Latney v. Colvin

Filing 19

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 herein, the Commissioner's motion for judgment on the pleadings is denied. Plai ntiff'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 2/18/2016. (Dolecki, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-7508 (JFB)
_____________________

JAMES CRAIG LATNEY,
Plaintiff,
VERSUS

CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
February 18, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff James Craig Latney (“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 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.
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 properly weigh the medical
evidence; and (2) failing to properly evaluate
plaintiff’s credibility.
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. Lieberman. Although the ALJ
cited other medical evidence in support of his
position, the ALJ did not apply all of the
required factors or specifically explain how
the other evidence undermined the treating
physician’s opinion regarding plaintiff’s

inability to work. Accordingly, remand is
warranted.
I.

continue walking. (AR at 167.) He stated that
he had problems paying attention because he
was “in a lot of pain,” but that he could follow
written and spoken instructions and usually
finish what he started “not at once but over
time.” (Id.) Plaintiff indicated that he did not
have trouble remembering things. (AR at
168.) Plaintiff reported that stress or changes
in schedule heightened his “already existing
aches and pain.” (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 he thought that he
first had the pain in 1995 and that the pain
first began to affect his activities after his
second knee operation. (Id.) He indicated that
he was receiving medical treatment from Dr.
Lieberman and had an MRI done to evaluate
his pain. (Id.) Plaintiff indicated that his pain
consisted of “sharp pains in knees and back”
and “aches and spasms, stabbing.” (Id.) He
reported that he needed special help or
reminders to take care of his personal needs
and grooming, as well as to take medication,
but did not elaborate on what kind of help he
needed. (AR at 169.) Plaintiff indicated that
it was hard for him to get off the toilet once
he sat down on the seat. (Id.) Plaintiff
reported that he could prepare canned or
microwavable food, though he stated that he
did not prepare food when asked how often
he prepared foods or meals. (Id.) He stated
that he would stop at friends’ or family
members’ homes to eat. (Id.) Plaintiff stated
that he could take out small loads of garbage,
but that he needed help doing laundry and
could not do house or yard work because he
was not able to stand longer than seven to ten
minutes. (AR at 170.) Plaintiff reported that
he would go outside “as often as possible,”
but that he would not go out due to his back
and knee pain and because his medication
made him drowsy. (Id.) Plaintiff stated that
he could go out alone but preferred not to do
so. (Id.) He indicated that he had a driver’s
license but did not drive because he took “too
many medications.” (AR at 171.)

1. Personal and Work History
Plaintiff was born on May 20, 1966, and
was forty-six years old at the time of the
ALJ’s decision. (AR at 163.) Plaintiff has two
years of college education. (AR at 139.)
Prior to January 2009, plaintiff worked as
a truck driver for two years, which was
described by the ALJ as “generally heavy in
exertion, required lifting/carrying up to one
hundred pounds.” (AR at 27, 139.) He
previously worked as a tent builder and a
roofer/painter. (AR at 139.) Plaintiff has not
worked since April 24, 2012, the application
date. (AR at 23, 36.)
On June 7, 2012, plaintiff completed a
“Function Report,” which detailed his daily
activities, as well as how his condition
affected his ability to perform various tasks.
(AR at 163-74.) Plaintiff indicated that he
was limited in walking because his “knees
and back just can’t take the pain after a
while,” that sitting “gets uncomfortable after
[a] few minutes,” that he is limited in
climbing the stairs because his “knees don’t
bend far and a lot of pain when [he] push[es]
off 1 leg,” that his knees were “too bad” to
kneel, and that he had “limited motion” to
squat. (AR at 166.) Plaintiff stated that he
could walk one or two blocks before having
to stop and rest, and that he would have to rest
five to seven minutes before he could
2

