Viverito v. Colvin

Filing 16

ORDER denying 12 Motion for Judgment on the Pleadings; granting in part and denying in part 14 Motion for Judgment on the Pleadings. For the reasons set forth above, the Commissioner's motion for judgment on the pleadings is denied. Plain tiff'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. Ordered by Judge Joseph F. Bianco on 2/25/2016. (Dolecki, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-7280 (JFB)
_____________________

DOROTHY A. VIVERITO,
Plaintiff,
VERSUS

CAROLYN COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
February 25, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff
Dorothy
A.
Viverito
(“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
“Commissioner”),
denying
plaintiff’s
application for disability insurance benefits
(“DIB”). An Administrative Law Judge
(“ALJ”) found that plaintiff had the residual
capacity to perform the full range of
sedentary work as defined by 20 C.F.R. §
404.1567(a) and was capable of performing
past relevant work. 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.
The Commissioner has moved for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
Plaintiff has opposed the Commissioner’s

motion and filed a cross motion for
judgment on the pleadings, or in the
alternative, remand, arguing that the ALJ
erred by: (1) failing to fully develop the
administrative record; and (2) failing to
properly weigh the medical evidence.
For the reasons set forth herein, the
Court denies the Commissioner’s motion for
judgment on the pleadings and plaintiff’s
cross-motion for judgment on the pleadings,
but remands the case 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. Ruotolo.1

1

As discussed, infra, on remand, in addition to
evaluating Dr. Ruotolo’s opinion according to the
treating physician rule, the ALJ should also consider
the new evidence submitted by Dr. Ruotolo and Dr.
Dash.

I.

before she would have to stop and rest and
that she would rest for “about 10 minutes”
before she could continue walking. (AR at
139.) Plaintiff reported that she could not
finish tasks that she started because she had
to “stop and rest due to [her] condition” and
that she could not follow spoken instructions
because she had “trouble hearing,” but that
she could follow written instructions. (Id.)

BACKGROUND

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

Plaintiff reported that she goes outside
daily, is able to drive, and can go out alone.
(AR at 135-36.) Plaintiff goes shopping
“about twice a week for about 30 minutes.”
(AR at 136.) Plaintiff reported that she
prepares “light meals” daily and has no
problem with personal care. (AR at 133-34.)
Plaintiff is able to do “light household
chores” and “light outdoor chores,” though
she reported that she needed help with some
chores as well. (AR at 135.) Plaintiff’s
hobbies include “light gardening when able
to” (though she “used to be able to garden
without any limitation”), as well as watching
television daily and going to the movies
about once a month. (AR at 136-37.)
Plaintiff indicated that her social activities
are “limited” “due to [her] condition” but
that she socializes with her family daily and
goes to church once a week. (AR at 137.)

1. Personal and Work History
Plaintiff was born on April 21, 1954, and
was fifty-six years old at the time of the
alleged disability onset date of March 20,
2011. (AR at 149.) Plaintiff is a high school
graduate. (AR at 123.) She currently lives
with her mother and sister. (AR at 28.)
Prior to March 20, 2011, plaintiff
worked as an assistant supervisor in the
Genovese Drugs corporate office from 1979
to 1999, and subsequently worked as a data
entry clerk, accounts receivable clerk, and a
collections clerk (all of which were
described as “sedentary in exertional nature”
by the ALJ). (AR at 20, 124.) Plaintiff has
not worked since her alleged disability onset
date. (AR at 122.)
On June 7, 2012, plaintiff completed a
“Function Report,” which detailed her daily
activities, as well as how her condition
affected her ability to perform various tasks.
(AR at 132-40.) Plaintiff indicated that she
was “limited in what [she] can lift due to
[her] condition,” “can not [sic] walk for a
long period of time,” has to “take [her] time
and hold onto the rail” in order to climb
stairs, “avoid[s] kneeling,” was “limited in
what [she] can reach for,” “get[s] blurry
vision [and] wear[s] glasses at night,” and
has “trouble reading.” (AR at 137-38.)
Plaintiff did not report that she had any
difficulty standing, sitting, squatting, using
her hands, or talking. (Id.) Plaintiff indicated
that she could walk for “about 20 minutes”

2. Medical History
From June 16, 1998 through September
29, 2012, plaintiff was treated by Dr. Greg
Dash, an otolaryngologist, for difficulties
hearing. (AR at 232-42.)
On February 24, 2009, plaintiff saw Dr.
Noah Kromholz for a thyroid consultation.
(AR at 212-13.) Dr. Kromholz indicated that
plaintiff had a history of autoimmune
thyroid disease and a nodular thyroid gland,
but was not taking any thyroid medication
and reported that she felt fairly well. (AR at
212.) Dr. Kromholz noted that, upon
questioning, plaintiff “admitted to weakness,
dyspnea on exertion, and leg cramps” as
2

well as “episodes of weakness and sweating
reportedly associated with low serum
potassium levels.” (Id.) After the
examination, Dr. Kromholz assessed
plaintiff as “clinically euthyroid at this time”
and planned to “obtain repeat thyroid
function studies to confirm her current
metabolic status and a thyroid ultrasound
examination to determine the stability of the
nodularity.” (AR at 213.) Dr. Kromholz also
noted that plaintiff’s episodic symptoms of
weakness were “of particular interest”
because they were “suggestive of
thyrotoxicosis-associated
periodic
paralysis,” but that unless plaintiff was
thyrotoxic at the time of the weakness, such
a rare diagnosis was unlikely. (Id.) A thyroid
ultrasound was performed on plaintiff on
March 23, 2009, and indicated that her
thyroid nodule was “not discretely
appreciated” and that an “underlying right
thyroid abnormality [could] not be excluded
in the region of focal heterogeneity.” (AR at
214.)

Plaintiff was referred for a CT angiography
assessment performed at St. Francis Hospital
on June 19, 2009, which confirmed the
anomalous origin of the left coronary artery.
(AR at 221.) Dr. Kersten reviewed
plaintiff’s test results with her on June 22,
2009, and indicated that the CT revealed
“anomalous left main originating from the
right coronary cusp” and that plaintiff would
be having a surgical opinion with Dr.
Schubach. (AR at 289.)
Plaintiff was then examined by Dr. Scott
Schubach of Winthrop Cardiovascular &
Thoracic Surgery, P.C. on June 24, 2009.
(AR at 220-22.) Plaintiff reported
“increasing dyspnea on exertion” and
“occasional chest pressure” when walking
stairs. (AR at 221.) Dr. Schubach noted that
plaintiff appeared to have nonobstructive
coronary disease on the catheterization and
CT angiogram. (AR at 222.) Dr. Schubach
indicated that plaintiff might benefit from
coronary artery bypass grafting, but that her
symptoms were “somewhat compelling as
angina.” (Id.) Dr. Schubach intended to
review plaintiff’s films further with Dr.
Marzo and “possibly obtain a stress test to
assess for any ischemia or reproducibility of
the symptoms.” (Id.) On July 1, 2009, a
carotid ultrasound report was performed on
plaintiff, which revealed “mild intimal
thickening with no plaques visualized” for
both the left and right carotid arteries. (AR
at 288.)

