Noutsis v. Colvin

Filing 20

ORDER denying 10 Motion for Judgment on the Pleadings; granting in part and denying in part 15 Motion for Judgment on the Pleadings For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is denied. Plaint iff's cross-motion for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Ordered by Judge Joseph F. Bianco on 2/10/2016. (Shea, Zoe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-5294 (JFB)

_____________________
LISA NOUTSIS,
Plaintiff,
VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
February 10, 2016

___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Lisa Noutsis (“Noutsis” 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
defendant, the Acting Commissioner of Social
Security (“defendant” or “Commissioner”),
denying plaintiff’s application for disability
insurance benefits (“DIB”) beginning on
March 1, 2011. An Administrative Law Judge
(“ALJ”) found that plaintiff had the capacity to
perform the full range of light work required by
her past relevant job as a waitress, and was
therefore not disabled. The Appeals Council
denied Noutsis’ request for review on July 16,
2014.
The Commissioner 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,

remand. She argues that (1) the ALJ erred by
failing to accord the proper weight to the
opinion of plaintiff’s treating physician, (2) the
ALJ erred by failing to properly evaluate
plaintiff’s credibility, and (3) the Appeals
Council erred by failing to consider new and
allegedly material evidence.
For the reasons set forth herein, the Court
denies the Commissioner’s motion for
judgment on the pleadings, denies plaintiff’s
cross-motion for judgment on the pleadings,
and grants plaintiff’s motion to remand.
Accordingly, the case is remanded to the ALJ
for further proceedings consistent with this
Memorandum and Order. Remand is warranted
because the ALJ did not evaluate Dr. Essman’s
opinion according to the various factors that
must be considered in determining how much
weight to give a treating physician’s opinion.
Although the ALJ cited other medical evidence
in support of its position, it did not apply all of
the required factors or specifically explain how

the other evidence undermined the treating
physician’s opinion regarding plaintiff’s
inability to work. Accordingly, remand is
warranted.1

(Id. at 251.) X-rays of plaintiff’s right elbow
showed calcification in the soft tissue, which
Dr. Tiger concluded represented potential
calcific bursitis. (Id. at 272.) X-rays of
plaintiff’s lumbosacral spine showed scoliosis
convexed to the left, with degenerative changes
and narrowing on several vertebrae. Id. X-rays
of plaintiff’s knees showed early osteoarthritic
changes with tibial spine prominence and some
mild patellofemoral narrowing. Id. X-rays of
her hands and wrists were essentially within
normal limits. Id.

I. BACKGROUND
A. Factual Background
The following summary of the relevant
facts is based upon the Administrative Record
(“AR”) as 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 January 7, 2010, plaintiff saw Dr. Tiger
and received X-rays and laboratory tests. (Id. at
258-60.) The X-rays showed hypertrophic
osteoarthritic changes at several distal
interphalangeal (DIP) joints in her hands and
early osteoarthritic changes with some tibial
spine
prominence
and
patellofemoral
narrowing in her knees. (Id. at 258.) On January
12, 2010, laboratory tests revealed a positive
rheumatoid factor of 33. (Id. at 260.)

1. Personal and Work History
Plaintiff was born in 1960 (AR at 158), and
has a high school education. (Id. at 59.) She
worked as a waitress and server in a deli for
approximately eleven years, from 2000 until
March 2011. (Id. at 187.) As a server, her duties
included taking orders over the phone and in
person, serving customers, and preparing
platters. (Id. at 59-60.)

On August 13, 2010, plaintiff visited Dr.
Tiger again and received additional X-rays. (Id.
at 255.) The X-ray of her lumbar spine revealed
scoliosis with convexity to the left,
degenerative changes in multiple levels, and
patent sacroiliac joints. Id.