Plaintiff reported that he did not shop,
and stated that he could not pay bills though
he could count change and handle a savings
account, and that his ability to handle money
had not changed since his injury began. (Id.)
Plaintiff indicated that his hobbies included
reading and playing games, and that he did
these activities “as often as possible.” (Id.)
Plaintiff reported that he was no longer able
to play sports or drive, and that he was always
drowsy. (AR at 172.) Plaintiff noted that he
would talk on the phone three times a week
and would go to friends’ homes on a regular
basis. (Id.) He reported that his social
activities were impacted by his injuries
because he could not stand or sit for too long.
(Id.)

every day. (Id.) Dr. Cooperman further
indicated that plaintiff sometimes felt
shooting pain behind his right thigh and that
plaintiff’s pain was “severe.” (Id.) An X-ray
of plaintiff’s lumbar spine showed moderate
degenerative disc disease at the L5-S1. (Id.)
No joint swelling was noted, and plaintiff’s
strength and sensation were intact in his
lower extremities. (Id.) Dr. Cooperman noted
mild tenderness to palpitation of the lumbar
spine with full range of motion and that
straight leg rising was negative bilaterally.
(Id.) Dr. Cooperman’s impression was low
back pain and arthralgia, and he prescribed
Voltaren, Vicodin, and Flexeril, and referred
plaintiff to orthopedic and cardiology
specialists. (Id.) At a follow-up appointment
on March 16, 2011, plaintiff reported that he
still had pain, but it was improving with
medication. (AR at 264.) However, plaintiff
reported that the medication did not last the
full twelve hours so he had been doubling up
on medication. (Id.) Dr. Cooperman noted
that plaintiff’s arthritis panel was within
normal limits, and that plaintiff had seen a
cardiologist but had not yet made an
orthopedist appointment. (Id.)

Plaintiff reported that he would get sharp
pains in his back, legs, and knees when he
lifted items, and would get back spasms and
“excruciating pain” when he stood. (Id.) He
further reported that sitting, standing, and
walking brought on his pain. (AR at 173.) He
indicated that he felt the pain in his knees and
“all over [his] back but mostly lower back.”
(Id.) He reported that his pain had gotten
worse over the years and that he felt the pain
“all day every day and night.” (Id.) Plaintiff
stated that he took Soma, Percocet, and
Meloxicam for his pain, but that the
medication “doesn’t really stop the pain” and
just made him tired. (Id.)

On January 11, 2012, plaintiff visited Dr.
Gregory Lieberman of Orlin & Cohen
Orthopedics Associates, complaining of
lower back pain, mid aspect with spasm.1
(AR at 244-45.) Plaintiff reported that his
pain was located at his spine/back, neck, right
knee, and left knee, and described the pain as
dull/aching and stabbing. (Id.) Plaintiff
reported that his pain was at a 9 out of 10
when at rest, 9 to 10 out of 10 in severity, and
that it had been present for twelve years. (Id.)
Plaintiff indicated that the medications Soma
and Mobic helped his pain. (Id.) A physical
examination of plaintiff revealed muscle
spasm and diminished rotation in his back,
including spine. (AR at 245.) Plaintiff had a

2. Medical History
Beginning in January 27, 2010, plaintiff
was treated by Dr. Paul Cooperman (AR at
259.) On March 1, 2011, Dr. Cooperman
noted plaintiff’s history of knee surgeries,
including ACL and MCL repairs, and that he
had multiple broken bones over the years.
(AR at 262.) Dr. Cooperman noted that
plaintiff complained of arthritic pain and disc
problems in his lower back that he said he felt
1

The January 11, 2012 form indicates that plaintiff
was there for a follow-up visit and alludes to a prior

visit. (AR at 244.) However, the record is devoid of
any other evidence of a prior visit to Dr. Lieberman.

