Correa v. Colvin

Filing 18

ORDER denying 12 Motion for Judgment on the Pleadings; granting 15 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plaintiff's cross-motion fo r judgment on the pleadings is granted to the extent that it seeks a remand. 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 9/19/2014. (Lamb, Conor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-2458 (JFB)
_____________________

MARTA POUERIET CORREA,
Plaintiff,
VERSUS

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
___________________
MEMORANDUM AND ORDER
September 19, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Correa 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 “the
full range” of sedentary work, of which there
were 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
1

Plaintiff also argues that the ALJ erred by failing to
request the testimony of a vocational expert, but the
Court need not decide whether this was error, in light

Federal Rule of Civil Procedure 12(c).
Plaintiff opposes the Commissioner’s motion
and cross-moves for judgment on the
pleadings, alleging that the ALJ’s
determination
of
plaintiff’s
residual
functional capacity was not based on
substantial evidence.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 determined that
plaintiff was capable of performing sedentary
work, despite the absence of any evidence
suggesting that she could sit for the required
six hours per day, and the presence of reports
by two examiners that plaintiff could only sit
of the remand for reevaluation of plaintiff’s functional
capacity, which may involve further development of
the record.

The record suggests that plaintiff
underwent additional medical treatment in
2008, but the parties do not dispute that those
records are unavailable. (Id. at 173.)

for 2-3 hours total in an 8-hour workday. At
the very least, the ALJ was obliged to further
develop the record concerning plaintiff’s
functional abilities and limitations, and
accordingly, a remand on that issue is
warranted.

On April 11, 2011, plaintiff was
examined by Dr. Maan Shikara for
complaints of right arm pain and associated
numbness. (Id. at 153.) She had a lump on
her wrist, which Dr. Shikara diagnosed as a
ganglion cyst, and although her ranges of
motion in all four extremities and her
neurological examination were normal, Dr.
Shikara also assessed herniated discs in the
cervical and lumbar spine. (Id.)

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.

On April 30, 2011, plaintiff underwent
NCV studies which revealed moderate right
sensorimotor median nerve neuropathy at the
wrist, consistent with carpal tunnel
syndrome. (Id. 158-61.) On May 5, 2011,
Dr. Erika Hiby diagnosed carpal tunnel
syndrome (as well as low back pain) and
noted plaintiff’s decreased right-hand grasp.
(Id. at 152.)

1. Plaintiff’s Work History
Plaintiff was born in 1972 in Santo
Domingo (AR at 41, 105), came to the United
States in 1997 (id.), and has an eighth-grade
education (id. at 41-42, 134). She reads,
writes, and understands English, and last
worked as a clerk in two stores, from
approximately 2004 to 2008. (Id. 41-45.)

On referral from Dr. Hiby, plaintiff saw
Dr. Christopher Durant, an orthopedic
surgeon, on June 1, 2011. (Id. at 202-03.) Dr.
Durant also diagnosed right carpal tunnel
syndrome, and plaintiff agreed to have
surgery. (Id.) Dr. Durant performed the
surgery on July 7, 2011, and by July 20, 2011,
plaintiff was observed to be fully capable of
flexing and extending her right fingers. (Id.
at 200.)

2. Plaintiff’s Medical History
Plaintiff was in a car accident on April 25,
2008, and sought treatment in the emergency
room for low-back and chest pain. (Id. at 45,
178-85.) At the time, she had normal ranges
of motion in her neck and back, and the
diagnosis was contusion and motor vehicle
accident trauma. (Id.)

As part of her claim for benefits, plaintiff
was examined on August 15, 2011, by Dr.
Andrea Pollack. (Id. at 162-65.) Plaintiff
told Dr. Pollack that she experienced
constant, strong neck and back pain, with
radiation to her right leg, since the car
accident in 2008. (Id. at 162.) Dr. Pollack
noted plaintiff’s MRI results as well as her
recent carpal tunnel surgery, and performed a
general physical examination of plaintiff.