2. Medical History
a. History Before Alleged Onset Date

On November 29, 2010, plaintiff was
evaluated by neurologist Dr. Shicong Ye. (Id.
at 275-76.) She complained of right knee and
foot problems, left foot pain, movement at the
back of her head, a lightening sensation of her
left visual field, numbness at the corners of her
mouth, difficulty concentrating, and trouble
speaking. (Id. at 275.) A neurological
examination showed cranial nerves II through
XII to be intact. Id. Plaintiff’s face was
symmetric and she had full eye movement in
all directions. Id. Her pupils were equal and

Plaintiff visited Dr. Louis Tiger for a
rheumatology consultation on October 21,
2005. (Id. at 250-51.) Dr. Tiger noted that
plaintiff began experiencing joint pain at age
twenty-one, conducted a physical examination,
and assessed possible osteoarthritis and
fibromyalgia. (Id. at 250-51.) Dr. Tiger’s
physical examination of plaintiff’s extremities
and joints revealed mild crepitation on motion
of the knees, tenderness at the right radial head,
and trigger areas on her arms, back, and legs.

1

As discussed, infra, on remand, in addition to
evaluating Dr. Essman’s opinion according to the
treating physician rule, the ALJ should also consider

the new evidence from Dr. Stein and re-assess the
credibility of plaintiff’s testimony.
2

287-93.) Plaintiff complained of back, knee,
hand, shoulder, and right arm pain. (Id. at 287.)
Plaintiff reported that she had arthritis for the
last five years and had been diagnosed with
fibromyalgia because of burning pain in her
right shoulder and left neck, and that she had
difficulty standing for long periods of time,
walking long distances, bending over, and
climbing stairs. (Id. at 287.) Dr. Manyam noted
that plaintiff reported the pain was relieved by
medication. Id. It was documented that plaintiff
had no hospital admissions, surgeries, or
significant mental illnesses, and her current
medications were Amitripyline, Naproxen, and
Oxycodone. (Id. at 288.)

reactive to light, her tongue was midline, and
she had a positive gag. Id. There was full
muscle strength in all extremities, deep tendon
reflexes were symmetric, her finger-to-nose
coordination was normal, her Bilateral
Babinski test was negative, deep and
superficial sensations were normal, and gait
and station were normal. Id. Dr. Ye
recommended magnetic resonance imaging
(“MRI”) of the brain without contrast. Id.
On January 31, 2011, plaintiff returned to
Dr. Ye for a follow-up appointment. Dr. Ye
evaluated the MRI, and found that the MRI
revealed a small 5mm focal lesion on the left
side of the brain anterior to the left lentiform
nuclei and possible 1mm to 2mm right and left
focus superior frontal lesions. (Id. at 274.) Dr.
Ye rendered no treatment at the time and
suggested another MRI in six months to ensure
the lesion did not progress or change. Id.

Dr. Manyam reported plaintiff’s daily
activities included cooking two or three times a
week, laundering twice a week, showering and
dressing herself every day, watching television,
listening to the radio, socializing with friends
and walking, but not far. Id. Dr. Manyam noted
plaintiff was well-nourished, not in acute
distress, had a normal gait, could walk on heels
and toes normally and fully squat, had a normal
stance, needed no assistance to walk, change
for an exam, or to rise from chair. Id. Plaintiff’s
skin, lymph nodes, head, face, eyes, ears, nose,
throat, chest, lungs, heart, and abdomen were
all normal. (Id. at 288-89.) Dr. Manyam found
no scoliosis, kyphosis, or abnormally thoratic
spine. (Id. at 289.) Plaintiff had decreased
motion in her right shoulder and full range of
motion in all other areas tested. Id. Her
neurologic extremities and fine motor activity
were normal as well. (Id. at 289-90.) X-rays of
plaintiff’s
lumbosacral
spine
showed
degenerative changes and scoliosis, and X-rays
of plaintiff’s knees showed no significant bony
abnormality. (Id. at 290.) Dr. Manyam
diagnosed plaintiff with multiple joint pain
with no positive signs from examination and a
history of fibromyalgia with no trigger points.
Id. Dr. Manyam concluded that plaintiff’s
prognosis was good and that plaintiff had no
physical limitations. Id.