On June 9, 2009, plaintiff was examined
by Dr. Roger Kersten of Cardiology and
Internal Medicine of Long Island
(“CIMCLI”) due to complaints of
chest discomfort that had been “on and off
for approximately 1 week.” (AR at 294.)
Plaintiff also complained of asthma that
caused her to sneeze and have wheezing
episodes when she cut the lawn. (Id.) Dr.
Kersten noted that plaintiff had a positive
nuclear stress test in addition to her chest
discomfort, and thus, requested that she have
an angiogram performed. (AR at 297.) Dr.
Kersten also started plaintiff on Symbicort
and Proventil for her asthma symptoms. (Id.)

On July 6, 2009, Dr. Schubach
performed coronary artery bypass grafting
for the anomalous left coronary artery. (AR
at 218-19.) Dr. Schubach reported that
plaintiff’s “postoperative course was
uneventful” and that she was being
discharged in satisfactory condition. She is
ambulating; she is in normal sinus rhythm
and is neurologically intact.” (AR at 216.)
On July 30, 2009, Dr. Schubach examined
the plaintiff again and indicated that she had

On June 16, 2009, plaintiff was
examined by Dr. Kevin Marzo, who
performed a catheterization of plaintiff’s
heart, which revealed an anomalous left
coronary artery that originated from the right
coronary artery. (AR at 221, 223-24.)
3

“done quite well and has no recurrence of
her angina.” (AR at 215.) Dr. Schubach
noted that plaintiff had “mild cellulitis of her
right leg saphenous vein harvest site, which
was treated with antibiotics and has now
resolved.” (Id.) Dr. Schubach authorized
plaintiff to “return to full activity without
restriction from the surgical standpoint” and
noted that he did not need to see her again
unless further problems arose. (Id.)

consult because she had been complaining
of abdominal pain and bloating that had
lasted for ten days. (AR at 184.) Dr.
Pasternak recommended a CT of her
abdomen/pelvis
and
an
esophagogastroduodenoscopy
(“EGD”).
(AR at 185.) On April 4, 2011, plaintiff’s
EGD revealed hiatal hernia, erosive
esophagitis, and gastritis, without mention
of hemorrhage. (AR at 175.) The
recommended plan was a diet and antireflux
regimen, and “follow up in GI office for
pathology results in 2 weeks.” (Id.) At
plaintiff’s April 12, 2011 follow-up
appointment with Dr. Pasternak, she
reported that her pain was palated by a
proton pump inhibitor (“PPI”), but that she
was dissatisfied with her current treatments;
Dr. Pasternak prescribed a higher dose of
Nexium. (AR at 182-83.) Plaintiff saw Dr.
Pasternak for another follow-up on July 14,
2011, at which he noted that plaintiff was
successfully weaned off of using the PPI
twice daily and was down to using it once
daily. (AR at 180.) Dr. Paternak
discontinued plaintiff’s Nexium prescription
and prescribed Zantac to be taken daily at
bedtime. (Id.)

On August, 20, 2009, Dr. Thomas
Joseph, Dr. Kersten’s colleague at CIMCLI,
performed an echocardiogram on plaintiff.
(AR at 286-87.) Dr. Joseph recommended
“[a]gressive medical therapy and risk factor
modification.” (AR at 287.) Dr. Joseph
noted that plaintiff “did not reach target
heart rate which reduces the sensitivity of
ischemic evaluation.” (Id.)
On February 18, 2010, plaintiff
underwent a CT scan of her neck, which
revealed
“minimal
asymmetrical
enlargement of the right submandibular
gland and minimal prominence of the
intraglandular ducts” which “together with
the clinical history of pain and swelling in
this region raise the possibility of resolving
right submandibular gland sialadenitis.” (AR
at 331.) Evaluation of the rest of plaintiff’s
neck was “unremarkable.” (Id.)

On December 8, 2011, plaintiff saw Dr.
Tej Singh, a neurologist, complaining of
headaches. (AR at 283-85.) Dr. Singh noted
that plaintiff had “hearing loss in the Right
more than the Left ear, with tenderness over
the Right Occiput and a positive Sperling’s
Maneuver. Her exam, otherwise is nonfocal.” (AR at 284.) Dr. Singh believed that
plaintiff was having Occipital Neuralgia, but
recommended “MR Imaging” to rule out
secondary causes for the headaches and an
electroencephalogram (“EEG”) to rule out
epileptic focus as a cause of the headaches.
(AR at 285.)

On May 6, 2010, plaintiff underwent an
MRI of her brain, which revealed
“[s]cattered foci of elevated signal intensity
within the periventricular and subcortical
white matter on FLAIR images [which]
likely represent microvascular ischemic
change in a patient with cardiac disease.”
(AR at 225.) “Clinical correlation to exclude
other
demyelinating
or
infectious/inflammatory processes [was]
recommended.” (Id.)

Plaintiff’s MRI/A of her brain revealed
no acute lesion, the MRA of her neck
revealed no stenosis, and the MRI of her

On March 31, 2011, plaintiff was
referred by Dr. Pushpaben Parikh to Dr.
Hebert Pasternak for a gastroenterology
4

cervical
spine
revealed
multilevel
degenerative disk disease, without cord
impingement, neural compression, or
significant central spinal canal stenosis. (AR
at 226, 280.) Her EEG was normal. (AR at
280.) Dr. Singh indicated that plaintiff
appeared to be having occipital neuralgia,
for which he prescribed a new medication,
Savella. (Id.) Plaintiff continued to see Dr.
Singh for follow-up appointments in March,
May, and June 2012. (AR at 255-57, 27378.) At the May 1, 2012 appointment, Dr.
Singh noted that plaintiff reported that
Savella had been “helping a lot,” but that
she could not tolerate higher doses due to
stomach upset. (AR at 273.)

her right lower leg where she had the venous
graft harvested than the left, following the
bypass surgery. (AR at 203.) Dr. Kersten
noted that as to her congenital coronary
artery anomaly, plaintiff had no recent chest
discomfort and would continue current
medications. (AR at 206.) As to plaintiff’s
paresthesia, Dr. Kersten spoke with Dr.
Singh and determined that a transcranial
Doppler with emboli detection as well as an
MRA of her brain would be performed. (Id.)
On May 4, 2012, an MRI of plaintiff’s
brain, with and without contrast, was
performed. (AR at 163.) The MRI revealed
“scattered foci of T2 hyperintensity in the
central pontine and supratentorial white
matter.” (Id.) Dr. Craig Sherman, the
interpretive physician, noted that these
findings were “rather nonspecific” and “may
be related to chronic ischemic disease, but
other etiologies such as inflammation,
vasculopathy,
or
even
primary
demyelination cannot be entirely excluded.”
(Id.)
Dr. Sherman reported that the
examination was “otherwise unremarkable.”
(Id.)