3

forward flexion of 60 degrees, no radicular
symptoms, and was intact in the bilateral
lower extremities. (Id.) Dr. Lieberman
diagnosed plaintiff with a bulging disc,
muscle spasm, and lumbago syndrome, and
directed plaintiff to ice the affected areas and
follow a home exercise program. (Id.) Dr.
Lieberman prescribed
plaintiff with
Meloxicam and Soma. (Id.)

examination revealed muscle spasm,
diminished rotation, a forward flexion of 60
degrees, and no radicular symptoms. (Id.) Dr.
Lieberman diagnosed plaintiff with a bulging
disc, muscle spasm, lumbago syndrome,
osteoarthritis of knee, and internal
derangement of knee joint. (Id.) Dr.
Lieberman noted that plaintiff should try
glucosamine and chondroitin, and that
plaintiff did not want lumber epidural steroid
injections. (Id.) Dr. Lieberman again directed
plaintiff to ice the affected areas and follow
the home exercise program, and prescribed
Soma, Meloxicam, and Percocet. (Id.)

Plaintiff returned to Dr. Lieberman on
February 15, 2012. (AR at 246-47.) Dr.
Lieberman noted that plaintiff was known to
have lower back and knee issues, was holding
off on injections, and was requesting renewal
of his prescriptions. (AR at 246.) Plaintiff
again indicated that his pain was located at
his spine/back and right and left knees. (Id.)
Plaintiff described the pain as dull/aching and
sharp, and assessed it as a 9 out of 10 when
he was resting, 10 out of 10 when active, and
10 out of 10 in severity. (Id.) Plaintiff’s
physical examination revealed similar results
as the prior examination, and Dr.
Lieberman’s assessment of plaintiff’s
condition remained the same. (AR at 247.)
Plaintiff was again directed to ice the affected
areas and follow a home exercise program;
no new medications were prescribed. (Id.)

On June 11, 2012, plaintiff saw Dr. Joyce
Graber for a consultative exam at the request
of the Social Security Administration. (AR at
238-41.) Dr. Graber noted plaintiff’s
complaints of joint pain and stiffness in both
knees that had existed for many years, and
that plaintiff assessed his right knee pain as a
10 out of 10 and left knee pain as an 8.5 out
of 10. (AR at 238.) Dr. Graber noted that
plaintiff reported that he could walk about
one and a half blocks before having to stop,
and that he had surgery on his left knee in
1982 and on his right knee in 1996. (Id.) Dr.
Graber further indicated that plaintiff
reported constant back pain assessed at a 10
out of 10, from which he had suffered for 12
years. (Id.) Dr. Graber indicated that plaintiff
was taking Meloxicam daily, Soma three
times a day, and Percocet every four hours.
(Id.) Dr. Graber noted that plaintiff lived with
his family and friends, showered and dressed
himself on a daily basis, watched television,
listened to the radio, read, went out to get
fresh air, and socialized with friends. (AR at
238-39.) Dr. Graber indicated that plaintiff
did not cook, clean, do laundry, or shop. (AR
at 238.)

On May 9, 2012, plaintiff returned to Dr.
Lieberman for a follow-up appointment,
complaining of “lower back disc bulges and
knee stiffness after sitting and immobile.”
(AR at 228-29.) Dr. Lieberman indicated that
home exercise and medications helped, but
plaintiff still described his pain as a 9 out of
10 when he was resting, 10 out of 10 when
active, and 9 out of 10 in severity, and
dull/aching and shooting in nature. (AR at
228.) The range of motion in plaintiff’s knees
was 130 degrees when in flexion, and testing
of both knees revealed patella grind positive
and positive crepitus with range of motion.
(AR at 229.) Dr. Lieberman also noted that
palpitation of both knees revealed tender
patella, and that plaintiff’s lumbar

Dr. Graber’s medical examination of
plaintiff revealed that he appeared to be in no
acute distress, and that his gait and stance
were normal. (AR at 239.) Dr. Graber
4