b. History After Alleged Onset Date
On March 3, 2011, plaintiff was seen in the
emergency room at St. Joseph’s Hospital for
right ankle pain after a fall. (Id. at 320; see Tr.
319-330.) Plaintiff was given a splint and
crutches, prescribed Motrin, and discharged
that same day. (Id. at 321-22.)
On April 14, 2011, she was diagnosed with
a right ankle fracture by her physician, Dr.
Louis Essman, an internist who had been
treating her since July 2010 for rheumatoid
arthritis and fibromyalgia. (Id. at 313, 316.)
Following the ankle fracture, plaintiff
continued to see Dr. Essman for right ankle
pain, left knee pain, carpal tunnel syndrome,
and fibromyalgia through June 16, 2011. (Id. at
62, 316.)
On September 8, 2011, Dr. Ammaji
Manyam, also an internist, performed a
consultative exam of the plaintiff at the request
of the Social Security Administration. (Id. at
3

moderate (a 5 out of 10). (Id. at 297.) He also
noted that plaintiff’s pain was not completely
relieved with medication. Id.

On September 22, 2011, Dr. Essman
completed a report at the request of the Social
Security Administration, indicating he had
been treating plaintiff since July 2, 2010, and
had seen her most recently on September 7,
2011. (Id. at 281.) He diagnosed plaintiff with
rheumatoid arthritis, back pain, knee pain,
headaches, vertigo, fibromyalgia, and carpal
tunnel syndrome, indicated her primary
symptoms were pain and dizziness, and her
treatment
included
the
medications
Oxycodone, Amitriptyline, and Naprosyn. (Id.
at 281-282.) He noted plaintiff needed no
assistive device to walk, but had some
decreased mobility. (Id. at 283.) Plaintiff could
frequently lift up to ten pounds, could stand
and/or walk less than two hours a day, and
could sit less than six hours a day. Id. Dr.
Essman wrote that plaintiff had fractured her
right ankle and had a positive rheumatoid
factor. (Id. at 284.) Dr. Essman recorded
decreased mobility in plaintiff’s elbow flexionextension, elbow supination, elbow pronation,
knee fexion-extension, hip forward flexion, hip
rotation-interior, hip rotation exterior, spine
cervical region extension, spine lumbar region
flexion-extension, and ankle plantar-flexion.
(Id. at 285-86.)

Dr. Essman documented the plaintiff’s
significant limitations in reaching, grasping,
turning, and twisting due to rheumatoid
arthritis in her hands, as well as the fact that
plaintiff could sit for only two hours at a time
and could stand or walk for less than one hour
in an eight-hour work day. (Id. at 298-99.) He
reported that plaintiff’s symptoms were
frequently severe enough to interfere with
attention and concentration. (Id. at 300.) He
listed her medications as Oxycodone,
Naproxen, and Elavil, and recommended
physical therapy. (Id. at 299.) Dr. Essman
concluded that plaintiff could not work full
time in a competitive job requiring sustained
activity, that her impairments would last at
least twelve months, that she was not a
malingerer, and that she was capable of
tolerating moderate work stress. (Id. at 300.)
Finally, he wrote that the plaintiff would need
to take unscheduled breaks from work, would
likely miss work more than three times a
month, and could not push, pull, kneel, bend or
stoop. (Id. at 301.)
On October 31, 2011, Dr. Thien Huynh
conducted a consultative examination. (Id. at
304-06.) Plaintiff complained of narrow
angles, and reported seeing black dots in her
left eye and having difficulty driving at night
due to increased glare, though she did not
report experiencing eye pain or irritation. (Id.
at 304.) Plaintiff was status post laser
peripheral iridotomies in both eyes, and her
angles remained narrow despite the laser
procedures. Id. Based on his examination, Dr.
Huynh concluded that there was no evidence of
acute or chronic angle closure and plaintiff was
not visually disabled, though she did require
regular monitoring. Id.

On October 17, 2011, Dr. Essman
completed a second Multiple Impairment
Questionnaire. (Id. at 295-302.) Dr. Essman
noted he saw the plaintiff approximately every
six weeks from July 2, 2010 to August 25,
2011. (Id. at 295.) He diagnosed a fractured
ankle, back pain, carpal tunnel syndrome,
rheumatoid arthritis, fibromyalgia, and knee
pain, with primary symptoms of knee pain,
back pain, foot pain, numbness, headaches,
occasional speech problems, and visual
disturbance. (Id. at 296.) The basis for his
diagnoses were a positive rheumatoid factor, a
thyroid ultrasound, and an MRI of the brain. Id.
Dr. Essman rated plaintiff’s pain as moderately
severe (a 7 out of 10) and her fatigue as
4

bending. (Id. at 25.) Dr. Stein indicated that
plaintiff’s pain, fatigue, and other symptoms
would constantly interfere with her attention
and concentration. (Id. at 24.) He stated that the
symptoms and limitations detailed in the
questionnaire were present since July 2, 2010.
(Id. at 25.)