An MRI of plaintiff’s cervical spine was
performed on June 1, 2008, and it showed a
partial fusion of the C2 and C3 vertebral
bodies, small disc herniations, and a mild left
neural foraminal stenosis. (Id. at 187-88.)
The next day, an MRI of the lumbar spine
revealed a “[t]iny central disc herniation at
L3-L4 without nerve root impingement,” as
well as two bulging discs. (Id. at 186.)
2

(Id. at 162-64.) Plaintiff displayed a normal
range of motion and grip strength (but
positive straight-leg raising), and although
Dr. Pollack observed that plaintiff had a
normal gait and could rise from her chair and
the examination table without difficulty, Dr.
Pollack did not reach any specific functionalcapacity findings.2
(Id.)
Instead, the
“Medical Source Statement” at the end of her
report states that plaintiff “has a moderate
restriction in bending, lifting, carrying,
pushing, pulling and squatting,” as well as in
the use of her right hand. (Id. at 164.) Dr.
Pollack also noted that plaintiff had “a mild
restriction in walking, climbing stairs, and
standing.” Dr. Pollack’s Medical Source
Statement did not discuss the extent of these
restrictions, or define “moderate” or “mild,”
and she made no mention of plaintiff’s
abilities or limitations with respect to sitting.
Her diagnosis was that plaintiff suffered from
“[c]hronic neck to lower back pain with
radiation” as well as “[r]ight hand pain.” (Id.)

impingements, positive straight-leg raising,
range of motion tests, and plaintiff’s reports
of pain. (Id.)
Plaintiff also was examined by Dr. Jean
Futoran on June 28, 2012, who performed
range of motion and straight-leg raising tests,
and whose findings largely matched Lester’s.
Dr. Futoran concluded that plaintiff was only
capable of sitting and standing for 2-3 hours
each in an 8-hour workday, with breaks every
30 minutes, and of lifting 10-15 pounds
occasionally. (Id. at 208-09.) However, Dr.
Futoran’s report was not before the ALJ;
plaintiff submitted it to the Appeals Council
only, which noted that it received the report
and made it part of the record, but did not
explain what, if any, weight the report was
afforded. (Id. at 4-5.)
3. The Administrative Hearing
Plaintiff testified before the ALJ on July
17, 2012. She described “constant” back and
neck pain as a result of the car accident (id. at
46), which made it difficult for her to sit or
stand for longer than 15 minutes, or to walk
for longer than 20 minutes. (Id. at 48.)
Sometimes, she could dress and bathe
herself, but if her back pain was bad enough,
she would have to seek assistance from
family members. (Id. at 48-49.) She had
been visiting Lester, the chiropractor, for
seven months, but did not feel that her
condition was improving. (Id. at 51.) She
could perform many basic household tasks
involving motor skills (id. at 52-54), but
could not take out the trash, vacuum, mop the
floor, go to the movies, or perform gardening,
and could climb stairs slowly. (Id. at 55-58.)
Plaintiff was wearing a back brace during the
hearing. (Id. at 58.)

The next day, August 16, 2011, plaintiff
underwent an x-ray of her lumbar spine,
which confirmed degenerative changes; in
particular, mild degenerative spondylosis at
L4-L5. (Id. at 166.)
At some point in 2011 or early 2012,
plaintiff began seeing a chiropractor,
Michelle Lester. (Id. at 51.) On July 2, 2012,
Lester submitted a “Medical Assessment of
Ability to do Work-Related Activities.” (Id.
at 189.) She reported that, during an 8-hour
workday, plaintiff could carry up to ten
pounds “occasionally,” stand and/or walk for
3 hours, and sit for 2 hours total, with 10minute breaks every hour. (Id. at 189-90.)
These findings were based on signs showing
plaintiff’s cervical compression and
2

However, as discussed below, the initial
decisionmaker on plaintiff’s application for benefits
relied primarily on Dr. Pollack’s report in concluding
that plaintiff was capable of performing sedentary

work. (AR at 167-72.) That conclusion is the only
place in the record where someone, other than the ALJ,
stated that plaintiff was capable of sitting for six hours.

