Clark v. Colvin

Filing 23

ORDER denying 14 Motion for Judgment on the Pleadings; granting in part and denying in part 17 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 for judgment on the pleadings is denied, but plaintiff's motion to remand is granted. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/31/2016. (Akers, Medora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-6782 (JFB)
_____________________

FRANCIS P. CLARK,
Plaintiff,
VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
March 31, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Francis Clark (“plaintiff”)
commenced this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“SSA”),
challenging the final decision of the
defendant, the Commissioner of Social
Security
(“defendant”
or
the
“Commissioner”),
denying
plaintiff’s
application for disability insurance benefits.
An Administrative Law Judge (“ALJ”) found
that plaintiff had the residual capacity to
perform sedentary work as defined by 20
C.F.R. § 404.1567(a), with certain
limitations, and that although he was unable
to perform any past relevant work, there were
a number of jobs in the national economy that
he could perform. Therefore, the ALJ
determined that plaintiff was not disabled,
and thus, was not entitled to benefits. The
Appeals Council denied plaintiff’s request
for review.
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 clearly failed to
properly weigh the opinion of the treating
physician, Dr. Schweitzer.
I.
A.

BACKGROUND
Factual Background

The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation of the facts is
contained in the parties’ submissions to the
Court and is not repeated herein.

1.

Personal and Work History

plaintiff perform physical therapy. (Id. at
307.)

Plaintiff was born in 1968, and was 42
years old at the time of the alleged disability
onset date, February 9, 2011. (AR at 43, 68.)
He is a college graduate. (Id. at 43.) Plaintiff
testified that he started work as a police
sergeant in 1998. (Id. at 68.) He has also
worked part-time as a landscaper mowing
lawns. (Id. at 45.) Plaintiff sustained a
shoulder injury in November 2009 (id. at 46),
after which he performed only light duty
police work (id. at 72). As a result of his
shoulder injury, plaintiff had to stop working
in 2011 (id. at 46, 69), though he attempted
to return to work as a landscaper in June and
July of 2012 (id. at 44-45).
2.

In November 2009, plaintiff fell, injuring
his knee and aggravating his shoulder injury.
(Id. at 321.) Plaintiff visited Dr. James
Kipnis on November 9, 2009. (Id.) Dr.
Kipnis noted that “[e]xaminaton of the left
shoulder demonstrates pain with forward
flexion to 90 degrees” and “[t]orn labrum left
shoulder[,] [d]egenerative joint disease left
shoulder.” (Id. at 322.) Dr. Kipnis ordered
an MRI of plaintiff’s left shoulder. (Id.) The
MRI, performed on November 12, 2009,
showed mild to moderate impingement of the
acromial tip, no rotator cuff tear, and mild to
moderate degenerative arthritis. (Id. at 323.)
On November 16, 2009, Dr. Kipnis
diagnosed sprains and strains of the left
shoulder with superior glenoid labrum tear.
(Id. at 319.)

Medical History

On May 31, 1988, plaintiff underwent
corrective surgery for a left anterior recurrent
shoulder dislocation. (Id. at 311.)

On November 27, 2009, Dr. David
Tuckman examined plaintiff’s left shoulder.
(Id. at 325.) Dr. Tuckman informed plaintiff
that there was nothing he could do about
plaintiff’s arthritis.
(Id. at 325-26.)
However, Dr. Tuckman recommended
arthroscopic surgery to stabilize the shoulder.
(Id.)

On October 6, 2008, while apprehending
a suspect, plaintiff was thrown to the ground
and injured his left shoulder. (Id. at 306.) He
was diagnosed with left shoulder
acromioclavicular joint separation. (Id.)
On October 14, October 21, and
November 4, 2008, plaintiff was seen by Dr.
Jack Schweitzer, an orthopedic surgeon, who
confirmed the acromioclavicular joint
separation diagnosis. (Id. at 306-07.) On
November 4, 2008, a magnetic resonance
imaging (“MRI”) of plaintiff’s left shoulder
was performed. (Id. at 318.) Results
provided to Dr. Schweitzer showed a tear of
the posterior glenoid labrum, degenerative
osteoarthritis of the glenohumeral joint
associated with joint effusion, and mild
degenerative hypotrophic changes of the
acromiclavicular joint. (Id.) Dr. Schweitzer
reviewed these results with plaintiff on
November 11, 2008, and recommended that

On January 6, 2010, Dr. Tuckman
performed left shoulder arthroscopy and
Bankart repair. (Id. at 324.)
On October 4, 2010, Dr. Arsen Pankovich
of the Medical Board Police Pension Fund,
found decreased range of motion of
plaintiff’s left shoulder with clicking and
grinding during testing. (Id. at 309.) Dr.
Pankovich also found decreased muscle
strength and atrophy of plaintiff’s left
shoulder. (Id.) However, peripheral pulses
were normal and equal. (Id.) There was
normal range of motion of plaintiff’s elbow,
wrist, joints, and hand. (Id.) Plaintiff
2

reported to Dr. Pankovich that his pain was a
5 on a scale of 1 to 10. (Id. at 308.) Dr.
Pankovich recommended accident disability
retirement. (Id. at 309.)

chiropractic treatments twice a week for neck
pain radiating into his left shoulder and arm
(id. at 260). Dr. Fitzgibbon opined that
plaintiff could lift and carry ten pounds
occasionally, stand and walk less than two
hours a day, and sit less than two hours a day.
(Id. at 263.) Dr. Fitzgibbon opined that
plaintiff had limited ability to push and pull
with his left shoulder. (Id. at 264.)