On October 4, 2012, Dr. Essman submitted
an additional questionnaire with similar
clinical findings and diagnoses as contained in
the October 17, 2011 questionnaire. (Id. at 337344.)
On September 12, 2013, following the
decision of the ALJ against plaintiff, plaintiff
was evaluated by Dr. Bruce Stein, a board
certified rheumatologist. (Id. at 29.) Dr. Stein
completed
a
Multiple
Impairment
Questionnaire and submitted a letter on
September 20, 2013. (Id. at 19-26, 29.) He
stated that he had seen plaintiff on September
12, 2013 for joint and lower back pain,
stiffness, and fatigue. Id. Dr. Stein diagnosed
plaintiff with fibromyalgia, rheumatoid
arthritis, carpal tunnel syndrome, and status
post displaced ankle fracture. He found that her
prognosis was fair, and that she was unable to
work indefinitely. Id. His clinical findings
included tender points in plaintiff’s cervical
spine bilaterally, epicondyles, lumbosacral
spine, and bilateral throchanteric bursa. Id.
Plaintiff’s primary symptoms were a history of
generalized pain in her upper and lower
extremities. (Id. at 20.) Dr. Stein noted
plaintiff’s level of pain and fatigue were rated
as moderately severe (an 8 out of 10) and that
the pain was relieved with medication. (Id. at
21.) Dr. Stein agreed with Dr. Essman that
plaintiff was not a malingerer, and experienced
good and bad days. (Id. at 24-25.) According
to Dr. Stein, plaintiff could sit and stand or
walk only two hours in an eight-hour day, and
she could not sit continuously. Id. Plaintiff
could only occasionally lift or carry five
pounds or less. (Id. at 22.) Plaintiff also had
limitations in repetitive reaching, handling,
fingering, lifting, grasping, turning, and
twisting objects. Id. Dr. Stein documented that
the plaintiff’s symptoms would increase in a
competitive work environment and interfere
with her ability to work. (Id. at 23-25.) Plaintiff
would also need to avoid certain activities if
she did work, including pushing, pulling, and

3. Plaintiff’s Testimony at the
Administrative Hearing
Plaintiff testified before the ALJ on
October 12, 2012. (Id. at 56-75.) She testified
that she stopped working when she fell and
broke her ankle in March 2011, but that she had
been struggling with pain and ongoing medical
problems before the fall. (Id. at 62.) Plaintiff
reported that she was in constant pain and that
her condition had worsened over time. (Id. at
66-67.) She said she had difficulty leaning over
and getting up from low chairs, and that she
tired quickly when walking and could only
stand for about thirty-five to forty minutes at a
time. (Id. at 66-68.) She said she watches
television during the day and lies down for
about an hour and a half to two hours every day.
(Id. at 69-70.) Plaintiff said she could drive and
run some errands close to home alone, but
could not go grocery shopping without the
assistance of family members. (Id. at 70-71.)
She testified that she could no longer cook
meals or clean the house, which she used to do
before she got sick. (Id. at 71-72.) Plaintiff
further testified that she took Amitriptyline for
approximately fifteen years for fibromyalgia.
(Id. at 72-73.)
Plaintiff testified that she did not work for
a period of time while she was taking care of
her children in the 1990s, but returned to work
in 2000. (Id. at 73.) When asked about her
medical insurance while she was working,
plaintiff said she had a very high deductible
plan making it too expensive for her to see
more than one doctor. (Id. at 63-64.) Plaintiff
testified that she had been seeing Dr. Essman
5

for about three years for her knee, arm, and
wrist pain, and rheumatoid arthritis. (Id. at 6465.) She said that since March 2011, she had to
decrease the frequency of her visits to Dr.
Essman because she no longer had medical
insurance of any kind. (Id. at 64.)