3

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

B. Procedural History
Plaintiff applied for disability insurance
benefits on May 23, 2011, alleging disability
since April 25, 2008. (Id. at 105, 116.) Her
application was denied on September 15,
2011. (Id. at 62.) Plaintiff requested a
hearing, and she testified before the ALJ on
July 17, 2012. (Id. at 38-61.) On July 30,
2012, the ALJ issued a decision concluding
that plaintiff was not disabled, and could
perform “the full range of sedentary work.”
(Id. at 14-21.) Plaintiff requested review of
the ALJ’s decision by the Appeals Council,
which was denied on March 11, 2013. (Id. at
1-5.)

III. DISCUSSION
A. Legal Standard

Plaintiff filed the complaint in this action
on April 23, 2013. Defendant moved for
judgment on the pleadings on January 31,
2014, and plaintiff cross-moved for the same
on February 27, 2014. Neither party filed any
additional brief after their first motion brief,
and the Court has fully considered both briefs
and the entire administrative record.

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).

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

The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. See 20 C.F.R
§§ 404.1520, 416.920. The Second Circuit
has summarized this procedure as follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
4

(quoting Mongeur v. Heckler, 722 F.2d 1033,
1037 (2d Cir. 1983) (per curiam)).

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. Analysis
Plaintiff argues that the ALJ’s decision is
not supported by substantial evidence and is
the result of legal error. As set forth below,
this Court concludes that this case should be
remanded to the Commissioner because the
ALJ erred by concluding that plaintiff was
capable of sedentary work, despite the
absence of any evidence in the record
showing that she was capable of sitting for six
hours per day, and the presence of evidence
from two examiners showing that she could
not.
1. The ALJ’s Decision
a. Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging in
substantial gainful activity. 20 C.F.R.
§ 404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical or mental activities,” id.
§ 404.1572(a), and gainful work activity is
work usually done for pay or profit, id.
§ 404.1572(b). Individuals who are employed
are engaging in substantial gainful activity. In
this case, the ALJ concluded that plaintiff did
not engage in substantial gainful activity
since the onset date of April 25, 2008. (AR at
16.) Substantial evidence supports this
finding, and plaintiff does not challenge its
correctness.

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. See Poupore v. Astrue,
566 F.3d 303, 306 (2d Cir. 2009) (“[T]here is
only a limited burden shift to the
Commissioner at step five. Under the
applicable new regulation, the Commissioner
need only show that there is work in the
national economy that the claimant can do; he
need not provide additional evidence of the
claimant’s residual functional capacity.”)
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.’” Brown, 174 F.3d at 62.

b. Severe Impairment
If the claimant is not employed, the ALJ
then determines whether the claimant has a
“severe impairment” that limits his capacity
to work. An impairment or combination of
impairments is “severe” if it significantly
limits an individual’s physical or mental
5

ALJ relied heavily on the report of Dr.
Pollack, who examined plaintiff on behalf of
the SSA. (Id. at 18.) After reciting the
observations and findings in Dr. Pollack’s
report, the ALJ concluded that “Dr. Pollack’s
evaluation of the claimant is fully consistent
with the conclusion that she is limited to
sedentary work.” (Id. at 18-19.) As is
discussed infra, the Court concludes that this
finding is not supported by substantial
evidence.

ability to perform basic work activities. 20
C.F.R. § 404.1520(c); see also Perez, 77 F.3d
at 46. The ALJ in this case found that plaintiff
had two severe impairments: degenerative
disc disease of the lumbar spine and carpal
tunnel syndrome. (AR at 16.) Substantial
evidence supports these findings, and
plaintiff does not challenge their correctness.
c. 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(d). In this
case, the ALJ found that plaintiff’s
impairments did not meet any of the listed
impairments in the Listing of Impairments,
20 C.F.R. Part 404, Subpart P, Appendix 1.
(AR at 16.) Substantial evidence supports this
finding, and plaintiff does not challenge its
correctness.

