ten pounds, bend, operate a motor
vehicle, or operate mechanical equipment.
(Id.) Hart next saw Dr. McIntyre on
February 17, 2009. (Id. at 258.) Hart could
heel and toe walk, and get on and off the
examination table without difficulty. (Id.)
Dr. McIntyre generally reiterated his
previous diagnoses and recommendations,
except that Hart could not lift, push, or pull
up to twenty pounds. (Id. at 259.)

Plaintiff saw Dr. McIntyre on March 31,
2009. (Id. at 245.) He could not heel or toe
walk. (Id. at 246.) His cervical spine was
limited to 20/45 degrees of flexion, 10/45
degrees of extension, 20/45 degrees of
lateral tilting, and 50/80 degrees of rotation.
(Id.) The thoracolumbar spine was limited to
0/90 degrees of flexion, 0/30 degrees of
extension, 10/30 degrees of lateral tilting,
and 20/30 degrees of lateral rotation. (Id.)
There was no tenderness, heat, swelling, or
effusion in the left shoulder. (Id. at 247.) Dr.
McIntyre diagnosed a cervical strain, lumbar
strain, left shoulder strain, and left shoulder
tendinosis. (Id.) He concluded that Hart had
a “permanent mild orthopedic disability,”
but that plaintiff could return to work but
could not lift, push, or pull over 20 pounds,
or bend over. (Id.)

On March 19, 2009, plaintiff saw Dr.
Moosazadeh. (Id. at 241.) Plaintiff had
stopped physical therapy on his shoulder
after seeing improvement. (Id.) Dr.
Moosazadeh found that plaintiff was alert
and oriented, that his lumbar spine was
tender in the paravertebral muscles, and that
there was a loss of mobility in the axial
skeleton. (Id.) The lower extremities showed
a tension sign at 50 degrees, and the
hamstrings were tight, but there were no
focal neurological deficits. (Id.) Plaintiff’s
left shoulder was tender, rotator cuff
strength was -5/5, and range of motion was
restricted, with forward flexion to 160
degrees, abduction to 140 degrees, and
rotation to 35 degrees. (Id.) Dr. Moosazadeh
diagnosed (1) low back pain, but he ruled
out a herniated disc and radiculopathy; (2) a
cervical spine sprain/strain, but he ruled out
a herniated disc or radiculopathy; and (3) a
left shoulder sprain/strain, but he ruled out a
rotator cuff tear. (Id.) He administered an

Dr. Moosazadeh saw Hart on April 16,
2009. (Id. at 240.) Hart appeared alert and
oriented, but range of motion of the lumbar
spine was decreased, there was tenderness in
the paravertebral muscles, the hamstrings
were tight, and the left shoulder was stiff.
(Id.) There were no focal neurological
deficits. (Id.) Dr. Moosazadeh assessed (1)
lower back pain, chronic pain, and axial type
pain; (2) cervicalgia, but he ruled out a
herniated disc or radiculopathy; and (3) a
left shoulder sprain/strain, but no rotator
cuff tear. (Id.) He continued plaintiff’s
Vicodin prescription and noted that plaintiff
remained “disabled from his employment.”
(Id.) Dr. Moosazadeh’s evaluation on May
19, 2009, was similar, but he did not
mention that Hart remained disabled from
his employment. (See id. at 242.)