specialist, and Dr. Essman’s treatment regimen
consisted solely of prescription pain
medication. Id. Consequently, the ALJ found
that plaintiff had the residual function capacity
to perform the full range of light work. Id.
Plaintiff requested review of the ALJ’s
decision by the Appeals Council on January 17,
2013, and on September 26, 2014, submitted
Dr. Stein’s conclusions as new evidence. (Id. at
18-28, 37.) On July 16, 2014, the Appeals
Council denied plaintiff’s request, and
determined that Dr. Stein’s evaluation and
conclusions did not pertain to the period of time
between the alleged onset and the ALJ
decision. (Id. at 1-7.) This rendered the ALJ’s
decision the final decision of the
Commissioner. (Id.)

B. Procedural History
Plaintiff applied for DIB on July 28, 2011,
alleging disability since March 1, 2011 due to
back and knee injuries, scoliosis, and
rheumatoid arthritis. (Id. at 158-9, 186.)
Plaintiff’s application was denied on
November 18, 2011, and plaintiff filed a
written request for an administrative hearing on
January 6, 2012. (Id. at 98-109, 110.) On
October 12, 2012, plaintiff appeared with
counsel and testified before the ALJ. (Id. at 5475.)

Plaintiff commenced this appeal on
September 10, 2014. The Commissioner served
the administrative record and filed an answer
on January 9, 2015, and filed the pending
motion for judgment on the pleadings on
March 11, 2015. Plaintiff filed her crossmotion for a judgment on the pleadings on May
13, 2015. The Commissioner filed a reply on
June 10, 2015. The Court has fully considered
the submissions of the parties.

On December 4, 2012 the ALJ issued a
decision finding plaintiff not disabled under the
Act. (Id. at 40-53.) The ALJ concluded that
plaintiff’s lumbar scoliosis and generalized
osteoarthritis of the lumbosacral spine, bilateral
hands, and bilateral knees were clinically
demonstrated in the record, and caused more
than a minimal limitation in the claimant’s
ability to perform basic work duties. (Id. at 45.)
The ALJ also determined that there was no
evidence to support plaintiff’s claims of
fibromyalgia, bilateral carpal tunnel syndrome,
rheumatoid arthritis, post status ankle fracture,
brain lesions, or visual disturbance. Id. The
ALJ found that plaintiff had a history of these
symptoms, but there was no medical evidence
to support the claim that they were active. Id.
The ALJ also concluded that those impairments
found to be credible were not severe enough to
meet the severity requirement for a listed
impairment. (Id. at 46.) The ALJ found that Dr.
Essman’s statements were inconsistent with the
record because they lacked objective signs,
symptoms, and findings, Dr. Essman was not a

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,
6

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

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.

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:

7

B. Analysis

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. 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.

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 erred by failing to accord
the proper weight to the opinion of plaintiff’s
treating physician. As set forth below, the
Court agrees that the ALJ failed to provide
sufficient reasoning for rejecting the opinion of
Dr. Essman, plaintiff’s treating physician, and
remands on this basis.

In this case, the ALJ found that plaintiff had
severe impairments of lumbar scoliosis and
generalized osteoarthritis of the lumbosacral
spine, bilateral hands and bilateral knees. (AR
at 45.) The ALJ found that plaintiff’s claims of
suffering from fibromyalgia syndrome,
bilateral carpal tunnel syndrome, rheumatoid
arthritis, post status ankle fracture, brain
lesions, and visual disturbance were not
supported by the medical evidence. Id.

1. The ALJ’s Decision
In concluding that plaintiff was not
disabled under the SSA, the ALJ adhered to the
five-step sequential analysis for evaluating
applications for disability benefits. (AR at 4349.)
a. Substantial Gainful Activity

For the reasons set forth infra, the Court
finds legal error in the ALJ’s assessment of the
plaintiff’s impairments. Specifically, the ALJ
did not give a sufficient basis for affording
“little credit” to the statements of plaintiff’s
treating physician, Dr. Essman.