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 the claimant can perform. Id.
§ 404.1560(c). In this case, the ALJ
considered plaintiff’s age, education, work
experience, and residual functional capacity,
in connection with the Medical-Vocational
Guidelines set forth at Appendix 2 of Part
404, Subpart P of Title 20 of the Code of
Federal Regulations, and found that plaintiff
has the ability to perform a significant
number of jobs in the national economy. (AR
at 19-20.)

d. Residual Functional Capacity
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
the claimant’s residual functional capacity
“based on all the relevant medical and other
evidence in [the] case record.” 20 C.F.R.
§ 404.1520(e). The ALJ then determines at
step four whether, based on the claimant’s
residual functional capacity, the claimant can
perform her past relevant work. Id.
§ 404.1520(f). When the claimant can
perform her past relevant work, the ALJ will
find that she is not disabled. Id.

The Court disagrees, however, that the
Commissioner carried her burden to
demonstrate that there was substantial
evidence supporting a finding that plaintiff
could perform a significant number of jobs
requiring sedentary work. Likewise, the
Court concludes that the ALJ erred with
respect to plaintiff’s functional capacity.
Although an ALJ is no longer required to
produce affirmative evidence with respect to
a claimant’s functional capacity, see
Poupore, 566 F.3d at 306, the ALJ’s decision

Here, the ALJ determined that plaintiff
was unable to perform her past relevant work,
which was “light” work, but found her
capable of “the full range of sedentary work.”
(AR at 20.) In reaching this conclusion, the
6

must still be supported by substantial
evidence. Here, the Commissioner has failed
to point to substantial evidence to support a
finding that plaintiff is able to perform
sedentary work.

conclusion that the claimant is able to
perform sedentary work.” (AR at 19.) As
noted, Dr. Pollack did not address the
primary requirement of sedentary work—
sitting—at all, and her comments concerning
other requirements were neither “detailed”
nor “extensive.”
Her “Medical Source
Statement,” which is supposed to be a
statement about “what [a claimant] can still
do despite [her] impairment(s) based on the
acceptable medical source’s findings,” 20
C.F.R. § 404.1513(b)(6), stated simply that
plaintiff had a “moderate restriction” with
respect to certain capabilities such as lifting
and using her right hand, and a “mild
restriction in walking, climbing stairs, and
standing.” (AR at 164.) The Second Circuit
has characterized such language as “so vague
as to render it useless in evaluating whether
[a claimant] can perform sedentary work,”
particularly where an examining source has
made a more precise finding. Curry v. Apfel,
209 F.3d 117, 123 & n.3 (2d Cir. 2000); see
also Faherty v. Astrue, No. 11-CV2476(DLI), 2013 WL 1290953, at *14
(E.D.N.Y. Mar. 28, 2013) (remanding where
“the ALJ gave significant weight to
[consulting physician] even though she
acknowledged that his medical source
statement did not contain the terminology
used in the regulations,” and instead
“provided moderate and mild limitations for
certain activities, without stating how long
Plaintiff
could
perform
work-like
activities”); Richardson v. Astrue, 10 CIV.
9356 (DAB)(AJP), 2011 WL 2671557, at

The ALJ’s conclusion was based
primarily on a connection he drew between
Dr. Pollack’s report and the ability to perform
sedentary work.3 However, sedentary work
“[b]y its very nature . . . requires a person to
sit for long periods of time,” Carroll v. Sec’y
of Health & Human Servs., 705 F.2d 638, 643
(2d Cir. 1983), specifically six hours per day,
see Carvey v. Astrue, 380 F. App’x 50, 52 (2d
Cir. 2010). Despite the specificity of that
requirement, the ALJ considered it to be
fulfilled by the report of Dr. Pollack, who did
not mention, much less test or observe,
plaintiff’s capabilities or limitations with
respect to sitting for an extended period. That
alone makes Dr. Pollack’s report an
insufficient basis for the ALJ’s decision. Cf.
Archambault v. Astrue, No. 09 Civ.
6363(RJS)(MHD), 2010 WL 5829378, at *27
(S.D.N.Y. Dec. 13, 2010) (remanding and
characterizing
as
“elusive”
ALJ’s
determination that claimant could sit for six
hours, when primary report relied upon made
no reference to sitting), report and
recommendation adopted, 2011 WL 649665
(S.D.N.Y. Feb. 17, 2011).
The ALJ nonetheless characterized Dr.
Pollack’s report as “detailed” and containing
“extensive findings supportive of a
3