4

Plaintiff saw Dr. Justin Fernando, a
consultative medical examiner, on August
28, 2009. (Id. at 285–88.) Hart complained
that he was in constant pain, with the pain
aggravated by any movement of his body,
and that physical therapy and epidural
injections had not helped. (Id.) Plaintiff
exhibited a wide but normal gait and
appeared in no acute distress. (Id. at 286.)
He declined to heel or toe walk or squat, but
he needed no help getting on or off the
examination table. (Id.) The cervical spine
was limited to about 15 or 20 degrees of
flexion, extension was 0 degrees, lateral
flexion was less than 15 degrees bilaterally,
and rotary movements were about 30
degrees bilaterally. (Id.) There was no
cervical or paracervical tenderness, and no
spasm. (Id.) The shoulders were limited to
90 degrees of abduction and flexion, but
Hart had full range of motion in his elbows,
forearms, wrists, and fingers bilaterally. (Id.)
He had full strength in his proximal and
distal muscles, and there was no atrophy.
(Id.) The thoracic spine was limited to 45
degrees of flexion, 0 degrees of extension, 5
degrees of lateral flexion, and 15 degrees of
rotary movement. (Id. at 287.) Straight leg
raising was positive at 15 degrees
bilaterally, and in the upright position,
positive at 90 degrees on the right, and 75 to
80 degrees on the left. (Id.) Dr. Fernando
diagnosed Hart with chronic lower back
pain, unilateral lumbosacral radiculopathy,
chronic pain in the cervical spine with
unilateral cervical radiculopathy, and
morbid obesity. (Id.) He found Hart’s

On June 15, 2009, Dr. Moosazadeh
found plaintiff’s lower back mobility was
restricted, tenderness in the paravertebral
muscle and spasm with loss of mobility, and
pain in the left shoulder. (Id. at 282.) He
diagnosed (1) a low back pain/injury and a
cervical spine injury, but ruled out a
herniated disc and radiculopathy; and (2) left
shoulder sprain/strain, but no rotator cuff
tear. (Id.) He prescribed OxyContin and
Vicodin and noted that Hart remained
“disabled from his employment.” (Id.) On
July 13, 2009, Dr. Moosazadeh noted that
Hart was “complaining of constant pain
despite increasing the pain medication dose
and lumbar intervention” and was
considering surgical options. (Id. at 283.)
Plaintiff saw Dr. Andrew Merola on July
27, 2009, for “severe, unremitting
intractable low back pain with pain shooting
in the lower extremities.” (Id. at 303.)
Plaintiff demonstrated a severely antalgic
and kyphotic gait pattern, and he had
diminished lumbar and lumbosacral ranges
of motion, reversal of the lumbar lordosis,
and a positive spinal Phalen’s maneuver.
(Id.) Straight leg raising was positive at 50
degrees on the right, and 40 degrees on the
left. (Id.) Dr. Merola reviewed an MRI but
could not use it because it was of poor
quality, and so he ordered a new one. (Id.)
He determined that Hart’s signs and
symptoms were consistent and concordant
with lumbosacral radiculopathy. (Id.)
Plaintiff saw Dr. Moosazadeh on August
17, 2009, complaining of difficulty with
prolonged sitting, standing, and bending.
(Id. at 304.) His lumbar spine demonstrated
a flattened normal lordosis, spasm in the
paravertebral muscle, and loss of mobility in
the lumbar spine. (Id.) The lower extremity
tension sign bilaterally was 60 degrees, and
the calf muscle was nontender. (Id.) Dr.
Moosazadeh did not comment on whether
Hart was disabled from work. (See id.)

subjective feeling of pain was all
pervasive. There was not a single
movement that was done to full
extent because of pain that was the
result of moving the limbs and
moving the trunk; therefore, every
bit of the examination was associated
with varying degrees of pain. The
reflexes were totally flat in the upper
5

and lower extremities at all sites
tested. Whether this has any
relevance is unclear, but the
claimant’s problems might have to
be decided on the basis of an EMG
and
other
electro-radiological
examinations.
A
physical
examination could not pronounce the
reason for such severe state of
restriction of mobility.

of the thecal sac. (Id.) The MRI also showed
a L5/S1 grade 1 spondylolisthesis and a disc
bulge abutting the anterior margin of the
thecal sac. (Id.)
Dr. Merola reviewed the MRI on
January 4, 2010. (Id. at 310.) He found a
small scoliosis and disc bulges throughout
the lumbar spine, with some neuroforaminal
encroachment and some facet joint
arthopathy. (Id.) Given the complaints,
symptoms, and the MRI, Dr. Merola
assessed “rather significant derangement of
the low back for which [plaintiff] continues
to require medications and treatment by Dr.
Moosazadeh.” (Id.) Dr. Merola found no
need for surgical intervention. (Id.)