On November 19, 2010, Dr. Salvatore
Lenzo evaluated plaintiff for complaints of
numbness and tingling in his left hand, and
ordered electrodiagnostic studies. (Id. at
330.) The electromyography was consistent
with left ulnar neuropathy at the left elbow.
(Id. at 305.) Nerve conduction studies
showed slow ulnar nerve conduction across
the left elbow and active denervation in ulnar
innervated left hand and forearm muscles.
(Id.)

On the same date, Dr. Erlinda Austria
performed a consultative orthopedic
examination. (Id. at 277-82.) Dr. Austria
observed that plaintiff walked with a normal
gait; could walk on his heels and toes; could
squat three-fourths of the way; had normal
station; used no assistive device; needed no
help changing his clothes or getting on and
off the examination table; and was able to rise
from the chair without difficulty. (Id. at 278.)
His hand and finger dexterity were intact, and
his grip strength was 5/5 in the right hand and
4/5 in the left hand. (Id.) The cervical spine
exhibited flexion to 40 degrees, extension to
25 degrees, lateral flexion to 35 degrees, and
rotation to 70 degrees. (Id.) There was no
cervical or paracervical pain or spasm. (Id.)
There was limitation of motion of plaintiff’s
elbows and wrists. (Id. at 279.) Strength in
the upper and lower extremities was 5/5 on
the right side and 4/5 on the left side. (Id.)
There was no joint inflammation, effusion, or
instability in the upper extremities. (Id.)
There was no muscle atrophy or sensory
abnormality in the upper extremities. (Id.)
Reflexes were physiologic and equal. (Id.)
Plaintiff’s range of motion of his lumbar
spine was restricted. (Id.) There was no
spinal, paraspinal, sacroiliac, or sciatic notch
tenderness. (Id.) There was no spasm,
scoliosis, or kyphosis of the spine. (Id.)
Straight leg raising was 70 degrees bilaterally
from the supine position. (Id.) Straight leg
raising was 90 degrees bilaterally from the

On January 28, 2011, plaintiff returned to
Dr. Lenzo for a follow-up appointment,
complaining of increasing numbness,
tingling, and weakness in the left hand and
ulna nerve distribution. (Id. at 329.) Dr.
Lenzo noted that “[t]he patient has failed
conservative
management”
and
recommended ulnar nerve surgery. (Id.)
Between January and November 2011,
Dr. James Fitzgibbon, a chiropractor,
provided
plaintiff
with
chiropractic
treatments. (Id. at 301-03.)
On February 16, 2011, plaintiff
underwent surgery for compression of the left
ulnar nerve and medial epicondylitis of the
left elbow. (Id. at 258-59, 327-28.)
The record reflects that Dr. Lenzo
prescribed plaintiff Hydrocodone, a narcotic
pain medication.1 (Id. at 197.)
In a report for the New York State Office
of Temporary and Disability Assistance
dated May 27, 2011 (id. at 260-66), Dr.
Fitzgibbon reported that plaintiff received
1

The record does not reflect when Dr. Lenzo
prescribed this medication.

3

sitting position. (Id.) There was limitation of
motion of the hips and knees. (Id.) There
was full range of motion of the ankles
bilaterally. (Id.) X-rays of the cervical spine
showed straightening. (Id. at 279, 282.) Xrays of the lumbosacral spine showed
degenerative changes. (Id. at 279, 281.) Dr.
Austria opined that plaintiff had mild
restriction to activities of the head and neck;
mild to moderate restrictions to activities
involving the left shoulder with limited range
of motion; moderate restriction to activities
involving the left elbow; and mild to
moderate restriction to squatting, bending,
prolonged sitting, standing, and walking. (Id.
at 280.)

On November 7, 2011, Dr. Schweitzer
found atrophy of the left upper extremity and
continued to prescribe physical therapy. (Id.
at 298-30.)
In a medical assessment dated November
7, 2011, Dr. Schweitzer opined that plaintiff
could lift and carry five pounds occasionally.
(Id. at 283.) Dr. Schweitzer opined that
plaintiff could occasionally grasp, handle and
hold objects, finger, pick, pinch, and type, but
could never reach, push, pull, or twist/turn
objects with his left upper extremity. (Id. at
284.) Dr. Schweitzer noted that plaintiff
suffered from anterior instability in the left
shoulder girdle, reduced grip strength, loss of
coordination, loss of sensation, severe
arthritis, and atrophy of the entire upper left
extremity. (Id. at 283.) He also noted that
“patient functions entirely with his right
upper extremity.” (Id. at 284.)

On September 12, 2011, Dr. Schweitzer
evaluated plaintiff for left shoulder pain. (Id.
at 286.) Dr. Schweitzer diagnosed statuspost left shoulder injury with a torn labrum
and acromioclavicular separation. (Id. at
287.)
Neurometric findings indicated
hypoesthesia in the left upper extremity in
particular. (Id.) Dr. Schweitzer found
abduction limited to 90 degrees in the left
shoulder and forward flexion to 90 to 100
degrees. (Id.) He also found that motor
strength of the upper left extremity was
limited to 4/5. (Id.)
On September 19, 2011, Dr. Schweitzer
found instability of the left shoulder girdle.
(Id. at 290.) Dr. Schweitzer prescribed
physical therapy consisting of TENS,
ultrasound, and hot packs to the left shoulder
girdle. (Id.) The record of the visit indicates
that plaintiff informed Dr. Schweitzer that he
had the feeling that his left shoulder was
going in and out of place and that he had
continued to experience pain in his shoulder
joint following his surgery. (Id.)