To the extent that the ALJ also relied on plaintiff’s
testimony, he did so with respect to plaintiff’s motor
skills, and not with respect to her ability to sit for
extended periods. In fact, plaintiff testified that she
could only sit for fifteen minutes at a time due to back
and neck pain that was a “ten” on a scale of one to ten;
she would then have to shift to standing and walking
for short periods. (AR at 47-48.) Although plaintiff
also testified that she spends most days “[s]itting
watching T.V. or standing,” (id. at 51), there was no
evidence that she did either for a sustained period of
time as would be required for sedentary work. Cf.

Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 643 (2d Cir. 1983) (“Nor has the Secretary
sustained his burden on the basis of (1) Carroll’s
testimony that he sometimes reads, watches television,
listens to the radio, rides buses and subways, and (2)
the ALJ’s notation that Carroll ‘sat still for the
duration of the hearing and was in no evident pain or
distress.’ There was no proof that Carroll engaged in
any of these activities for sustained periods
comparable to those required to hold a sedentary job.
On the contrary, as far as the record is concerned he
did these things only for short periods.”).

7

*12 (S.D.N.Y. Jul. 8, 2011) (“Consulting Dr.
Tsinis’s conclusion that Richardson’s ability
to sit was ‘mildly to moderately’ impaired . . .
provides no support for ALJ Tannenbaum’s
conclusion that Richardson could perform
sedentary
work.”),
report
and
recommendation adopted, 2011 WL 3477523
(S.D.N.Y. Aug. 8, 2011); Dambrowski v.
Astrue, 590 F. Supp. 2d 579, 584 (S.D.N.Y.
2008) (remanding where ALJ relied on
“vague
and
conclusory
medical
determination”
that
claimant
was
“moderately impaired in activities requiring
lifting, carrying and traveling”).

in a functional capacity assessment
completed by the official who initially denied
plaintiff’s application for benefits, and it is
based almost entirely on Dr. Pollack’s report.
(Id. at 168.)
Because there is no specific observation
or finding in Dr. Pollack’s report which
supports the manner in which the ALJ relied
on it, and no evidence which directly
conflicts with the examiners’ conclusions
that plaintiff could not sit for six hours per
day, the Court concludes that there is not
substantial evidence currently in the record to
support a finding that plaintiff could perform
sedentary work. Cf. Archambault, 2010 WL
5829378, at *27-28 (remanding where two
examining sources determined that plaintiff
could not sit for six hours per day, and onetime consultative examiner on which ALJ
relied “remained notably silent on the extent
of [the plaintiff’s] limitations, and never
referred at all to plaintiff’s ability to sit”).
Likewise, the Commissioner failed to show
that there were jobs in the national economy
which plaintiff could perform.

The ALJ’s reliance on Dr. Pollack’s
report—despite its vague functional findings
and its lack of any specific conclusion about
sitting—is aggravated by the fact that two of
plaintiff’s examiners did reach specific
conclusions regarding sitting.
Michelle
Lester, the chiropractor who plaintiff testified
she had been seeing for seven months (AR at
51), reported that plaintiff could only sit for
two hours in an 8-hour workday, interrupted
by 10-minute breaks every hour. (Id. at 190.)
Likewise, Dr. Futoran4 reported that plaintiff
could sit for 2-3 hours total, interrupted by
breaks every 30 minutes. (Id. at 208.) Both
reports were based on range of motion and
straight-leg raise tests, as well as plaintiff’s
reports of pain, and there is no contrary
conclusion by an examiner anywhere in the
record. In fact, the only statement in the
record suggesting that plaintiff could sit for
six hours, as required for sedentary work, is

To be clear, the Court does not hold that
the ALJ erred with respect to the treating
physician rule. The parties do not dispute
that Lester was not a treating physician,
because she was a chiropractor, and although
plaintiff argues that Dr. Futoran was a
treating physician, nothing in the record
indicates that he was a regular treating
provider, as opposed to a one-time examiner.