(Id.)
On
September
24,
2009,
Dr.
Moosazadeh noted that Hart’s medication
had provided some improvement, but Hart
had a severe dysfunction with standing,
bending, and lying down. (Id. at 305.) He
assessed plaintiff as “totally disabled from
his employment.” (Id.) That same day, Dr.
Moosazadeh filled out a Workers’
Compensation form stating that Hart was
“totally disabled”; he did not list any
restricted work opportunities. (Id. at 323.)
Dr. Moosazadeh’s diagnosis was largely
unchanged on October 22, 2009. (Id. at
306.) Dr. Moosazadeh stated that plaintiff
was “temporarily totally disabled from his
employment” (id.), and he filled out another
Workers’ Compensation form stating that
Hart was “totally disabled” (id. at 324). On
November 19, 2009, and again on December
17, 2009, Dr. Moosazadeh reiterated his
findings and diagnoses and continued to
state that the plaintiff was “totally disabled
from his employment.”1 (Id. at 308, 309.)

Plaintiff saw Dr. Moosazadeh on
January 26, 2010. (Id. at 311.) Dr.
Moosazadeh found that lumbar mobility was
restricted 20%, but that there was no
evidence of a focal neurologic deficit. (Id.)
He deemed plaintiff “disabled from his
employment” and instructed plaintiff on
appropriate limitations on prolonged sitting,
standing, bending, and lifting objects more
than twenty pounds. (Id.) Dr. Moosazadeh
reiterated his findings on February 24, 2010.
(Id. at 312.) He stated that Hart remained
“totally disabled from his employment” and
advised plaintiff on losing weight,
modifying his daily activity, and home
exercise. (Id.) Dr. Moosazadeh reached
similar conclusions on March 24, 2010. (Id.
at 313.) By that date, Hart had lost full
mobility of the axial skeleton of 30 to 40
percent, lower extremity tension sign
bilaterally was 60 degrees, and a FABER
test was positive. (Id.)

An MRI of Hart’s lumbar spine on
December 30, 2009, showed an L2-L3 left
neural foraminal disc herniation approaching
the exiting left L2 nerve root, with
associated left neural foraminal narrowing.
(Id. at 314.) There was no evidence of right
neural foraminal encroachment or deformity

Dr. Moosazadeh filled out a “Medical
Assessment of Ability to do Work Related
Activities” on April 20, 2010. (Id. at 339–
41.) Hart could lift and carry up to five
pounds occasionally (up to 1/3 of an 8-hour
day), based on his lumbar/cervical

1

These evaluations did not include specific details
about the degrees of flexion, extension, rotation, etc.

6

degrees of forward flexion, 10/25 degrees of
extension, 15/25 degrees of lateral flexion
bilaterally, and 20/30 degrees of rotation
bilaterally. (Id.) Plaintiff had trouble
standing on his heels and toes, and straight
leg raising was negative bilaterally. (Id.)
Plaintiff’s left shoulder was not tender or
deformed, but range of motion was limited
to 90/180 degrees of forward flexion, 40/45
degrees of internal rotation, and 50/45
degrees of external rotation. (Id. at 347.) Dr.
Spataro diagnosed chronic cervical and
lumbar disc syndrome, and left shoulder
derangement. (Id.) He found that plaintiff
had a permanent total disability. (Id.) On
follow up with Dr. Moosazadeh on July 28,
2010, plaintiff’s condition remained
unchanged, and Dr. Moosazadeh wrote that
plaintiff remained “totally disabled from his
employment.” (Id. at 357.)