On April 4, 2012, plaintiff sought
treatment from Dr. Eric Keefer for
complaints of left shoulder, arm, and elbow
pain, which he described as “sharp.” (Id. at
369.) Plaintiff reported pain of 10 on a scale
of 0 to 10 when active, and 6 when resting.
(Id.) He described the severity of the pain as
a 10 on a scale of 0 to 10. (Id.) He reported
that the pain affected his ability to sleep and
that the pain was worse while stretching,
lifting, exercise, and coughing. (Id.) He also
reported that the pain caused depression,
irritability, and mood swings. (Id.) Dr.
Keefer observed forward flexion of the
shoulder was limited to 150 degrees,
instability testing was positive for
apprehension and relocation signs, and cuff
testing produced pain. (Id.) Dr. Keefer
administered an injection of Depomedrol.
(Id.)

On October 3 and October 17, 2011, Dr.
Schweitzer again prescribed physical
therapy. (Id. at 292-94, 295-97.)

Plaintiff visited Dr. Keefer again on May
16, 2012. (Id. at 367.) Plaintiff reported pain
of 8 on a scale of 0 to 10 when active, and 6
4

when resting. (Id.) He described the severity
of the pain as a 6 on a scale of 0 to 10. (Id.)
The treatment notes also indicate that
plaintiff was taking Nucynta, a narcotic pain
medication. (Id.)

plaintiff again reported shoulder pain, and
Dr. Keefer again noted limited range of
motion in plaintiff’s left shoulder. (Id. at
355-56.) Plaintiff informed Dr. Keefer that
the prior injection helped “about 70 percent”
with the pain, and Dr. Keefer administered a
third Orthovisc injection. (Id. at 354-55.)

Plaintiff returned to Dr. Keefer on August
15, 2012. (Id. at 365.) Plaintiff reported pain
of 7 on a scale of 0 to 10 when active, and 3
when resting. (Id.) He described the severity
of the pain as a 5 on a scale of 0 to 10. (Id.)
Plaintiff demonstrated limited range of
motion in his left shoulder. (Id.)

On March 6, 2013, at his appointment,
plaintiff again reported shoulder pain and
received a fourth Orthovisc injection. (Id. at
352-53.) He informed Dr. Keefer that the
prior injection had helped “60 percent” with
the pain. (Id. at 351.) The treatment report
also notes that plaintiff had tried “aspirin,
Ibuprofen, aleve, etc. or prescription
NSAIDS, and/or exercises at home and/ or
physical therapy without satisfactory
response.” (Id. at 352-53.)

On September 26, 2012, plaintiff
attended a follow-up appointment with Dr.
Keefer. (Id. at 363.) Plaintiff again reported
pain of 7 on a scale of 0 to 10 when active,
and 3 when resting. (Id.) He described the
severity of the pain as a 5 on a scale of 0 to
10. (Id.) An examination revealed instability
and limited range of motion in the left
shoulder. (Id.) Dr. Keefer prescribed a home
exercise program and directed plaintiff to ice
the affected areas. (Id.)

On March 20, 2013, plaintiff visited Dr.
Mitchell Goldstein and complained of pain in
his left shoulder that radiated down his back,
restricted range of motion with his left
shoulder, pain in his left elbow, and
numbness in his pinky finger. (Id. at 348.)
Plaintiff described the pain as “shooting,
stabbing” and stated that the pain was a 10 on
a scale of 0 to 10 when active and 6 when at
rest. (Id.) Plaintiff described the severity of
the pain as a 10 on a scale of 0 to 10. (Id.)
The treatment notes indicate that plaintiff had
been prescribed Nucynta since May 2012 and
that he had difficulty with activities of daily
living and driving. (Id.) Dr. Goldstein also
prescribed Nucynta, use of a heating pad, and
TENS. (Id. at 350.)

Plaintiff returned to Dr. Keefer on
February 13, 2013. (Id. at 361.) During the
visit, Dr. Keefer noted limited range of
motion in plaintiff’s left shoulder, and that
plaintiff complained of continued shoulder
pain. (Id.) Dr. Keefer also administered an
Orthovisc injection into plaintiff’s left
shoulder. (Id.)
At plaintiff’s next visit with Dr. Keefer
on February 20, 2013, plaintiff reported
“continued left shoulder pain,” and Dr.
Keefer noted limited range of motion in
plaintiff’s left shoulder. (Id. at 357-58.)
Plaintiff informed Dr. Keefer that the
Orthovisc injection had helped “about 50
percent,” and plaintiff received a second
Orthovisc injection during this visit. (Id.)

Dr. Goldstein referred plaintiff for an
MRI of the lumbar spine, which was
performed on March 29, 2013. (Id. at 372.)
The MRI revealed L1-L2 and L3-L4
posterior disc bulges with no stenosis, and
L5-S1 broad based central disc herniation
impinging on the thecal sac and adjacent left
descending nerve root with facet arthropathy.

At his appointment on February 27, 2013,
5

(Id.) An MRI of plaintiff’s cervical spine
performed on March 30, 2013 showed small
right posteriolateral herniation at C3-4, a
small central posteriolateral herniation at C45 and C5-6, and mild disc bulging at C7-T1.
(Id. at 371.)

and ten pounds for one-third of the day, and
lift and carry less than five pounds for twothirds of the day. (Id. at 332.) Dr. Goldstein
checked off items on a list indicating:
plaintiff required periods of bed rest and
frequent breaks during the day; pain
prevented him from performing eight hours
of work; plaintiff took medication that
interfered with his ability to function;
plaintiff had difficulty concentrating and
required two or more sick days a month; and
plaintiff had environmental limitations. (Id.
at 333.)