4

Although the ALJ could not have considered Dr.
Futoran’s report because it was not submitted until the
Appeals Council stage, the report is now part of the
administrative record for this Court’s review. See
Perez, 77 F.3d at 46 (“When the Appeals Council
denies review after considering new evidence, we
simply review the entire administrative record, which
includes the new evidence, and determine, as in every
case, whether there is substantial evidence to support
the decision of the Secretary.”) Defendant argues that
the Appeals Council properly rejected plaintiff’s
appeal despite Dr. Futoran’s report because, even if it

qualified as “new” and “material” evidence, the report
was similar to Lester’s opinion, which the ALJ had
already rejected. However, the similarity between the
two reports is precisely the reason why this case must
be remanded. The reports corroborate each other, and
their specific findings with respect to sitting are
essentially uncontroverted elsewhere in the record.
Thus, on remand, it is important that the ALJ consider
the opinions of both Lester and Dr. Futoran and, if
necessary, further develop the record in light of their
findings.

8

See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (“The record is insufficient . . . to
compel a conclusion that Dr. Moore is also a
treating physician, because there is no clear
evidence that Dr. Moore’s involvement with
Snell extended beyond Moore’s writing one
letter to the Appeals Council.”).

under the treating physician rule. See 20
C.F.R. § 404.1527(c).
It does not appear that the ALJ (or the
Appeals Council) considered these factors
with respect to Lester or Dr. Futoran. An
ALJ (or even an Appeals Council) cannot
“set [their] own expertise against that of” an
examining medical source, because they are
lay people who are not in a position to know
whether plaintiff’s condition would prevent
her from sitting for six hours per day. Rosa
v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(internal quotation marks and citation
omitted). An example is the ALJ’s assertion
that “[t]he contention that the claimant
cannot sit six hours in an eight-hour workday
is unsupported by significant clinical and
diagnostic findings,” after which the ALJ
points to the use of the word “mild” in the
MRI report and the fact that “the
electrodiagnostic and nerve conduction
velocity studies were entirely normal.” (AR
at 19.) Even granting those assertions to the
ALJ, the Court notes that the ALJ had already
concluded that plaintiff was suffering from a
severe
impairment—degenerative
disc
disease—and the ALJ is simply not better
positioned than an examining doctor or
chiropractor to determine whether even
“mild” degeneration—herniated and bulging
discs which were documented throughout the
record—could cause the severe and constant
pain testified to by plaintiff, and affect her
ability to perform the specific task of sitting
for six hours in an 8-hour work day.5
Because Dr. Pollack did not address that task,
the ALJ’s conclusion lacks a substantial basis
in the medical evidence. Accord McBrayer
v. Sec’y of Health & Human Servs., 712 F.2d
795, 799 (2d Cir. 1983) (“[T]he ALJ cannot

Nonetheless, both Lester and Dr. Futoran
are acceptable sources of medical evidence in
support of plaintiff’s claim, see 20 C.F.R. §
404.1513(a), (d), and their observations are
essentially uncontroverted. Even if Dr.
Futoran does not qualify under the treating
physician rule, he is still an examining
physician. Likewise, Lester’s conclusions
were entitled to greater consideration than the
ALJ afforded them.
Chiropractors are
specifically listed in the regulations as other
“[m]edical sources,” see 20 C.F.R. §
404.1513(d)(1), and courts have concluded
that the opinions of such providers should not
be lightly disregarded where there is a regular
treatment relationship, allowing the provider
to develop the full perspective often
attributed to treating physicians.
See
Losquadro v. Astrue, No. 11-CV-1798(JFB),
2012 WL 4342069, at *15 (E.D.N.Y. Sept.
21, 2012) (“[T]he ALJ must afford some
weight to a treating chiropractor’s
assessment.”); Baron v. Astrue, No. 11 Civ.
4262(JGK)(MHD), 2013 WL 1245455, at
*26 (S.D.N.Y. Mar. 4, 2013) (collecting
cases concerning other non-treating sources);
Acevedo v. Astrue, No. 11 Civ.
8853(JMF)(JLC), 2012 WL 4377323, at *10
(S.D.N.Y. Sept. 4, 2012) (same). The
regulations also state that the Commissioner
will consider the nature, extent, length, and
frequency of a treatment relationship for any
medical source, even if the opinion of that
source is not entitled to controlling weight
5

Likewise, the ALJ’s decision to credit Lester’s
conclusions with respect to lifting, standing, and
walking, while affording little weight to her
conclusion about sitting, lacks a basis in the medical

evidence. In other words, the ALJ did not explain, and
the Court cannot discern, how Dr. Pollack’s report or
any of the clinical and diagnostic findings provide a
substantial basis for that distinction.