sprain/strain, lumbar disc bulge/herniation,
and shoulder sprain/strain. (Id. at 339.) Dr.
Moosazadeh assessed that plaintiff could not
stand, walk, or sit at all during the day
because of his lumbar disc bulge and
herniation. (Id. at 339–40.) Hart also could
never climb, stoop, kneel, balance, crouch,
or crawl. (Id. at 340.) He was limited in
reaching, pushing, and pulling, particularly
overhead, but he had no environmental
limitations. (Id. at 341.)
Hart next saw Dr. Moosazadeh on May
24, 2010, and reported continued lower back
pain, and difficulty performing ambulatory
activities and activities of daily living. (Id. at
355.) Dr. Moosazadeh noted that Hart was
overweight, and had lost full mobility in the
paraxial muscle. (Id.) Lumbar mobility was
restricted 30 percent. (Id.) Dr. Moosazadeh
diagnosed
a
cervical/lumbar
spine
sprain/strain, but he ruled out a herniated
disc or radiculopathy. (Id.) He also found a
left shoulder injury, but he ruled out a
traumatic instability or impingement. (Id.)
On June 30, 2010, Dr. Moosazadeh
reiterated most of his findings and diagnoses
and stated that Hart “is considered totally
disabled and also based on chronicity of his
condition, he has permanent, mild, partial
disability.” (Id. at 356.)

The record evidence for after this period
is immaterial to the Court’s analysis.
3.

The Administrative Hearing

Plaintiff testified before the ALJ on
February 2, 2011. Plaintiff said his pain
occurred in his lower back, going down his
left buttock and into his leg. (Id. at 83.) He
also had pain from his neck, through his left
shoulder, into his left arm. (Id.) Plaintiff said
he could barely walk one block without
experiencing pain. (Id.) He also could not
stand for more than 10 or 15 minutes, could
not bend or kneel, and could sit for only 20
minutes at a time. (Id. at 85–86.) The most
he could lift was 5 pounds. (Id. at 92) He
had trouble moving his head side to side,
and could not rotate his neck more than 45
degrees. (Id. at 95.)

On July 6, 2010, Dr. Anthony Spataro,
an orthopedic surgeon, performed an
independent medical examination for the
Workers’ Compensation Board. (Id. at 345.)
He found that plaintiff’s cervical spine was
limited to 10/40 degrees of lateral flexion
bilaterally, 15/70 degrees of rotation
bilaterally, 5/60 degrees of forward flexion,
and 10/30 degrees of flexion. (Id.) There
was a mildly positive Spurling maneuver,
and deep tendon reflexes were diminished
bilaterally. (Id.) Sensation was diminished
bilaterally, and motor function was 4/5 in
both upper extremities. (Id.) The
thoracolumbar spine was limited to 20/90

At a supplemental hearing on August 11,
2011, the ALJ called Jennifer Dizon to
testify as a vocational expert. (Id. at 43.)
Dizon testified that plaintiff’s past relevant
work was classified in the Dictionary of
Occupational Titles as a railroad conductor,
7

the SSA as of July 6, 2010.2 (Id. at 13–28.)
The Appeals Council denied plaintiff’s
request for review on February 28, 2013.

which is light in exertion, and has a specific
vocational preparation of eight, which is
skilled. (Id. at 45.) Plaintiff’s skills,
including
speaking,
communicating,
gathering correct information, writing,
problem solving, identifying specific
problems, and monitoring the operation of a
vehicle, were transferrable. (Id.) The ALJ
asked the expert whether a person of
plaintiff’s age (44 to 47), education (high
school graduate), and with the residual
functional capacity for sedentary work
would be able to perform plaintiff’s past
relevant work. (Id. at 46–47.) Dizon testified
that the person could not perform the prior
work with those functional restrictions. (Id.
at 47.) Next, the ALJ asked whether a
person could perform plaintiff’s past
relevant work where the person was limited
to moving his neck less than 45 degrees,
could not write repetitively, could not
perform overhead activities with his left
hand, and was limited to lifting and carrying
less than five pounds, and who could not
climb, balance, stoop, kneel, crouch, or
crawl, but who could sit for six hours, and
stand and walk for two hours per day. (Id. at
48–49.) The expert testified that such a
person could not perform plaintiff’s past
relevant work or any other jobs. (Id. at 49.)