Plaintiff returned to Dr. Goldstein on
April 17, 2013. (Id. at 345.) Plaintiff
reported pain of 8 on a scale of 0 to 10 when
active, and 3 when resting. (Id.) He
described the severity of the pain as a 4 on a
scale of 0 to 10. (Id.)
Plaintiff saw Dr. Goldstein again on June
12, 2013. (Id. at 342.) He reported that he
was experiencing worsening pain in his
shoulder, as well as elbow, neck, and lower
back pain, and numbness in his hand. (Id.)
Treatment notes reveal that he was taking
Nucynta as needed for pain and that a TENS
unit was helping with pain. (Id.) Plaintiff
reported pain of 10 on a scale of 0 to 10 when
active, and 5 when resting. (Id.) He
described the severity of the pain as an 8 on a
scale of 0 to 10 and described his pain as
“sharp and stabbing.” (Id.)

In a report dated September 25, 2013, Dr.
Goldstein reported that he evaluated plaintiff
on March 20, April 17, June 12, August 13,
and September 25, 2013. (Id. at 335-38.) Dr.
Goldstein diagnosed lumbago, lumbar
radiculopathy, lumbar sprain, cervical
radiculopathy, trigger point with neck pain,
shoulder pain/osteoarthritis, ulnar nerve
injury, and lumbar and cervical herniated
nucleus pulposus. (Id. at 337.) Dr. Goldstein
opined that plaintiff was permanently and
totally disabled. (Id. at 338.)
In a functional assessment dated October
14, 2013, Dr. Michael Hearns opined that
plaintiff could stand and/or walk for less than
two hours and sit for less than six hours in an
eight-hour day, lift and carry between five
and ten pounds for one-third of the day to
two-thirds of the day. (Id. at 378.) Dr.
Hearns checked off items on a list indicating:
plaintiff required periods of bed rest and
frequent breaks during the day, pain
prevented him from performing eight hours
of work; plaintiff took medication that
interfered with his ability to function;
plaintiff had difficulty concentrating and
required two or more sick days a month. (Id.
at 379.)

At his August 13, 2013 appointment with
Dr. Goldstein, plaintiff reported that his
lower back, neck, and left shoulder remained
symptomatic. (Id. at 339.) He also stated that
he was using Nucynta and receiving
chiropractic care. (Id.) Plaintiff reported
pain of 9 on a scale of 0 to 10 when active,
and 5 when resting. (Id.) He described the
severity of the pain as a 5 on a scale of 0 to
10. (Id.) Dr. Goldstein noted a limited range
of motion with plaintiff’s left shoulder. (Id.
at 340.)
In a functional assessment dated August
23, 2013, Dr. Goldstein opined that plaintiff
could stand and/or walk for less than two
hours and sit for less than six hours in an
eight-hour day, lift and carry between five

In a report dated October 15, 2013, Dr.
Hearns reported that a physical examination
6

Council to review the ALJ’s decision (id. at
136-40). By Order dated May 7, 2013, the
Appeals Council vacated the hearing decision
and remanded the case to the ALJ for further
administrative proceedings. (Id. at 94-98.) A
supplemental hearing was held before the
ALJ on October 22, 2013. (Id. at 40-64.)
Plaintiff appeared with counsel, and a
medical and a vocational expert testified. (Id.
at 40-41.) The ALJ issued a decision on
November 22, 2013, which concluded that
plaintiff was not disabled. (Id. at 24-35.)
This decision became the final decision of the
Commissioner when the Appeals Council
denied plaintiff’s request for review on
September 22, 2014. (Id. at 1-6.)

revealed that plaintiff walked without a cane.
(Id. at 382.) Plaintiff’s neck and lower back
exhibited multiple trigger points and muscle
spasms. (Id. at 382-83.) There was limited
range of motion of the left shoulder. (Id. at
383.) There were blunted deep tendon
reflexes in the left ankle and in both arms, and
weakness of the left foot and arm. (Id.) Dr.
Hearns diagnosed status-post two left
shoulder surgeries, status-post left elbow
surgery, cervical and lumbar herniated discs
and radiculopathy, and left arm cubical
tunnel syndrome. Dr. Hearns opined that
plaintiff was “unfit to perform any
competitive job within the US job market.”
(Id.)
Dr. Osvaldo Fulco, a board certified
internist, testified as a medical expert at
plaintiff’s second hearing. (Id. at 51-54.) Dr.
Fulco opined that, based on his review of the
medical evidence, plaintiff had significant
limitations in the use of his left upper
extremity for gross and fine manipulations.
(Id. at 53.) Dr. Fulco opined that plaintiff
could lift up to ten pounds, sit for six hours,
and stand and walk for up to two hours in an
eight-hour day, but should not push or pull.
(Id.)
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 th[e] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [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

Procedural History

Plaintiff protectively filed an application
for disability insurance benefits on April 14,
2011, alleging disability since February 9,
2011 due to neck, back and left arm
conditions. (Id. at 175-76, 195.) On June 16,
2011, plaintiff’s application was denied (id.
at 80, 101-08), and he thereafter requested a
hearing (id. at 109-10). Plaintiff’s hearing
was held on December 14, 2011, before the
ALJ. (Id. at 65-79.) Plaintiff appeared with
counsel. (Id. at 65.) On January 5, 2012, the
ALJ found that plaintiff was not disabled (id.
at 81-93), and, on March 8, 2012, the SSA
received plaintiff’s request for the Appeals
7

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.”).
III.
A.

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.

DISCUSSION

The Disability Determination

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. Id.

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 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 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
8

B.

Analysis

Perez, 77 F.3d at 46.

According to plaintiff, the ALJ erred in
failing to properly weigh the medical
evidence, in failing to properly evaluate
plaintiff’s credibility, and in identifying other
work plaintiff could perform. As set forth
below, the Court agrees that the ALJ erred by
failing to adequately explain the reasons for
determining that the opinion of plaintiff’s
treating physician, Dr. Schweitzer, should
not be afforded controlling weight, and
remands on this basis.
1.
a.