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nothing in the record that “a reasonable mind
might accept as adequate to support a
conclusion” that plaintiff could sit for six
hours per day, Perales, 402 U.S. at 401,
especially
considering
the
contrary
conclusions of Lester and Dr. Futoran.

arbitrarily substitute his own judgment for
competent medical opinion.”).
To the extent that the ALJ relied on Dr.
Pollack’s report as “fully consistent” with his
determination that plaintiff could perform
sedentary work, rather than as direct evidence
of it, the Court notes that this was still error.
Courts in this circuit have warned against
reliance on a consulting physician’s report as
“consistent” with the ALJ’s conclusion
where the report is silent on the particular
issue of functional capacity. See, e.g., Rosa,
168 F.3d at 81; Sobolewski v. Apfel, 985 F.
Supp. 300, 315 (E.D.N.Y. 1997). Even
though the ALJ no longer bears the burden to
introduce affirmative evidence of functional
capacity, he must still base his functional
capacity decision on substantial medical
evidence, “using ‘all the relevant evidence in
[the] case record.’” Tankisi v. Comm’r of
Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2012)
(quoting 20 C.F.R. § 404.1545(a)(1)); cf.
Valerio v. Comm’r of Soc. Sec., 08-CV-4253
(CPS), 2009 WL 2424211, at *16 (E.D.N.Y.
Aug. 6. 2009) (“The ALJ seems to have
arrived at [functional capacity] determination
simply by rejecting Dr. Kuiper’s medical
opinion. . . . Significantly, the only RFC
assessments contained in the record were
completed by plaintiff’s treating physicians.
Rejecting expert medical opinion, without
setting forth adequate reasons based on
medical evidence, cannot constitute the
‘substantial evidence’ required to support the
Appeals Council’s conclusions.”). Here, no
evidence in the case record—much less
substantial evidence—showed that plaintiff
could sit for six hours per day, and Dr.
Pollack’s statements with respect to her other
functional limitations were vague. In fact,
those statements could just as easily be
considered “consistent” with plaintiff’s
inability to perform sedentary work,
depending on how one defines a “moderate”
restriction. While reasonable minds could
differ on that question, there is simply

At the very least, if the ALJ was
concerned about the state of the evidence
concerning plaintiff’s functional limitations,
he had an obligation to further develop the
factual record on that issue. See Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 508-09
(2d Cir. 2009) (“[I]t is the rule in our circuit
that the [social security] ALJ, unlike a judge
in a trial, must [on behalf of all claimants] . .
. affirmatively develop the record in light of
the essentially non-adversarial nature of a
benefits proceeding.”) (internal quotation
marks and citations omitted); see also Moran
v. Astrue, 569 F.3d 108, 112-13 (2d Cir.
2009) (“[I]t is the ALJ’s duty to investigate
and develop the facts and develop the
arguments both for and against the granting
of benefits.”). Because he failed to do so, the
ALJ must reevaluate plaintiff’s functional
capacity and further develop the record on
remand if he continues to find the
conclusions of Lester and Dr. Futoran to be
worthy of less than controlling weight.

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IV. CONCLUSION
For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is granted to
the extent that it seeks a remand. 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 19, 2014
Central Islip, NY
***
Plaintiff is represented by Michael Brangan,
Sullivan & Kehoe, 44 Main Street, Kings
Park, NY 11754. Defendant is represented by
Loretta E. Lynch, United States Attorney,
Eastern District of New York, by Jason Peck
and Kenneth Abell, 610 Federal Plaza,
Central Islip, NY 11722.

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