Plaintiff commenced this action on April
23, 2013, appealing the ALJ’s September
14, 2011 decision. The Commissioner
answered on August 26, 2013, and filed the
pending motion for judgment on the
pleadings on November 21, 2013. Plaintiff
also filed a motion for a judgment on the
pleadings on January 2, 2014. Neither party
has filed a reply.
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
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

B. Procedural History
On June 22, 2009, plaintiff applied for
disability insurance benefits, alleging
disability since June 19, 2009. (Id. at 188–
90.) On October 13, 2009, plaintiff
requested an administrative hearing.
Represented by counsel, plaintiff appeared
and testified before the ALJ on February 2,
2011. (Id. at 59–108.) The ALJ held a
supplemental hearing on August 11, 2011.
(Id. at 35–56.) On September 14, 2011, the
ALJ issued a partially favorable decision,
concluding that plaintiff was disabled under

2

8

The Court summarizes the ALJ’s decision infra.

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.

by evidence having rational probative force,
the court should not substitute its judgment
for that of the Commissioner.”).
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:

B. Analysis

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

Plaintiff argues that the ALJ’s decision
is the result of legal error because the ALJ
did not follow the treating physician rule
when she discounted the records and
findings of Dr. Moosazadeh. Plaintiff, in the
alternative, seeks a remand in order to recontact the treating physician and have him
appear before the ALJ. For the reasons set
forth below, the Court concludes that
additional development of the record is
necessary. Specifically, clarification is
needed from the treating physician regarding
his opinion of the disability onset date and
the basis for that determination.
9

approaching the exiting left L2 nerve root
with left foraminal narrowing and L5-S1
grade 1 spondylolisthesis, levoscolios,
chronic cervical and lumbar disc syndrome,
left shoulder derangement, and morbid
obesity. (Id.) Substantial evidence supports
these findings, and plaintiff does not
challenge their correctness.

1. The ALJ’s Decision
Here, in concluding that plaintiff was not
disabled under the SSA until July 6, 2010,
the ALJ adhered to the five-step sequential
analysis for evaluating applications for
disability benefits. (See AR 15–28.)
a. Substantial Gainful Activity

c. Listed Impairment

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. Here, the ALJ determined that
plaintiff had not engaged in substantial
gainful activity since the alleged onset date
of June 19, 2008. (AR 15.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.

At step three, 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).
Here, the ALJ found that none of these
impairments, alone or in combination, met
or medically equaled the severity of the
listed impairments in the Listing of
Impairments, 20 C.F.R. Part 404, Subpart P,
Appendix 1. (AR 16.) Substantial evidence
supports this finding, and plaintiff does not
challenge its correctness.

b. Severe Impairment

d. Residual Functional Capacity

At step two, if the claimant is not
employed, the ALJ 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.

At step four, having found that that the
severe impairments did not meet or equal a
listed impairment, the ALJ assessed 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). At this stage, the ALJ must
then determine 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.

Here, the ALJ found that plaintiff had
the following severe impairments diagnosed
prior to July 6, 2010: low back pain, a
cervical spine sprain/strain, and a left
shoulder sprain strain, but no herniated disc,
radiculopathy, or rotator cuff tear. (AR 15.)
The ALJ further stated that as of July 6,
2010, the diagnoses were chronic low back
pain, lumbar disc herniations at L2-L3

In this case, the ALJ found that, prior to
July 6, 2010, plaintiff “had the residual
functional capacity to perform the full range
of sedentary work as defined in 20 CFR
10

404.1567(a). . . . However, as of July 6,
2010, claimant did not have a residual
functional capacity for a full range of
sedentary work” and could not perform any
past relevant work for the period in
question.3 (AR 16, 26.) According to the
ALJ, before July 6, 2010, plaintiff could sit
for six hours in an eight-hour day, stand and
walk for two hours, and lift ten pounds
occasionally. (Id. at 16.) As of July 6, 2010,
however, plaintiff could not sit, stand, or
walk for more than four hours in an eight
hour day; could not lift more than ten
pounds frequently; could only occasionally
reach overhead with his left dominant hand;
could only occasionally reach, handle,
finger, feel, push, or pull with his dominant
left hand; and could not walk a block at a
reasonable pace on rough and uneven
surfaces. (Id.) In reaching this conclusion,
the ALJ performed a lengthy recitation of
the medical evidence, and concluded that,
“prior to July 6, 2010, the record does not
contain objective medical evidence of
physical limitations so severe that they
would prevent the claimant from performing
a full range of sedentary work.” (Id. at 20.)