Here, the ALJ found that plaintiff had the
following severe impairments: left shoulder
internal
derangement
status-post
arthroscopic repair, left ulnar neuropathy
status-post transposition, cervical and lumbar
degenerative disc disease. (AR. at 30.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness.
c.

The ALJ’s Decision

At step three, if the claimant has a severe
impairment, the ALJ next considers whether
the claimant has an impairment that is listed
within 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“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).

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.

Here, the ALJ found that none of
plaintiff’s impairments, alone or in
combination, met or medically equaled the
severity of one of the listed impairments in
Appendix 1. (AR at 30.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.

Here, the ALJ determined that plaintiff
had not engaged in substantial gainful
activity since the alleged onset date of
February 9, 2011. (AR at 29.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.
b.

Listed Impairments

d.

Severe Impairment

Residual Function Capacity and Past
Relevant Work

If the severe impairments do not meet or
equal a listed impairment, the ALJ assesses
the claimant’s residual function 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 function capacity (“RFC”), the
claimant can perform her past relevant work.
Id. § 404.1520(f). When the claimant can

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
9

perform her past relevant work, the ALJ will
find that she is not disabled. (Id.)

upper extremity and performs a wide range of
activities of daily living.” (Id. at 33-34.)

In this case, the ALJ found that plaintiff
had the “residual functional capacity to
perform sedentary work as defined by 20
CFR § 404.1567(a) except sit for six hours
and stand/walk two hours in an eight-hour
workday and lift/carry ten pounds and
perform only occasional reaching, handling
and fingering with the left non-dominate
upper extremity.” (AR at 30.) Assisted by
the testimony of a vocational expert, the ALJ
concluded that plaintiff could not perform
any past relevant work. (Id. at 34.)

Plaintiff challenges the ALJ’s assessment
of his residual functional capacity. 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. Specifically, the ALJ, in
determining that “only some weight” can be
given to Dr. Schweitzer’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 Noutsis v.
Colvin, No. 14-CV-5294 (JFB), 2016 WL
552585, at *7 (E.D.N.Y. Feb. 10, 2016);
Branca v. Comm’r of Soc. Sec., No. 12-CV643 (JFB), 2013 WL 5274310, at *11
(E.D.N.Y. Sept. 18, 2013).

The ALJ found that plaintiff’s medically
determinable impairments could reasonably
be expected to cause his alleged symptoms.
(Id.) However, the ALJ concluded that
plaintiff’s “statements concerning the
intensity, persistence and limiting effects of
these symptoms are not entirely credible.”
(Id.)

e.
The ALJ concluded that “only some
weight” should be given to the opinion of Dr.
Schweitzer because
his
conclusions
concerning plaintiff’s lift/carry limitations
and his determination that plaintiff could
“never reach push/pull, turn or twist objects
with the left upper extremity” were
inconsistent with the conservative treatment
plaintiff received. (Id. at 32.) The ALJ
afforded significant weight to Dr. Austria’s
opinion, noting that it was “consistent with
the clinical signs displayed during the
examination, which include[d] limitations in
range of motion of the shoulder and that
[plaintiff] was three months status-post left
elbow surgery.” (Id.) The ALJ also assigned
“great weight” to Dr. Fulco’s opinion, as it
was “consistent with the nature of
[plaintiff’s] most significant impairment, left
shoulder internal derangement” and because
“[plaintiff] has full use of his right dominate

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).
The ALJ noted that where the claimant
has the residual functional capacity to
perform the full range of sedentary work, the
ALJ is permitted to rely on the MedicalVocational Guidelines, see 20 C.F.R. Part
404, Subpart P, Appendix 2, to determine
whether a claimant is disabled. (See AR at
10

35.) However, here, because plaintiff was
unable to perform the full range of sedentary
work, the Guidelines were not controlling,
and the ALJ called upon a vocational expert
to
testify
regarding
occupational
opportunities available to plaintiff, given his
exertional limitations. (Id.) Given plaintiff’s
age, work experience, education, and residual
functional capacity, the vocational expert
testified that plaintiff would be able to
perform the requirements of representative
occupations such as Call Out Operator (an
unskilled job with 16,000 positions
nationwide), Information Clerk (a semiskilled job with 600,000 positions
nationwide), or Insurance Clerk (a semiskilled job with 130,000 positions
nationwide). (Id.) Accordingly, the ALJ
concluded that based on the testimony of the
vocational expert and plaintiff’s age,
education, work experience, and residual
functional capacity, plaintiff was capable of
making a successful adjustment to other work
in the national economy and, therefore, a
finding of “not disabled” was appropriate.
(Id.)
2.

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, 7879 (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
medical professionals most
able to provide a detailed,
longitudinal picture of your
medical impairment(s) and
may
bring
a
unique
perspective to the medical
evidence that cannot be
obtained from the objective
medical findings alone or
from reports of individual
examinations,
such
as
consultative examinations or
brief hospitalizations. If we
find that a treating source’s
opinion on the issue(s) of the
nature and severity of your
impairment(s)
is
wellsupported
by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques and is not
inconsistent with the other
substantial evidence in your
case record, we will give it
controlling weight.

Treating Physician Rule

Plaintiff argues, among other things, that
the ALJ failed to credit the testimony of his
treating orthopedist, Dr. Schweitzer. The
Court agrees that the ALJ failed to apply the
proper standard for evaluating the medical
opinion of Dr. Schweitzer, and remands the
case on this basis.
a.

Legal Standard
20 C.F.R. § 404.1527(c)(2).