At step one, the ALJ must determine
whether the claimant is presently engaging in
substantial gainful activity. 20 C.F.R.
§ 404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical
or
mental
activities,”
id.
§ 404.1572(a), and gainful work activity is
work usually done for pay or profit, id.
§ 404.1572(b). Individuals who are employed
are engaging in substantial gainful activity. In
this case, the ALJ determined that plaintiff had
not engaged in any substantial gainful activity
since the alleged onset date of March 1, 2011.
(AR at 45.) Substantial evidence supports this
finding and plaintiff does not challenge its
correctness.

c. Listed Impairment
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).

b. Severe Impairment
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

At step two, if the claimant is not
employed, the ALJ determines whether the
claimant has a “severe impairment” that limits
his/her capacity to work. An impairment or
8

ALJ, in affording “little weight” to Dr.
Essman’s opinion, failed to evaluate the
various factors that must be considered when
determining how much weight to give to the
treating physician’s opinion. Because of this
error, remand is necessary because the Court
cannot determine whether substantial evidence
supports the ALJ’s 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).

46.) Substantial evidence supports this finding
and plaintiff does not challenge its correctness.
d. Residual Functional Capacity
If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses the
claimant’s residual functional capacity, 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 or her 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 or her past relevant work, he or she
is not disabled. Id.

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).

In this case, the ALJ found that plaintiff had
the residual functional capacity to perform “the
full range of light work” (AR. at 46), and that
plaintiff “is capable of performing [her] past
relevant work as a server/waitress” (id. at 49).
The ALJ concluded that the plaintiff’s residual
functional capacity assessment “is consistent
with the minimal x-ray evidence, the minimal
objective signs, symptoms and findings
demonstrated at the internal consultative
examination, and the minimal objective
findings of Dr. Essman’s own notes.” (Id. at 4849.) The ALJ found that plaintiff’s allegations
and testimony were not “completely credible”
and gave “little weight” to the opinion of
plaintiff’s treating physician, Dr. Essman,
finding his opinion “inconsistent with the
treatment evidence” and “entirely lacking in
objective signs, symptoms, and findings.” (Id.
at 46-49.) The ALJ did not specify how much
weight was given to the opinion of Dr.
Manyam.

This case did not reach this step because the
ALJ concluded the plaintiff could perform her
past relevant work as a waitress. (AR at 49.)
2. Treating Physician Rule
Plaintiff argues, among other things, that
the ALJ failed to accord the proper weight to
her treating physician, Dr. Essman. The Court
agrees that the ALJ failed to apply the proper
standard for evaluating the medical opinion of
Dr. Essman, and remands the case on this basis.
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

For the reasons set forth infra, the Court
finds that there were legal errors in connection
with the ALJ’s assessment of plaintiff’s
residual functional capacity and ability to
perform past relevant work. Specifically, the
9

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
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.

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 v. Callahan, 168 F.3d 72, 78-79 (2d
Cir. 1999); Clark, 143 F.3d at 118. The rule, as
set forth in the regulations, 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 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.”).

10

b. Analysis
In particular, the ALJ did not address
certain of the Halloran 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.
Essman examined, tested, and treated plaintiff
approximately every six weeks for several
years. (AR at 64.) 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)).

The Court finds that the ALJ failed to apply
the proper standard for evaluating the opinion
of Dr. Essman, plaintiff’s treating physician.
Specifically, the ALJ did not provide sufficient
reasons for rejecting Dr. Essman’s opinion,
which the ALJ stated it afforded “little weight.”
(AR. at 48.) The ALJ found Dr. Essman’s
opinion to be inconsistent with the treatment
evidence and “lacking in objective signs,
symptoms, and findings,” and discounted Dr.
Essman’s opinion because he was the
plaintiff’s primary care provider, rather than a
specialist. Id.
The Court concludes that the ALJ did not
set forth in sufficient detail the reasons for
affording “little weight” to the treating
physician’s opinion. 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 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–CV–7825(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.”).