not reveal the reason for plaintiff’s severe
restriction of mobility. (Id.)
The ALJ first cited Dr. McIntyre’s
reports in 2008 and 2009, none of which
concluded that plaintiff “was totally limited
from all work activity,” rather than only his
past work as a conductor. (Id. at 21.) The
ALJ also noted that Dr. Moosazadeh’s notes
and report from July 2008 suggested a
cervicolumbar spine sprain/strain, a left
shoulder
sprain/strain,
traumatic
impingement, and a rotator cuff tear, but “at
no time was it found that claimant had more
than a sprain/strain.” (Id.) The rotator cuff
tear and herniations were not established.
(Id.) In addition, the September 2008 MRI
indicated a mild lumbar levoscoliosis and a
L5-S1 broad based disc bulge only. (Id.)
According to the ALJ, this and other
medical evidence, such as the reports from
Dr. Merola and Dr. Fernando in July and
August 2009, respectively, established that
none of the diagnoses through at least late
2009 supported a finding of total disability.
(See id. at 21–22.) The MRI of the lumbar
spine in December 2009 first established a
left neural foraminal disc herniation with
associated left neural foraminal narrowing, a
grade 1 spondylolisthesis and disc bulge,
and levoscoliosis. (Id. at 22.)

The ALJ found that plaintiff’s assertions
concerning his symptoms and limitations
were not corroborated by objective medical
evidence before July 6, 2010. (Id. at 23.)
The ALJ reasoned that “[p]rior to the found
onset date, other than claimant’s subjective
complaints of pain, there was no evidence
that [his sprains/strains] resulted in
limitations so severe that the claimant could
not engage in any work activity.” (Id.) She
noted that Dr. Fernando’s examination did

The ALJ then accorded significant
weight to Dr. Spataro’s analysis on July 6,
2010, and his opinion that plaintiff had
reached his maximum medical improvement
and that he had a permanent total disability.
(Id. at 23, 26.) The ALJ reasoned that Dr.
Spataro’s report provided objective evidence
of plaintiff’s functional limitations and
neurological deficits. (Id. at 23.) On the
other hand, the ALJ gave “less than great or
controlling weight” to Dr. Moosazadeh, and
especially his April 20, 2010 assessment.
(Id. at 25; see id. at 22.) She found that Dr.
Moosazadeh did not supply the degree of the
positive straight leg raising test or the

3

“[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)).

11

20 of the Code of Federal Regulations. The
ALJ found that (1) before July 6, 2010, there
was work in the national economy which
plaintiff could perform, based on MedicalVocational Rule 202.21; and (2) after July 6,
2010, there were no jobs that plaintiff could
perform, and therefore that plaintiff was
disabled. (AR 27–28.)

limitations of the lumbar back and shoulder,
presented no objective neurological findings
to support the opinion that plaintiff was
restricted to less than a full range of
sedentary work, and “merely opined without
providing findings to support the opinion
that the claimant was unable to do overhead
activities with his left shoulder and could
not push, pull or lift more than 5 pounds.”
(Id. at 22.) The ALJ compared Dr.
Moosazadeh’s findings of a sprain/strain to
Dr. Spataro’s extensive observations
regarding the “objective degrees of
limitations of the back and shoulder [and]
neurological deficits of sensory and motor.”
(Id. at 25.)

2. Treating Physician Rule
Plaintiff argues the ALJ failed to accord
the proper weight to his treating physician,
Dr. Moosazadeh. The Court agrees that the
ALJ should have re-contacted Dr.
Moosazadeh to help clarify his medical
opinion, and remands the case on this basis.