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

Although treating physicians may share
their opinion concerning a patient’s inability
to work and the severity of the 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,
11

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.”).

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
ground for a remand.” Snell, 177 F.3d at 133.

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 (DLJ), 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 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

b.

Analysis

The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Schweitzer, plaintiff’s treating
physician. The ALJ concluded that “only
some weight” should be given to Dr.
Schweitzer’s
opinion
because
his
conclusions concerning plaintiff’s lift/carry
limitations and his determination that
plaintiff could “never reach push/pull, turn or
twist objects with the left upper extremity”
were inconsistent with the conservative
treatment plaintiff received.2 (AR at 32.)
However, this summary conclusion does not
set forth in sufficient detail the reasons for
affording only “some weight” to the treating
physician’s opinion. The ALJ did not
address the several factors required to be
considered when an ALJ affords a treating
source less than controlling weight, despite
the Second Circuit’s repeated admonitions to
do so. Shaw, 221 F.3d at 134; see also
Gunter v. Comm’r of Soc. Sec., 361 F. App’x
197, 199 & n.2 (2d Cir. 2010) (“Before an

Although the ALJ’s prior decision, rendered on
January 5, 2012, refers to Dr. Schweitzer as plaintiff’s
treating physician (see AR at 88), the ALJ did not refer
to Dr. Schweitzer as such in the decision under review
herein. The Commissioner does not dispute in her
opposition that Dr. Schweitzer is a treating physician.

that “[d]ue to the fact that Dr. Scweitzer’s (sic) serves
as the claimant’s treating physician and found
restrictions primarily involving the left upper
extremity, which are supported by objective medical
findings, the undersigned finds that his opinion is also
entitled to substantial weight (20 C.F.R. § 404.1527).”
(Id.)

2

Separately, the Court notes that, curiously, the
ALJ’s decision rendered on January 5, 2012 concluded

12

orthopedic specialist.3 See, e.g., Veresan v.
Astrue, No. 06 Civ. 5195(JG), 2007 WL
1876499, at *5 (E.D.N.Y. June 29, 2007)
(remanding case, in part, because ALJ did not
indicate what weight, if any, was assigned
based on the fact that medical opinions were
from specialists); see also Serrano v. Colvin,
No. 12 CIV. 7485 PGG JLC, 2014 WL
197677, at *17 (S.D.N.Y. Jan. 17, 2014)
(failure to consider how treating physician’s
specialization “might impact the value of
[his] opinions” warranted remand); Rolon v.
Comm’r of Soc. Sec., 994 F. Supp. 2d 496,
507-508 (S.D.N.Y. 2014) (holding that ALJ
erred in failing to “explicitly consider”
whether the treating physician was a
specialist in its decision to override the
treating physician’s opinion). This omission
is especially significant in light of the fact
that the ALJ gave “great weight” to the
opinion of consultative physician, Dr. Fulco,
who was merely an internist, not an
orthopedic specialist, and who never
examined plaintiff.4 See, e.g., Santos v.
Astrue, No. 12 CIV. 2075 JGK, 2013 WL
5462337, at *7 (S.D.N.Y. Sept. 30, 2013)
(explaining that, all things being equal, a
treating physician’s opinion should be
credited over a conflicting consultative
physician’s opinion, especially where the
treating physician is a specialist in the
relevant field and the consultative physician

ALJ may elect to discredit the medical
conclusions of a treating physician, she must
explicitly consider the factors specified in the
regulation. . . . [T]he [treating physician] rule
imposes on the Commissioner a heightened
duty of explanation when a treating
physician’s medical opinion is discredited.”
(internal quotation marks omitted)); 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 v. Comm’r of Soc.
Sec., No. 13-CV-330 (JFB), 2014 WL 69869,
at *13 (E.D.N.Y. Jan. 9, 2014) (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.”).
For example, the ALJ failed to explain his
rejection of Dr. Schweitzer’s opinion in
reference to Dr. Schweitzer’s status as an
3

The ALJ indicated only that Dr. Schweitzer was a
“pain management specialist,” but failed to note that
Dr. Schweitzer was also an orthopedic specialist. (See
AR at 284.)

these activities for less than one-third of the workday.
Thus, plaintiff appears to argue that the opinions of
Drs. Fulco and Schweitzer are consistent with each
other and inconsistent with the ALJ’s determination
because both doctors limited plaintiff’s activity to less
than one-third of the work day, whereas the ALJ’s
limit was up to one third of the work day. Plaintiff’s
attempt to distinguish “up to one-third” from “less
than one-third” appears to the Court to be nothing
more than semantics. (Furthermore, SSR 83-10 states
that “occasionally” means “occurring from very little
up to one-third of the time.”) In any event, because
the Court is already remanding this case, it need not,
and does not, address this argument.

Relying on Dr. Fulco’s testimony, the ALJ concluded
that plaintiff could perform reaching, handling, and
fingering “occasionally” (AR at 30), which in the
Social Security context, means “up to” one-third of the
work day, see SSR 83-10. Dr. Schweitzer, however,
concluded that plaintiff could never reach, push/pull,
turn or twist objects with the left upper extremity. (Id.
at 32.)
Plaintiff asserts that Dr. Schweitzer’s
limitations are appropriate and, further, that they are
actually consistent with Dr. Fulco’s conclusion
because Dr. Fulco opined that plaintiff could perform
4