On March 7, 2012, plaintiff saw Dr.
Pasternak for a gastroenterology consult
after reporting two weeks of abdominal
pain. (AR at 178.) Dr. Pasternak
recommended a colonoscopy, which was
performed on March 20, 2012, and which
revealed nonspecific inflammation of the
colon and internal hemorrhoids. (AR at 174,
178.)
On April 27, 2012, plaintiff saw her
primary care doctor, Dr. Robert Kersten, for
a follow-up appointment. (AR at 203-207.)
Plaintiff reported that she experienced some
numbness and tingling in the right side of
her face at times, feeling her lip being pulled
to the left, and some numbness and tingling
in her right fingers. (AR at 203.) Plaintiff
reported that these symptoms typically
lasted less than fifteen minutes and resolved
spontaneously, and that they did not cause
weakness, dizziness, lightheadedness, or
palpitations. (Id.) Dr. Kersten noted that
plaintiff’s
headaches
had
“gotten
considerably better since she has been
treated with Savella although she has not
been taking this on a continuous basis” and
would likely discontinue the medication.
(AR at 203, 206.) Dr. Kersten also noted
that plaintiff reported leg swelling, more on

On May 9, 2012, plaintiff underwent a
transcranial Doppler study, which was found
to be “within normal velocity ranges,” and
no emboli were detected. (AR at 266.) On
May 23, 2012, a brainstem auditory evoked
potential study was performed on plaintiff,
which evoked a normal response. (AR at
265.)
On May 26, 2012, plaintiff saw Dr. Paul
Ricco of CIMCLI for a blood pressure
check. (AR at 167-70.) Plaintiff also
reported that she slipped and fell five days
before the appointment, and struck her right
elbow and side. (AR at 167.) Plaintiff denied
shortness of breath, head or neck trauma,
and chest, abdominal, or back pain. (Id.) Dr.
Ricco’s assessment of her pre-existing
conditions – asthma, hypertension, and
5

mixed hyperlipidemia – were unchanged.
(AR at 169.) Due to her fall, Dr. Ricco
referred plaintiff for a chest X-ray, right rib
X-ray, right elbow X-ray, and abdominal
sonogram. (AR at 170.) Plaintiff’s X-rays
and sonogram also occurred on May 26,
2012. (AR at 171-73.) Her abdominal
sonogram was “unremarkable,” and her
chest with right rib X-ray and right elbow Xray revealed no evidence of fracture. (Id.)

Dr. Graber noted that plaintiff was
hospitalized in 2001 at Brunswick Hospital
for pneumonia, in 1999 at Massapequa
Hospital for pneumonia, kidney, and bladder
problems, in 2000 at Brunswick Hospital for
a fibroid tumor, in 2006 at Plainview
Hospital for a cholecystectomy, in 2007 at
Good Samaritan Hospital for low potassium,
and in 2009 at Winthrop Hospital for a
double bypass surgery. (AR at 186-87.)

On June 11, 2012, plaintiff was
consultatively examined by Dr. Joyce
Graber at the request of the Social Security
Administration. (AR at 186-89.) Plaintiff
reported that she had a double bypass in
2009, had suffered from hearing loss for the
past eight years, and had reflux disease for
many years, which caused her to develop
laryngitis so that it was difficult for her to
speak. (AR at 186.) Plaintiff reported that
she had neck pain for the previous few
months due to a degenerative disk disease.
(Id.) Plaintiff noted that her pain varied but
could be an 8 on a scale of 1 to 10. (Id.)
Plaintiff further reported that she had
fibromyalgia for ten years, Epstein Barr for
eight years, sciatic back pain for five years,
and osteoporosis for eight years. (Id.)
Plaintiff also reported that she had cataracts
developing in both eyes, which she was
informed of six months previously, swelling
of the veins in her legs for many years, and
asthma for ten years. (Id.) Plaintiff also told
Dr. Graber of the recent onset of numbness
on the right side of her face and lower lip,
and a pulling sensation on the right side of
her lip. (Id.) Plaintiff also indicated that she
was told that she had hardening in the
arteries of her head. (Id.) Plaintiff denied
that she had chest pain and reported that she
could walk fifteen to twenty minutes outside
if the surface was flat. (Id.) Plaintiff denied
any history of high blood pressure, diabetes,
heart attack, emphysema, or seizure
disorder. (AR at 187.)

Dr. Graber’s examination of the plaintiff
indicated that she had 20/25 vision, that
plaintiff appeared to be in “no acute
distress” as to her general appearance, gait,
and station, and did not require assistive
devices or help changing for the exam or
getting off or on the exam table. (AR at
187.) Dr. Graber noted that plaintiff’s
cervical spine showed “full flexion but
limited extension to about 30 degrees.” (AR
at 188.) No motor or sensory deficit was
noted. (Id.) Dr. Graber found plaintiff’s skin
and lymph nodes, eyes, ears, abdomen,
chest, and lungs to be normal, and that she
had intact hand and finger dexterity. (AR at
188-89.)
Dr. Graber’s diagnoses were (1) double
bypass by history; (2) hearing loss by
history; (3) reflux by history; (4) neck pain
by history; (5) fibromyalgia by history; (6)
Epstein Barr by history; (7) sciatic back pain
by history; (8) osteoporosis by history; (9)
cataracts by history; (10) vein swelling in
her legs by history; (11) numbness on right
side of face by history; and (12) asthma by
history. (AR at 189.) Dr. Graber’s opinion
was that plaintiff’s prognosis was “fair” and
that she needed to “avoid activities requiring
moderate or greater exertion due to her
history of heart disease” as well as “smoke,
dust, and other known respiratory irritants
due to her history of asthma.” (Id.)
On July 25, 2012, Dr. Luis Alejo
performed nerve condition studies on
6

plaintiff, which were consistent with lumbar
radiculopathy. (AR at 228-31.)

On December 3, 2012, plaintiff saw Dr.
Luis Alejo of CIMCLI complaining of
persistent right knee pain and buckling. (AR
at 243.) After examination, Dr. Alejo
recommended an MRI to rule out meniscal
or ligament injury, and noted that plaintiff
would not tolerate physical therapy at the
time. (AR at 245.) On December 8, 2012,
plaintiff had an MRI of her right knee,
which revealed “bone marrow edema in the
patella
which
has
a
multipartite
configuration, consistent with the presence
of a fracture, possibly superimposed on a
multipartite patella.” (AR at 209.) Minimal
displacement was present and there was
associated bone marrow edema in the
anterior aspect of the lateral femoral condyle
and soft tissue edema in the anterior aspect
of the knee. (AR at 209-10.) The MRI also
revealed “[d]egeneration of the medical
meniscus with suggestion for a small
horizontal tear involving its posterior
aspect” and tricompartment degenerative
changes. (AR at 210.)