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. See Branca
v. Comm’r of Soc. Sec., No. 12-CV-643
(JFB), 2013 WL 5274310, at *11 (E.D.N.Y.
Sept. 18, 2013).

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 physician 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:

e. Other Work
At step five, if the claimant is unable to
perform her 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).

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

Here, 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
12

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.

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.
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.”).

Moreover, the lack of specific clinical
findings in the treating physician’s report, in
and of itself, is insufficient to support an
ALJ’s failure to credit the treating
physician’s opinion. Schaal, 134 F.3d at
505; accord Clark, 143 F.3d at 118.
“Furthermore, the ALJ has the duty to
‘recontact’ a treating physician for
clarification if the treating physician’s
opinion is unclear.” Stokes v. Comm’r of
Soc. Sec., No. 10-CV-0278 (JFB), 2012 WL
1067660, at *11 (E.D.N.Y. Mar. 29, 2012)
(quoting Ellett v. Comm’r of Soc. Sec., No.
1:06–CV–1079 (FJS), 2011 WL 1204921, at
*7 (N.D.N.Y. Mar. 29, 2011)); see also
Mitchell v. Astrue, No. 07 Civ. 285(JSR),
2009 WL 3096717, at *17 (S.D.N.Y. Sept.
28, 2009) (“If the opinion of a treating
physician is not adequate, the ALJ must
‘recontact’ the treating physician for
clarification.”
(citing
20
C.F.R.
§§ 404.1512(e), 416.912(e)). Such an
obligation is linked to the ALJ’s affirmative

When the Commissioner decides that the
opinion of a treating physician should not be
given controlling weight, she must “give
good reasons in [the] notice of determination
or decision for the weight [she] 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
significant weight because the treating
source is inherently more familiar with a
claimant’s medical condition than are other
sources.” (internal citation and quotation
13

duty to develop the record.4 See Perez, 77
F.3d at 47.

conducted numerous tests during his
treatment of plaintiff, including tests noting
tenderness in the paravertebral muscles of
the lumbar and cervical spines, lower
extremity tension sign tests demonstrating
tightness of the hamstrings, lumbar mobility
testing, straight leg raise testing, axial
compression tests, Spurling sign tests,
Hawkins tests, and impingement tests of the
left dominant shoulder. (See AR 240–336.)
Moreover, Dr. Moosazadeh ordered and
reviewed several MRI reports of the left
shoulder and lumbar spine. (Id. at 243–44,
337.) Throughout his treatment of plaintiff,
Dr. Moosazadeh consistently noted that
plaintiff was disabled from his employment.
(E.g., id. at 240–42, 282.) Given Dr.
Moosazadeh’s longstanding treatment of
plaintiff and the physical examinations and
tests that he performed, the ALJ should have
recontacted Dr. Moosazadeh before
rejecting his opinion because he did not
supply sufficient objective medical findings.
The need for a remand is especially
appropriate here because, although the ALJ
determined that plaintiff became totally
disabled only as of July 6, 2010, based upon
the examination and accompanying report of
Dr. Spataro, there is no specific intervening
event that would provide a clear explanation
as to how Hart’s condition worsened as of
that specific date. Thus, in light of the ALJ’s
conclusion that Dr. Moosazadeh’s opinion
lacked sufficient objective findings, a
remand is necessary so that Dr. Moosazadeh
can be recontacted and be given the
opportunity to supplement the record with
any additional objective findings or bases
for his longstanding opinion regarding
plaintiff’s onset date. Once Dr. Moosazadeh
is recontacted and given that opportunity,
the ALJ can again examine Dr.
Moosazadeh’s opinion in light of all the
evidence in the record, including Dr.
Spataro’s and Dr. McIntyre’s respective
findings. See Schaal, 134 F.3d at 505