13

is not). Nor does it appear that the ALJ even
took into account the entire duration of Dr.
Schweitzer’s treatment of plaintiff, much less
explain how this factor weighed in his
analysis. (The ALJ stated that Dr. Schweitzer
saw plaintiff between September and
November 2011 (see AR at 32); however, the

record reflects that Dr. Schweitzer saw
plaintiff as early as 2008 for his shoulder
injury (see id. at 307, 382).) Accordingly, the
case must be remanded to the ALJ for further
consideration of Dr. Schweitzer’s opinion in
light of this Court’s analysis.5 See, e.g.,
Rolon, 994 F. Supp. 2d at 506, 508 (noting

5

of plaintiff’s subjective testimony concerning his pain
and was inconsistent with the ALJ’s conclusion that
plaintiff’s pain was less severe than claimed), report
and recommendation adopted, No. 09 CIV. 6363 RJS
MHD, 2011 WL 649665 (S.D.N.Y. Feb. 17, 2011);
Longerman v. Astrue, No. 11 CV 383, 2011 WL
5190319, at *14 (N.D. Ill. Oct. 28, 2011) (ALJ’s
failure to consider the numerous narcotic medications
taken by plaintiff warranted remand); see also Jaeckel
v. Colvin, No. 13-CV-4270 SJF, 2015 WL 5316335, at
*11 (E.D.N.Y. Sept. 11, 2015) (remand was
appropriate where it was “not clear that the ALJ took
into account the factors listed in 20 C.F.R. §
404.1529(c)(3) other than plaintiff’s daily activities”).
Thus, after conducting the proper treating physician
analysis, the ALJ also shall re-assess plaintiff’s
credibility, including consideration of any prescribed
narcotic pain medication used by plaintiff.

Plaintiff also contends that the ALJ erred in
concluding that plaintiff’s statements regarding “the
intensity, persistence and limiting effects of [his]
symptoms [were] not entirely credible.” Specifically,
plaintiff argues that the ALJ failed to take into account
the fact that plaintiff’s pain was severe enough that he
was prescribed narcotic pain medication.
In
conducting the credibility inquiry, the ALJ must
consider seven factors: (1) the claimant’s daily
activities; (2) the location, duration, frequency, and
intensity of the pain; (3) precipitating and aggravating
factors; (4) the type, dosage, effectiveness, and side
effects of any medications taken to alleviate the pain;
(5) any treatment, other than medication, that the
claimant has received; (6) any other measures that the
claimant employs to relieve the pain; and (7) other
factors concerning the claimant’s functional
limitations and restrictions as a result of the pain. 20
C.F.R. § 404.1529(c)(3)(i)-(vii). An ALJ is not always
required to give exhaustive explanations for every one
of these factors in his written decision, see Delk v.
Astrue, No. 07-CV-167-JTC, 2009 WL 656319, at *4
(W.D.N.Y. Mar. 11, 2009), but he must state his
reasons “explicitly and with sufficient specificity to
enable the Court to decide whether there are legitimate
reasons for [his] disbelief,” Young v. Astrue, No. 7:05CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept.
30, 2008) (quoting Brandon v. Bowen, 666 F. Supp.
604, 608 (S.D.N.Y. 1987)). Here, despite the express
requirement to consider “the type, dosage,
effectiveness, and side effects of any medications
taken [by plaintiff] to alleviate the pain,” it does not
appear that the ALJ considered the fact that plaintiff
was prescribed narcotic medications, Hydrocodone
and Nucynta, to treat his pain. The Court notes that
other similar cases have held that it was error to fail to
consider the plaintiff’s use of narcotic pain medication
as part of the credibility analysis. See, e.g., Sanchez v.
Colvin, No. 13-CV-929 MKB, 2014 WL 4065091, at
*14-15 (E.D.N.Y. Aug. 14, 2014) (remanding where
ALJ failed to consider all of the factors required by §
404.1529(c)(3), including the plaintiff’s use of
narcotic pain medication); Archambault v. Astrue, No.
09 CIV. 6363 RJS MHD, 2010 WL 5829378, at *3334 (S.D.N.Y. Dec. 13, 2010) (holding that plaintiff’s
use of narcotic pain medication supported credibility

Additionally, plaintiff contends that the ALJ erred
at step five in concluding that jobs existed in sufficient
number in the national economy that plaintiff could
perform. More specifically, plaintiff contends that it
was error for the ALJ to include in his calculus two
positions identified by the vocational expert that were
semi-skilled, despite the fact that the ALJ did not make
an explicit finding concerning the transferability of
skills, concluding instead that transferability was “not
material to the determination of disability.” (AR at
34.) The Court need not decide this issue at this
juncture in light of the decision to remand based on the
ALJ’s contravention of the treating physician rule;
nevertheless, the Court notes that there are cases from
outside this Circuit that support plaintiff’s position
that, in order for the ALJ to consider semi-skilled
positions at step five, he must first find that the
plaintiff has transferable skills that will enable him to
perform more than unskilled work. See, e.g., Steward
v. Barnhart, 44 F. App’x 151, 152 (9th Cir. 2002)
(“[A]n applicant must possess transferable skills from
previous work in order to perform [semi-skilled]
jobs.”); Phair v. Colvin, No. 3:12-CV-06073-RBL,
2013 WL 6185243, at *3 (W.D. Wash. Nov. 26, 2013)
(concluding that without a finding on the
transferability of skills, the court was unable to
determine “whether or not the ALJ properly found

14

that “[f]ailure to properly apply the treating
physician’s rule, or consider the required
factors, constitutes legal error and is a
sufficient basis for remand” and remanding
where ALJ failed to explicitly consider
physician’s specialty and the frequency,
length, nature, and extent of treatment).