On September 4, 2012, plaintiff saw Dr.
Aristide Burducea, an orthopedist, for an
initial exam due to complaints of lower back
pain and lower extremity pain, specifically
in her right thigh and both calves. (AR at
328-30.) Plaintiff reported that the problem
originated years ago as a result of an
unknown trauma, and described the pain as
sharp and stabbing and ranked her pain as a
10 out of 10. (AR at 328.) Plaintiff indicated
that the pain was getting worse and that her
symptoms were aggravated by walking. (Id.)
Dr. Burducea’s examination of plaintiff’s
back revealed paraspinal muscle spasms,
and her lumbar sacral spine range of motion
showed
decreased
forward
flexion,
extension, and lateral flexion. (AR at 329.)
Dr. Burducea ordered continued physical
therapy and right L4 and L5 transforaminal
epidural steroid injections. (AR at 329-330.)
Plaintiff refused any medications at the time.
(AR at 330.)

Plaintiff subsequently saw Dr. Charles
Ruotolo and Maria Trotta, a physician’s
assistant, of Total Orthopedics & Sports
Medicine for her right knee pain on
December 14, 2012. (AR at 317-19.)
Plaintiff reported that she fell on the
sidewalk three weeks previously and landed
directly on her knee, and that she had pain
and swelling in the knee since then. (AR at
317.) Plaintiff assessed her knee pain as an 8
on a 1 to 10 scale. (Id.) Plaintiff was
diagnosed with a closed patella fracture,
prescribed a Bledsoe brace, and told to ice
and rest as needed. (AR at 319.) At a followup appointment with Dr. Ruotolo and Ms.
Trotta on January 11, 2013, plaintiff
complained of weakness in her leg and
intermittent “sharp, throbbing and burning
pain” assessed at a 6 to 8 out of 10. (AR at
314.) The diagnosis remained the same, and
plaintiff was recommended to start therapy
for her knee. (AR at 315.) On January 21,

Dr.
Burducea
administered
transforaminal epidural injections at
plaintiff’s right L4 and L5 for therapeutic
purposes on September 8, 2012, October 4,
2012, and October 17, 2012. (AR at 32227.) On November 10, 2012, Dr. Burducea
administered lumbar facet joint injections on
plaintiff’s side. (AR at 320-21.)
On October 15, 2012, Dr. Mary Lanette
Rees, of the Dallas Disability Process Unit
endorsed the July 26, 2012 assessment of A.
Pestsoulakis, a disability analyst, that
plaintiff had the residual functional capacity
to perform light work. (AR at 202.) Dr. Rees
noted that “based on the medical findings,
claimant exams do[] not support the degree
of limitations reported by claimant” and that
the “evidence in the file does not support a
fully favorable determination.” (Id.)
7

2013, Dr. Ruotolo and Ms. Trotta also
signed a letter stating that plaintiff was
under their active care for a closed fracture
of her right patella and was “temporarily
totally disabled and unable to work until
repeat observation.”2 (AR at 211.)

returned to Dr. Ruotolo and Ms. Trotta for a
follow-up on March 5, 2013, and reported
that the glucosamine “improved her pain
tremendously.” (AR at 308.) Plaintiff
reported that her past night pain was
resolved, but that she still had pain with
kneeling and pressing on the knee cap,
which she assessed at a 6 out of 10 and
described as intermittent. (Id.) Dr. Ruotolo
and Ms. Trotta directed plaintiff to continue
to take Cosamin DS. (AR at 309.) At
plaintiff’s April 5, 2013 follow-up with Dr.
Ruotolo and Ms. Trotta, plaintiff reported
that she felt as if she had “reached a plateau
in her pain improvement,” and that she had
pain with going up and down stairs and
kneeling, which she assessed as a 6 out of 10
and described as intermittent. (AR at 305.)
Dr. Ruotolo and Ms. Trotta indicated that
plaintiff should return after authorization for
viscosupplementation was obtained. (AR at
306.) On April 22, 2013, Dr. Ruotolo and
Ms. Trotta injected plaintiff’s right knee
with supartz, and on April 29, 2013, they
injected plaintiff’s right knee with supartz a
second time, and directed that she return in
one week for a third injection. (AR at 299304.)

On December 12, 2012, plaintiff
returned to Dr. Pasternak with complaints of
dyspepsia that started to exacerbate two
months previously. (AR at 250.) Dr.
Pasternak recommended another EGD,
which was performed on December 17,
2012, and which revealed hiatus hernia,
erosive esophagitis, and gastritis with
mention of hemorrhage. (AR at 249, 251.)
Dr. Pasternak recommended a diet and antireflux regimen, and prescribed a PPI. (AR at
249.) On January 10, 2013, plaintiff returned
to Dr. Pasternak and reported no new
abdominal pain since the endoscopy. (AR at
247.) Dr. Pasternak prescribed Omeprazole
for twelve weeks with the plan to
subsequently taper it. (AR at 248.)
Plaintiff had a follow-up appointment
with Dr. Ruotolo and Ms. Trotta on
February 1, 2013, at which plaintiff
continued to complain of intermittent
anterior knee pain and grinding, but rated
the pain at a lower level of 4 out of 10. (AR
at 311.) Plaintiff reported that she had been
doing therapy on her own and was taking
Tylenol for pain. (Id.) An X-ray of
plaintiff’s knee showed a healed patella
fracture, and Dr. Ruotolo and Ms. Trotta
recommended that plaintiff start taking
glucosamine for pain and continue to do
therapy at home. (AR at 312.) Plaintiff

On April 16, 2013, plaintiff saw Dr.
Katherine Ann Carroll, a neurologist and
colleague of Dr. Singh at Massapequa
Neurologic PC, complaining of headaches.
(AR at 252-54.) Plaintiff reported that she
stopped taking Savella, which had helped
with her headache pain, and in the past
month, her symptoms returned. (AR at 252.)
Plaintiff also complained of “episodes of
right lower lip pulling to the side,”
numbness of the right lip, and intermittent
right hand numbness and weakness at times.
(Id.) Dr. Carroll noted that plaintiff had a
history of occipital neuralgia, and was
experiencing a return of previous symptoms
of pulling of her lower lip and intermittent
right hand numbness. (AR at 253.) Dr.
Carroll noted that the “abnormalities on the

2

The letter is actually dated January 21, 2012, but
because plaintiff did not see Dr. Ruotolo and Ms.
Trotta until December 2012 (and stated that her knee
injury occurred shortly before that), it appears that
the letter should have been dated January 21, 2013.
Additionally, although Dr. Ruotolo’s name is not
printed below the second signature, the signature on
the letter is consistent with his signatures on
plaintiff’s other medical records.