b. Analysis
Having carefully reviewed the record,
the Court concludes that Dr. Moosazadeh’s
April 20, 2010 evaluation, and subsequent
opinions regarding plaintiff’s disability are
unclear and require further clarification. It is
evident that the ALJ also found Dr.
Moosazadeh’s opinions to be unclear, as she
noted that Dr. Moosazadeh “did not supply
sufficient objective medical findings,” and
that “there were no neurological findings of
sensory or motor loss and deep tendon reflex
loss” until Dr. Spataro’s analysis. (AR 25.)
Instead, the ALJ gave more weight to Dr.
Spataro’s July 8, 2010 analysis. Because of
the conflict in the record between Dr.
Spataro’s opinion and Dr. Moosazadeh’s
opinion, the Court cannot conclude, as
plaintiff urges, that the ALJ was required to
give controlling weight to Dr. Mossazadeh’s
opinion.
However, the ALJ misapplied the
treating physician rule, under the particular
circumstances of this case, because she did
not recontact the treating physician for
clarification of the reasons for the opinion.
As noted above, the lack of specific clinical
findings is, by itself, not a sufficient basis to
ignore the treating physician’s opinion.
Here, Dr. Moosazadeh treated the plaintiff
for an extended period of time, beginning on
July 8, 2008. He performed physical
examinations each time he saw plaintiff, and
4

It is well established that the ALJ must
“‘[a]ffirmatively develop the record’ in light of ‘the
essentially non-adversarial nature of a benefits
proceeding.’” Tejada v. Apfel, 167 F.3d 770, 774 (2d
Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996)). The ALJ’s regulatory obligation to
develop the administrative record exists even when
the claimant is represented by counsel or by a
paralegal at the hearing. Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999).

14

IV.

(“[E]ven if the clinical findings were
inadequate, it was the ALJ’s duty to seek
additional information from [the treating
physician] sua sponte.”); see also
Papadopoulos v. Astrue, No. 10 Civ.
7980(RWS), 2011 WL 5244942, at *8
(S.D.N.Y. Nov. 2, 2011) (“Because ‘further
findings’ would so plainly help to assure the
proper disposition of [plaintiff’s] claim,
remand is appropriate in this case.” (quoting
Pratts, 94 F.3d at 39)); Taylor v. Astrue,
No. CV-07-3469, 2008 WL 2437770, at *3
(E.D.N.Y. June 17, 2008) (“[A]lthough an
ALJ may elect not to assign controlling
weight to the opinion of a treating physician
where it is not well-supported by objective
evidence, before reaching this conclusion,
‘the adjudicator must make every reasonable
effort to recontact the [treating physician]
for clarification of the reasons for the
opinion.’” (quoting Soc. Sec. Ruling 96-5p,
1996 WL 374183, at *6 (S.S.A. July 2,
1996))); Ewald v. Comm’r of Soc. Sec., No.
CV-05-4583 (FB), 2006 WL 3240516, at *2
(E.D.N.Y. Nov. 9, 2006) (“[E]ven if correct
evaluation of the medical records revealed
inadequate support for [the treating
physician’s] opinion, the ALJ’s duty was to
recontact [the treating physician] . . . to fully
develop the record.”).

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: September 30, 2014
Central Islip, NY
***
Plaintiff is represented by Michael Brangan
of Sullivan & Kehoe, 44 Main Street, Kings
Park, NY 11754. The Commissioner is
represented by Loretta E. Lynch, United
States Attorney, Eastern District of New
York, by Vincent Lipari, 610 Federal Plaza,
Central Islip, NY 11722.

In sum, the Court concludes that
clarification from Dr. Moosazadeh was
necessary to assist the ALJ in determining
the date of total disability. In light of the
ALJ’s affirmative duty to develop the record
and the need to clarify the bases for Dr.
Moosazadeh’s opinion regarding the onset
date of the total disability, the ALJ had a
duty to recontact Dr. Moosazadeh. On
remand, the ALJ is directed to recontact Dr.
Moosazadeh for clarification of his opinions,
and, to the extent necessary, further develop
the record to obtain any additional
information regarding plaintiff’s condition
during the relevant time period.
15