ALJ erred in questioning the validity of [the
treating physician’s] opinion based on his
‘conservative’ course of treatment.” (citing
Shaw, 221 F.3d at 134 (ruling that “the
district court improperly characterized the
fact
that
[the
treating
physician]
recommended only conservative [treatment]
as substantial evidence that plaintiff was not
physically disabled during the relevant
period”))); see also Burgess v. Astrue, 537
F.3d 117, 129 (2d Cir. 2008) (“Nor is the
opinion of the treating physician to be
discounted merely because he has
recommended a conservative treatment
regimen.”); Ganoe v. Comm’r of Soc. Sec.,
No. 514CV1396GTSWBC, 2015 WL
9267442, at *4 (N.D.N.Y. Nov. 23, 2015)
(“[A]lthough the ALJ may rely on
conservative treatment in his overall analysis
of a treating source’s medical opinion, the
ALJ may not use Plaintiff’s conservation

Furthermore, the ALJ’s only stated basis
for discounting Dr. Schweitzer’s opinion is
an impermissible one. The ALJ faulted Dr.
Schweitzer’s opinion because he found that it
was inconsistent with the conservative
treatment received by plaintiff. (AR at 32.)
However, the Second Circuit has instructed
that the ALJ cannot use the plaintiff’s
prescribed conservative treatment as the
“substantial evidence” to limit the weight
afforded to the opinion of a treating
physician. See, e.g., Foxman v. Barnhart,
157 F. App’x 344, 347 (2d Cir. 2005) (“[T]he

explains that “[a]bility to perform skilled or
semiskilled work depends on the presence of acquired
skills which may be transferred to such work from past
job experience above the unskilled level,” see 1983
WL 31251 (1983), and common sense: “[c]learly,
plaintiff can not (sic) obtain transferable skills from
unskilled work,” Kuleszo v. Barnhart, 232 F. Supp. 2d
44, 54 (W.D.N.Y. 2002) (citing SSR 00-4p and SSR
82-41).

plaintiff could perform [semi-skilled] jobs given his
acquired work skills, and thus whether or not the
ALJ’s step five determination is supported by
substantial evidence in the record”); Teeter v. Comm’r
of Soc. Sec., No. 1:11 CV 2376, 2012 WL 6772099, at
*4 (N.D. Ohio Dec. 12, 2012) (holding that “before
[plaintiff] could be found not disabled on the basis of
a capacity to perform specified semi-skilled jobs, he
needed to first be found to possess transferable skills
such as would permit him to perform the identified
work”), report and recommendation adopted, No.
1:11CV2376, 2013 WL 66086 (N.D. Ohio Jan. 4,
2013); Macarages v. Astrue, No. CIV09-1270D, 2010
WL 3749468, at *2-3 (W.D. Okla. Aug. 23, 2010)
(recommending reversal based on ALJ’s conclusion
that the plaintiff could perform semi-skilled positions
without finding that the plaintiff possessed
transferable skills that would qualify him for a semiskilled position), report and recommendation
adopted, No. CIV 09-1270-D, 2010 WL 3749455
(W.D. Okla. Sept. 21, 2010); Barker v. Astrue, No.
CIV 09-437-P-S, 2010 WL 2680532, at *5 (D. Me.
June 29, 2010) (“[T]he administrative law judge
indeed erred in deeming the plaintiff capable of
performing a semi-skilled job in the absence of a
finding that she possessed transferable skills.”), aff’d,
No. CIV. 09-437-P-S, 2010 WL 3082340 (D. Me.
Aug. 4, 2010). This analysis is consistent with
promulgated Social Security Ruling 83-10, which

Notably, however, even if the two semi-skilled
positions could not be considered in the ALJ’s step
five analysis, the vocational expert also identified an
unskilled job suitable for plaintiff, of which 16,000
positions exist in the national economy. (AR at 35,
60.) In Gray v. Colvin, the court concluded that it
could not be said that 16,000 jobs nationally was
insignificant as a matter of law. No. 12-CV-6485,
2014 WL 4146880, at *6 (W.D.N.Y. Aug. 19, 2014);
see also Vining v. Secretary of Health & Human
Services, 720 F. Supp. 2d 126, 137 (D. Me. 2010)
(concluding that “numbers of jobs in the ballpark of
10,000 to 11,000 nationwide have been held
‘significant’”). If the ALJ needs to reach this issue on
remand, he should consider whether 16,000 positions
is a sufficient number and, if not, whether it is
necessary to make a finding that plaintiff had
transferable skills allowing him to perform semiskilled work.

15

(sic) treatment as proof positive that a
treating source’s prescribed limitations are
unsupported.”), report and recommendation
adopted sub nom. Ganoe v. Colvin, No. 5:14CV-1396, 2015 WL 9274999 (N.D.N.Y.
Dec. 18, 2015); Valet v. Astrue, No. 10-CV3282 KAM, 2012 WL 194970, at *18-19
(E.D.N.Y. Jan. 23, 2012) (holding that it was
error to discount treating physician’s opinion
regarding plaintiff’s impairments because it
was allegedly inconsistent with the
conservative treatment physician had
prescribed); Taylor v. Colvin, No. 6:12-CV1326 GTS/VEB, 2014 WL 788842, at *6-7
(N.D.N.Y. Feb. 24, 2014) (same).

IV.

CONCLUSION

For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s cross-motion
for judgment on the pleadings is denied, but
plaintiff’s motion to remand is granted. The
case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Thus, the ALJ’s failure to properly
consider Dr. Schweitzer’s opinion requires
remand.

Dated: March 31, 2016
Central Islip, NY
***
Plaintiff is represented by Christopher James
Bowes, Office of Christopher James Bowes,
54 Cobblestone Drive, Shoreham, NY 11786.
The Commissioner is represented by Robert
W. Schumacher, II, U.S. Attorney’s Office,
Eastern District of New York, 610 Federal
Plaza, Central Islip, NY 11722.

16