8

4. Plaintiff’s Testimony at the
Administrative Hearing

VER are not severe or convincing enough to
justify an LP, etc. We will repeat the MRI
Brain to re-evaluate this though.” (Id.) Dr.
Carroll also noted that plaintiff had hearing
loss in the right more than left ear. (Id.)

Plaintiff testified before the ALJ on May
30, 2013. (AR at 27-30.) When asked why
she stopped working, plaintiff testified that
at the time she had heart surgery, her heart
was bothering her, and that she had very bad
acid reflux, which would cause her to lose
her voice. (AR at 27.) Plaintiff began to say
something about her hearing, but was
interrupted by the ALJ who asked whether
her conditions had improved, and she never
finished her explanation.3 (Id.)

3. Additional Medical Evidence Submitted
to Appeals Council
As part of her appeal, plaintiff submitted
Dr. Ruotolo’s May 29, 2013 medical
assessment of ability to do work related
activities. (AR at 332-33.) Dr. Ruotolo
indicated that he had treated plaintiff on a
biweekly basis from December 14, 2013,
through May 6, 2013. (AR at 332.) He wrote
that plaintiff’s lifting/carrying was affected
by her impairment so that she could lift
and/or carry 15-20 pounds “very little” in
the day, and that her standing/walking was
affected by the impairment so that she could
stand and/or walk in total for three hours and
without interruption for 30 minutes. (AR at
332-33.) Dr. Ruotolo further opined that
plaintiff could climb very little up or down
stairs, could not use ladders, could stoop
very little, could never kneel on her right
knee, could crouch very little, could never
crawl, and that balance was not
recommended on her right leg. (AR at 333.)
Dr. Ruotolo indicated that reaching, feeling,
speaking, handling, pushing/pulling, and
hearing were unaffected by plaintiff’s
impairment. (Id.) On June 18, 2013, Dr.
Ruotolo amended his assessment to indicate
that plaintiff’s sitting was affected by the
impairment so that she could only stand for
a maximum of three hours and sit for a
maximum for two hours. (Id.)

B. Procedural History
On May 22, 2012, plaintiff applied for
DIB, alleging disability since March 20,
2011. (AR at 109-10.) Plaintiff’s claim was
initially denied on July 26, 2012. (AR at 34,
38-45.) On August 24, 2012, plaintiff
requested a hearing, (AR at 46-47), and on
May 30, 2013, she and her attorney,
Kenneth S. Beskin, appeared before ALJ
Faraguna. (AR at 25-30.) The ALJ denied
plaintiff’s claim on June 11, 2013, finding
that plaintiff “has not been under a disability
within the meaning of the Social Security
Act from March 20, 2011 through the date
of this decision.” (AR at 8-20.) The ALJ
concluded that plaintiff had “the residual
functional capacity to perform the full range
of sedentary work as defined in 20 CFR
404.1567(a),” and that plaintiff was
“capable of performing past relevant work
as a data entry clerk, an accounts receivable
clerk, and a collections clerk.” (AR at 13,
19.)

Plaintiff also submitted a June 20, 2013
letter from Dr. Greg I. Dash, who indicated
that plaintiff had “significant hearing loss in
both ears,” which resulted in difficulty
hearing, especially when background noise
is present; he recommended the use of
hearing aids. (AR at 334.)

Plaintiff’s counsel also briefly explained that
plaintiff was initially prevented from working due to
her heart disease and reflux, but that she had an
orthopedic injury to her back, which became
exacerbated at a later date. (AR at 29-30.) Plaintiff’s
counsel explained that in plaintiff’s case, “the back
kind of came in as a secondary condition but now
adds to the overall condition.” (AR at 30.)
3

9

On July 18, 2013, plaintiff requested
review by the Appeals Council, which was
denied on October 24, 2014, making the
ALJ’s decision the final decision of the
Commissioner. (AR at 1-7.)

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.

Plaintiff filed this action on December
15, 2014. The Commissioner served the
administrative record and filed an answer on
April 8, 2015, and filed her motion for
judgment on the pleadings on July 23, 2015.
Plaintiff filed her cross-motion for judgment
on the pleadings and opposition to
defendant’s motion on August 25, 2015.
Defendant filed her reply on September 9,
2015.
II.

DISCUSSION

A. 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).

STANDARD OF REVIEW

A district court may set aside a
determination by an ALJ “only where it is
based upon legal error or is not supported by
substantial evidence.” Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998) (citing Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982)). The Supreme Court has defined
“substantial evidence” in Social Security
cases to mean “more than a mere scintilla”
and that which “a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal citation and quotation marks
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Furthermore, “it is up to
the agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
citation and quotation marks omitted); see
also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) (“Where an administrative

The Commissioner has promulgated
regulations
establishing
a
five-step
procedure for evaluating disability claims.
See 20 C.F.R §§ 404.1520, 416.920. The
Second Circuit has summarized this
procedure as follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
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
10

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.

evaluating applications for disability benefit.
(AR at 11-20.)
a. Substantial Gainful Activity
At step one, the ALJ must determine
whether the claimant is presently engaging
in substantial gainful activity. 20 C.F.R. §
404.1520(b). “Substantial work activity is
work activity that involves doing significant
physical or mental activities,” id. §
404.1572(a), and gainful work activity is
work usually done for pay or profit, id.
§ 404.1572(b).
Individuals
who
are
employed are engaging in substantial gainful
activity.

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.

Here, the ALJ determined that Plaintiff
had not engaged in substantial gainful
activity since the alleged onset date of
March 20, 2011. (AR at 13.) Substantial
evidence supports this finding, and plaintiff
does not challenge its correctness.

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)).

b. Severe Impairment
At step two, if the claimant is not
employed, the ALJ determines whether the
claimant has a “severe impairment” that
limits her capacity to work. An impairment
or combination of impairments is “severe” if
it significantly limits an individual’s
physical or mental ability to perform basic
work activities. 20 C.F.R. § 404.1520(c); see
also Perez, 77 F.3d at 46.

B. Analysis
According to plaintiff, the ALJ erred in
failing to fully develop the administrative
record and in failing to properly weigh the
medical evidence. As set forth below, the
Court concludes that the ALJ failed to
properly consider Dr. Ruotolo’s opinion
under the treating physician rule and
remands on this basis.
1.