Dr. Essman treated plaintiff regularly, and
his opinion cannot be discarded lightly. He
specifically stated that his opinions were based
on clinical and diagnostic evidence, including
plaintiff’s medical history, blood work
showing plaintiff had a positive rheumatoid
factor, a thyroid ultrasound, and an MRI of
plaintiff’s brain. (AR. at 281-86; 295-302.) The
ALJ dismissed Dr. Essman’s opinion as worthy
of “little weight” because he is the plaintiff’s
“primary care provider” and not “a
rheumatologist nor other specialist.” (AR at
48.) Instead, the ALJ appears to have credited
Dr. Manyam’s opinion, even though Dr.
Manyam is also an internist and not a specialist,
Dr. Manyam evaluated plaintiff on only one
occasion, and it is unclear whether Dr.
Manyam reviewed plaintiff’s medical records
or the results of plaintiff’s lab tests.2 (Id. at 48.)
To be sure, the opinion of a non-treating

2
The ALJ also appears to have failed to take into
consideration the fact that plaintiff provided testimony
that she received regular treatment from Dr. Essman,
rather than a specialist, because she could not afford to

pay out of pocket to see a specialist. Additionally, the
ALJ does not state how much weight, if any, it gave to
the laboratory and X-ray results from plaintiff’s visits to
Dr. Tiger, a rheumatologist, in 2005 and 2010.
11

physician can be overridden, but only where
the evidentiary record supports that conclusion.
Netter v. Astrue, 272 F. App'x 54, 55-56 (2d
Cir. 2008) (internal quotation marks and
citations omitted). In other words, the ALJ
must be able to point to aspects of the record
that support Dr. Manyam’s contentions,
beyond the contentions themselves. The ALJ
discounted Dr. Essman’s findings, but it is not
clear which clinical findings, or why they were
determined to be inferior to the findings
recorded by Dr. Manyam. Branca, 2013 WL
5274310, at *13; Correale–Englehart v.
Astrue, 687 F.Supp.2d 396, 431 (S.D.N.Y.
2010) (remanding to the Commissioner
because “the ALJ never followed the analytical
path mandated by regulation, which requires
that he discuss the length of treating
relationship, the expertise of the treating
doctors, the consistency of their findings and
the extent to which the record offers support for
some or all of those findings”).

remand is appropriate
determination.3

for

such

a

III. 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

In sum, having carefully reviewed the
record, the Court concludes that the ALJ failed
to adequately explain the reasons for affording
“little weight” to the opinion of the treating
physician in this case. Given the failure to
properly apply the treating physician rule, a

Dated:

February 10, 2016
Central Islip, NY
***

3

Plaintiff also argues that (1) the ALJ failed to properly
evaluate Ms. Noutsis’ credibility; and (2) the Appeals
Council failed to consider new and material evidence
(namely, the new evidence from examining
rheumatologist, Dr. Stein). With respect to the new
evidence, the Second Circuit has made clear that “new
evidence submitted to the Appeals Council following the
ALJ’s decision becomes part of the administrative record
for judicial review when the Appeals Council denies
review of the ALJ’s decision.” Perez v. Chater, 77 F.3d
41, 45 (2d Cir. 1996). The Second Circuit, citing to
C.F.R. § 404.970(b) and § 416.1470(b), further
explained that “[t]he only limitations stated in these rules
are that the evidence must be new and material and that
it must relate to the period on or before the ALJ’s
decision.” Id. Although the Council did not consider that
evidence because it did not believe it related to the period
in question, the Court disagrees. Dr. Stein specifically

concluded that the symptoms and limitations he
described were present since 2010, (AR at 25) and, thus,
the evidence clearly related to the period at issue, before
the ALJ’s decision. If the evidence is new and material
to the period in question, the date of the examination (or
the report) does not preclude consideration by the
Appeals Council. See, e.g., Farina v. Barnhart, No. 04
CV 1299 JG, 2005 WL 91308, at *5 (E.D.N.Y. Jan. 18,
2005) (“The requirement to review new evidence,
however, hinges on whether the report relates to the
period on or before the ALJ’s decision, and not to the
date of the report itself.”). In short, because it appears
that Dr. Stein is opining that the symptoms and
limitations began in 2010, on remand, the ALJ should
also consider this evidence. Similarly, the ALJ, after reapplying the treating physician rule and considering this
new evidence, should also re-assess the credibility of
plaintiff’s testimony.
12

Plaintiff is represented by the Law Office of
Harry J. Binder and Charles E. Binder, P.C.
The Commissioner is represented by Robert S.
Capers, United States Attorney, Eastern
District of New York, by Seth Eichenholtz, 271
Cadman Plaza East, Brooklyn, NY 11201.

13