Here, the ALJ found that plaintiff had
the
following
severe
impairments:
degenerative disk disease of the cervical
spine, lumbar radiculopathy, occipital
neuralgia, and residuals of a right knee
patella fracture. (AR at 13.) The ALJ found
that, although plaintiff also had a congenital
coronary artery anomaly status post
coronary artery bypass graft surgery,
sensorineural hearing loss, essential
hypertension, hyperlipidemia, hemorrhoids,
a hiatal hernia, and gastroesophageal reflux

The ALJ’s Decision

Here, in concluding that plaintiff was not
disabled under the SSA, the ALJ adhered to
the five-step sequential analysis for
11

disorder, there was “no evidence that these
impairments significantly limit her ability to
engage in work related activities.” (Id.) The
ALJ further found that, although plaintiff
claimed that she suffered from Epstein-Barr,
fibromyalgia, and a vision problem, there
was no evidence that she had ever been
diagnosed with those conditions. (Id.)

2010) (finding remand would not be
warranted due to ALJ’s failure to recognize
disc herniation as a severe impairment
because “the ALJ did identify severe
impairments at step two, so that [plaintiff’s]
claim proceeded through the sequential
evaluation process” and ALJ considered the
“combination of impairments” and “all
symptoms” in making determination).

Plaintiff
challenges
the
ALJ’s
determination that her hearing loss and
gastrointestinal impairments were not severe
impairments. As a threshold matter, the
Court notes that the ALJ should have
provided a more detailed explanation of his
decision as to why plaintiff’s other medical
conditions did not constitute severe
impairments. It is difficult to undertake
meaningful review where there is only a
conclusory sentence in support of the nonsevere finding, which does not indicate the
reasoning underlying the decision. However,
the Court finds no reversible error with
regard to the ALJ’s assessment of plaintiff’s
impairments because the ALJ identified
other severe impairments at step two of the
analysis so that plaintiff’s claim proceeded
through the sequential evaluation process,
and in those subsequent steps, the ALJ
considered plaintiff’s claims of hearing loss
and gastrointestinal impairments in addition
to her other impairments. See O’Connell v.
Colvin, 558 F. App’x 63, 65 (2d Cir. 2014)
(finding any error by ALJ in excluding knee
injury as a severe impairment was harmless
because ALJ identified other severe
impairments and considered knee injury in
subsequent steps); Reices-Colon v. Astrue,
523 F. App’x 796, 798 (2d Cir. 2013)
(finding any error by ALJ in excluding
claims of anxiety disorder and panic
disorder from step two of analysis would be
harmless because ALJ identified other
severe impairments and specifically
considered the claims of anxiety and panic
attacks in subsequent steps); Stanton v.
Astrue, 370 F. App’x 231, 233 n.1 (2d Cir.

c. Listed Impairments
At step three, if the claimant has a severe
impairment, the ALJ next considers whether
the claimant has an impairment that is listed
within Appendix 1 of the regulations. When
the claimant has such an impairment, the
ALJ will find the claimant disabled without
considering the claimant’s age, education, or
work experience. 20 C.F.R. § 404.1520(d).
Here, the ALJ found that none of
plaintiff’s impairments, alone or in
combination, met or medically equaled the
severity of one of the listed impairments in
the Listing of Impairments, 20 C.F.R. Part
404, Subpart P, Appendix 1. (AR at 13.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness.
d. 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
perform her past relevant work, the ALJ will
find that she is not disabled. Id.

12

In this case, the ALJ found that plaintiff
had the “residual functional capacity to
perform the full range of sedentary work as
defined by 20 CFR 404.1567(a).” (AR at
13.) The ALJ concluded that plaintiff was
capable of performing her past relevant
work as a data entry clerk, accounts
receivable clerk, and collections clerk
because such work did not require the
performance of work-related activities
precluded by her residual functional
capacity. (AR at 19.)

19.) The ALJ further noted that Trotta
described the plaintiff as “temporarily
disabled” and the record indicated that
plaintiff’s condition significantly improved
in a relatively short period after her injury;
thus, the ALJ determined that Trotta’s
opinion should be given little weight. (Id.)
The ALJ also explained that he gave little
weight to the state agency disability
analyst’s opinion because a “state disability
analyst is not a professional and their [sic]
opinions represent administrative findings
rather than medical opinions.” (Id.) The ALJ
also determined that Dr. Rees’ opinion
should not be “given great weight” because
she never had the opportunity to personally
examine the plaintiff or review the medical
evidence submitted after she submitted her
opinion, and because her opinion was “not
fully supported by the objective medical
evidence.” (Id.) Specifically, the ALJ noted
that “it is reasonable to assume that the
claimant would not be able to stand and
walk for a total of six hours in an eight-hour
workday due to her right knee impairment.”
(Id.) The ALJ further determined that Dr.
Graber’s opinion would not be “given great
weight” because, although he personally
examined the plaintiff, his opinion was
“somewhat vague” and “not fully supported
by the objective medical evidence.” (Id.)

The ALJ noted that plaintiff alleged
disability due to back, neck, and heart
problems, hearing loss, fibromyalgia,
Epstein-Barr, and acid reflex, and testified
that she had migraines, blurry vision, and a
hearing problem. (AR at 14.) The ALJ
further noted that plaintiff indicated that she
stopped working because “her heart was
‘bothering’ her, her reflux was very bad, and
she lost her voice and could not speak.” (Id.)
The ALJ found that, although plaintiff’s
medically determinable impairments “could
reasonably be expected to cause the alleged
symptoms,”
plaintiff’s
“statements
concerning the intensity, persistence and
limiting effects of these symptoms [were]
not entirely credible.” (Id.)
The ALJ described plaintiff’s medical
history as stated in the record in great detail.
(AR at 14-19.) The ALJ then found that, as
for the opinion evidence submitted by
plaintiff, “a physician’s assistant is not an
acceptable medical source” and “opinions
regarding whether a claimant is ‘disabled’
are reserved to the Commissioner of the
Social Security Administration.”4 (AR at

The ALJ articulated that his residual
functional
capacity
assessment
was
“supported by the objective medical
evidence” and plaintiff’s testimony and
statements regarding her daily activities.
(Id.) Specifically, the ALJ noted that it was
reasonable to assume that plaintiff would not
be able to stand and walk for a prolonged
period of time, or six hours in an eight-hour
workday, due to her history of cardiac
surgery, the residuals of her right knee
injury, her cervical degenerative disc
disease, and her lumbar radiculopathy. (Id.)
However, the ALJ found that there was “no
medical evidence such as reports of

Though not entirely clear from the ALJ’s opinion, it
appears that this finding is in reference to the January
21, 2013 letter signed by Dr. Ruotolo and Ms. Trotta,
which indicated that plaintiff was under their active
care for a closed fracture of her right patella and was
“temporarily totally disabled and unable to work until
repeat observation.” (AR at 211.)
4

13

wheezing, shortness of breath or hospital
emergency room treatment that supports a
finding that the claimant needs to avoid
respiratory irritants.” (Id.) The ALJ further
noted that plaintiff did not state in her
application or testimony that her
impairments limited her ability to sit. (Id.)
The ALJ detailed that plaintiff stated that
she cooks on a daily basis, does light
cleaning and laundry, shops twice a week,
socializes with her friends, drives, does
gardening and/or outdoor chores, goes to the
movies once a month, and goes to church
once a week, and reasoned that “[a]ctivities
at this level are not consistent with an
inability to perform any substantial gainful
activity, but are consistent with an ability to
perform sedentary work.” (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
was able to perform her past relevant work
as a data entry clerk, an accounts receivable
clerk, and a collections clerk. (AR at 1920.) Therefore, the ALJ did not evaluate
step five. (Id.)

Plaintiff
challenges
the
ALJ’s
assessment of her residual functional
capacity. For the reasons set forth infra, the
Court finds that the ALJ failed to properly
consider Dr. Ruotolo’s medical opinion in
making this determination.5 Due to 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-CV-643 (JFB), 2013 WL 5274310, at
*11 (E.D.N.Y. Sept. 18, 2013).

2. Treating Physician Rule
Plaintiff argues, among other things, that
the ALJ and Appeals Council failed to
follow the treating physician rule because
the ALJ dismissed Dr. Ruotolo’s opinion,
reasoning that Ms. Trotta was not an
acceptable medical source. The Court agrees
that the ALJ failed to apply the proper
standard for evaluating the medical opinion
of Dr. Ruotolo, and remands the case on this
basis.
a. Legal Standard

5

To the extent that plaintiff argues that the ALJ
failed to consider all of her impairments in assessing
her residual functional capacity, the Court disagrees.
The ALJ noted, in detail, plaintiff’s medical history
and treatment, including that involving her occipital
neuralgia, hearing loss, osteoarthritis, and
gastrointestinal issues, (AR at 14-19), and indicated
that he “considered all symptoms and the extent to
which these symptoms can reasonably be accepted as
consistent with the objective medical evidence” in
making his determination. (AR at 13.) Nonetheless,
the Court finds that the ALJ’s assessment of
plaintiff’s residual functional capacity still warrants
remand due to the failure to follow the treating
physician rule, as discussed infra.

The Commissioner must give special
evidentiary weight to the opinion of a
treating physician. See Clark, 143 F.3d at
118. The “treating physician rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000);
see, e.g., Rosa v. Callahan, 168 F.3d 72, 7814

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 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.

79 (2d Cir. 1999); Clark, 143 F.3d at 118.
The rule, as set for 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 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 opinions 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, 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.”).

“‘Furthermore, the ALJ has the duty to
recontact a treating physician for
clarification if the treating physician’s
opinion is unclear.’” Stokes v. Comm’r of
Soc. Sec., No. 10-CV-0278 (JFB), 2012 WL
1067660, at *11 (E.D.N.Y. Mar. 29, 2012)

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
15

(quoting Ellett v. Comm’r of Soc. Sec., No.
1:06-CV-1079 (FJS), 2011 WL 1204921, at
*7 (N.D.N.Y. Mar. 29, 2011)); see also
Calzada v. Astrue, 753 F. Supp. 2d 250, 277
(S.D.N.Y. 2010) (“If the ALJ is not able to
fully credit a treating physician’s opinion
because the medical records from the
physician are incomplete or do not contain
detailed support for the opinions expressed,
the ALJ is obligated to request such missing
information from the physician.”); Mitchell
v. Astrue, No. 07-CV-285 (JSR), 2009 WL
3096717, at *17 (S.D.N.Y. Sept. 28, 2009)
(“If the opinion of a treating physician is not
adequate, the ALJ must ‘recontact’ the
treating physician for clarification.” (citing
20 C.F.R. §§ 404.1512(e), 416.912(e))).
Such an obligation is linked to the ALJ’s
affirmative duty to develop the record. See
Perez, 77 F.3d at 47.

impairment and ability to work, but need not
be assigned controlling weight.” Genier, 298
F. App’x at 108 (citing 20 C.F.R. §
416.913(d)(1)).
However, “[w]hen a treating physician
signs a report prepared by a nurse
practitioner [or a physician’s assistant] (an
‘other source’ whose opinions are not
presumptively entitled to controlling
weight), the report should be evaluated
under the treating physician rule unless
evidence indicates that the report does not
reflect the doctor’s views.” Djuzo v. Comm’r
of Soc. Sec., No. 5:13-CV-272 (GLS/ESH),
2014 WL 5823104, at *4 (N.D.N.Y. Nov. 7,
2014); Waters v. Astrue, No. 5:10-CV-110
(CR), 2011 WL 1884002, at *8, n.5 (D. Vt.
May 17, 2011) (“Cases have held that when
a doctor and a physician’s assistant sign the
same reports, ‘the opinions [are] those of
[the treating physician] as well as those of
[the physician’s assistant.]’”) (alteration in
original) (quoting Riechl v. Barnhart, No.
02-CV-6169 (CJS), 2003 WL 21730126, at
*11 (W.D.N.Y. June 3, 2003)). Courts that
have dealt with the issue of a failure to apply
the treating physician rule to statements
signed by a doctor as well as a physician’s
assistant or nurse practitioner have
consistently remanded for a new hearing.
See, e.g., Riechl, 2003 WL 21730126, at *11
(remanding where ALJ indicated he was
giving less weight to doctor’s opinions than
he otherwise would because he believed the
opinions set forth under doctor’s signature
were essentially those of the physician’s
assistant even though both doctor and
physician’s assistant signed the statements);
Djuzo, 2014 WL 5823104, at *4 (remanding
case where appeals council failed to evaluate
report prepared by a nurse practitioner and
co-signed by a doctor under the treating
physician rule). Further, if an ALJ has any
doubts as to whether an opinion signed by
both a doctor and a physician’s assistant is
the opinion of the doctor, he should

b. Analysis
The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Ruotolo, the treating
physician who co-signed the January 21,
2013 letter with Ms. Trotta.
The Commissioner correctly notes that
physicians’ assistants are not considered an
“acceptable medical source” to whom the
treating physician rule applies. See 20
C.F.R. § 404.1513(a); see also Genier v.
Astrue, 298 F. App’x 105, 108-09 (2d Cir.
2008) (“[M]any of the key medical opinions
cited during the benefits period at issue were
those of a physician’s assistant and a nurse
practitioner—and not a physician. As such,
the ALJ was free to discount the
assessments accordingly in favor of the
objective findings of other medical doctors.
There was no treating physician error.”)
Instead, “nurse practitioners and physicians’
assistants are defined as ‘other sources’
whose opinions may be considered with
respect to the severity of the claimant’s
16

“develop[ ] the record by seeking
clarification” from the doctor. Riechl, 2003
WL 21730126, at *11.

kneeling, pressing on her knee cap, and
going up and down stairs. (AR at 305-12.)
Further, she was subsequently treated with
supartz injections for her knee. (AR at 299304.) Thus, the Court disagrees with the
Commissioner’s assertion that the January
21, 2013 opinion was totally inconsistent
with the record overall such that the result
would have been the same had the ALJ
considered the letter under the treating
physician rule. Further, none of these points
articulated by the Commissioner were made
by the ALJ; rather, the defendant is
assuming that these were the factors that the
ALJ had in mind in refusing to give Dr.
Ruotolo’s opinion controlling weight. Such
assumptions are insufficient as a matter of
law to bolster the ALJ’s decision. See
Newbury v. Astrue, 321 F. App’x 16, 18 (2d
Cir. 2009) (“A reviewing court ‘may not
accept appellate counsel’s post hoc
rationalizations for agency action.’”
(quoting Snell, 177 F.3d at 134)).

The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Ruotolo because he only
attributed the January 21, 2013 letter to Ms.
Trotta, who he found was “not an acceptable
medical source.” (AR at 19.) Because the
letter was signed by Dr. Ruotolo, who is
unequivocally an acceptable medical source,
in addition to Ms. Trotta, the ALJ erred in
failing to evaluate it under the treating
physician rule. Because the ALJ failed to
address the factors set out in 20 C.F.R. §
404.1527(d)(2) with respect to the January
23, 2013 letter, a remand is necessary.
Further, to the extent that the
Commissioner argues that the ALJ was
correct in not assigning significant weight to
the January 21, 2013 letter because it was
conclusory and unsupported by medical
evidence, the ALJ has a duty to recontact the
treating physician for clarification if the
treating physician’s opinion is unclear.
Thus, to the extent that the ALJ believed
that the letter lacked medical evidence to
support its conclusion that plaintiff was
disabled, he should have contacted the
physician for clarification. See Stokes, 2012
WL 1067660, at *11; Mitchell, 2009 WL
3096717, at *17. Additionally, although the
Commissioner argues that the January 21,
2013 letter was totally inconsistent with the
record overall and that Dr. Ruotolo and Ms.
Trotta’s subsequent
treatment
notes
demonstrate that plaintiff was healed in four
months, the record does not bear that out.
Although the medical records from her
February 1, 2013 appointment indicate that
plaintiff’s fracture had healed and she
reported that her pain level had gone down
to a 4 out of 10, at her March 5, 2013 and
April 5, 2013 appointments, she assessed her
pain at a 6 and still reported pain while

Thus, in light of the ALJ’s attribution of
the January 21, 2013 letter to Ms. Trotta
alone, the Court concludes that a remand is
necessary so that the ALJ can consider Dr.
Ruotolo’s opinion under the treating
physician rule.6 Given the failure to properly
6

Plaintiff also argues that the Appeals Council failed
to consider new and material evidence (namely, the
May 29, 2013 medical assessment of Dr. Ruotolo and
June 20, 2013 letter from Dr. Dash). The Appeals
Council indicated that it received additional evidence
consisting of a “Representative Brief,” “Physical
RFC Assessment from Dr. Ruotolo dated 5/19/2013,”
and “Medical Statement from Dr. Dash dated
6/20/2013,” which it made a part of the record. (AR
at 5.) In the Appeals Council’s denial of plaintiff’s
request for review, the Appeals Council stated that it
considered “the additional evidence listed on the
enclosed Order of Appeals Council” in making its
determination that the ALJ’s decision was not
“contrary to the weight of the evidence currently of
record.” (AR at 1-2.) This was insufficient and
constitutes a further ground for remand. See Glessing
v. Comm’r of Soc. Sec., No. 13-CV-1254 (BMC),
2014 WL 1599944, at *14 (E.D.N.Y. Apr. 21, 2014)

17

apply the treating physician rule, remand is
appropriate for such a determination.7

Moreover, as noted above, on remand, the
ALJ also shall consider the new evidence
presented to the Appeals Council and allow
the plaintiff to supplement her testimony, if
she wishes, at the hearing.

(finding remand warranted where Appeals Council
listed physician’s letter among additional evidence
received and made part of the record, but merely
stated that the newly submitted information did “not
provide a basis for changing the Administrative Law
Judge’s decision.”); see also James v. Comm’r of
Soc. Sec., No. 06-CV-6108 (DLI/VVP), 2009 WL
2496485, at *11 (E.D.N.Y. Aug. 14, 2009); Toth v.
Colvin, No. 5:12-CV-1532 (NAM/VEB), 2014 WL
421381, at *6 (N.D.N.Y. Feb. 4, 2014). “[W]here
newly submitted evidence consists of findings made
by a claimant’s treating physician, the treating
physician rule applies, and the Appeals Council must
good give reasons for the weight accorded to a
treating source’s medical opinion.” James, 2009 WL
2496485, at *10. Contrary to defendant’s argument
that detailed analysis is not required in denial notices
issued by the Appeals Council, the treating physician
rule nonetheless applies and requires that good reason
be provided for disregarding a treating physician’s
opinion. See Glessing, 2014 WL 1599944, at *14
(remanding for failure to provide rationale for
disregarding newly submitted evidence of treating
physician’s opinion in Appeals Council’s denial of
request for review); Toth, 2014 WL 421381, at *6
(same). Thus, on remand, the ALJ should also
consider Dr. Ruotolo’s report and Dr. Dash’s letter,
and evaluate them in accordance with the treating
physician rule.

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
Dated:

February 25, 2016
Central Islip, NY

***
Plaintiff is represented by John W. DeHann
of The DeHann Law Firm P.C., 300 Rabro
Drive East, Suite 101, Hauppauge, NY
11788. The Commissioner is represented by
Robert L. Capers, United States Attorney,
Eastern District of New York, by Vincent
Lipari, 610 Federal Plaza, Central Islip, NY
11722.

7

Plaintiff also argues that the ALJ failed to fully
develop the administrative record. Plaintiff is correct
that it is well-established that the ALJ must
“‘affirmatively develop the record in light of the
essentially non-adversarial nature of a benefits
proceeding’” Tejada v. Apfel, 167 F.3d 770, 774 (2d
Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996)), and that the ALJ’s regulatory
obligation to develop the administrative record exists
even when the claimant is represented by counsel or
by a paralegal at the hearing, Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999); Pratts, 94 F.3d at 37. As
noted supra, the ALJ interrupted plaintiff in the
middle of her explanation of why she stopped
working, (AR at 27), and the hearing transcript
consists of a total of four pages. Thus, the Court has
some concern that plaintiff had additional testimony
to offer with respect to her medical condition and the
impact of that condition on her daily activities. In an
abundance of caution, and in light of the remand with
respect to the need to properly apply the treating
physician rule and to consider the new evidence

presented to the Appeals Council, the Court also
directs that the ALJ allow plaintiff to supplement her
previous testimony with respect to plaintiff’s medical
condition, symptoms, and the impact of her condition
on her daily activities.

18