reported that plaintiff could not walk on his
heels and toes, and declined to squat because
it would be too painful and he would have
difficulty standing up. (Id.) Dr. Graber noted
that plaintiff did not use an assistive device,
did not require help changing or getting on
and off the exam table, and was able to rise
from a chair without difficulty. (Id.) Dr.
Graber reported that plaintiff’s cervical spine
showed full flexion, extension, lateral
flexion, and full rotary movements
bilaterally. (AR at 240.) Dr. Graber did not
find scoliosis or kyphosis or abnormality in
plaintiff’s thoracic spine. (Id.) Dr. Graber
found that plaintiff’s lumber spine showed
limited flexion extension to about 20 degrees,
and that lateral flexion and rotation were
intact bilaterally. (Id.) Dr. Graber reported
that plaintiff had full range of motion of the
shoulders, elbows, forearms, and wrists
bilaterally, but limited range of motion of his
hips to 90 degrees flexion extension
bilaterally. (Id.) Plaintiff’s interior and
exterior rotation on the right was found to be
limited to 20 degrees and on the left to 30
degrees, backward extension was limited to
50 degrees bilaterally, abduction to 20
degrees bilaterally, and adduction to 10
degrees bilaterally. (Id.) Plaintiff reported
pain in his back during those movements.
(Id.) Dr. Graber noted that plaintiff’s flexion
extension of his knees was limited to 90
degrees on the right and 100 degrees on the
left. (Id.) Dr. Graber also noted that an X-ray
revealed degenerative changes of the lumbar
spine and surgery on plaintiff’s right knee.
(AR at 241; see also AR at 242-43.)
Plaintiff’s examination was otherwise
normal. (AR at 238-41.)

On June 20, 2012, plaintiff returned to
Dr. Lieberman, complaining again of lower
back and knee pain, and also indicated that he
was trying to walk to lose weight, which was
causing lower back pain. (AR at 297-98.)
Plaintiff described his pain as a 9 out of 10
when he was resting, 10 out of 10 when
active, and 9 out of 10 in severity, and
dull/aching and sharp and shooting in nature.
(AR at 297.) Physical examination of
plaintiff’s knees revealed tender patella upon
palpitation, and positive patella grind and
positive crepitus with range of motion. (AR
at 298.) Plaintiff’s range of motion in both
knees was noted as 130 degrees, and his
lumbar examination revealed muscle spasms,
diminished rotation, and a range of motion of
forward flexion 60 degrees. (Id.) Dr.
Lieberman diagnosed plaintiff with a bulging
disc, muscle spasm, lumbago syndrome,
osteoarthritis of knee, and internal
derangement of knee joint, and indicated that
plaintiff had tried glucosamine and
chondroitin without sucess. (Id.) Dr.
Lieberman again directed plaintiff to ice the
affected areas and follow a home exercise
program. (Id.) Dr. Lieberman noted that
plaintiff did not want LESI or HA injections,
and would need a letter of medical necessity
for orthovisc injections in both knees. (Id.)
Plaintiff again returned to Dr. Lieberman
on July 18, 2012, August 15, 2012, and
September 27, 2012. (AR at 299-304.)
Plaintiff’s description of his pain levels and
Dr. Lieberman’s assessment of plaintiff were
largely similar to plaintiff’s June 20, 2012
visit. (Id.) However, Dr. Lieberman noted on
July 18, 2012, that plaintiff told him that the
copay for orthovisc was too high so Dr.
Lieberman suggested that plaintiff try
Synvisc, Suprutz, or Euflexxa to see if they
were less expensive. (AR at 299-300.) On
August 15, 2012, Dr. Lieberman directed
plaintiff to “do Synvisc one in future and to
see pain management.” (AR at 302.) On
September 27, 2012, Dr. Lieberman noted

Dr. Graber diagnosed plaintiff with back
pain by history and bilateral knee pain by
history. (AR at 240-41.) Dr. Graber’s opinion
was that plaintiff had a “mild limitation for
squatting, bending, climbing and other such
activities.” (AR at 241.)
5

that plaintiff felt better and did not want
injections, but was considering pain
management and would possibly do Synvisc
one in the future. (AR at 303-04.) On October
17, 2012, plaintiff had another very similar
follow-up appointment with Dr. Lieberman,
except that plaintiff described the severity of
his pain at 10 out of 10, and 9 out of 10 at
rest. (AR at 305-06.) Plaintiff indicated again
that he felt better and did not want injections,
and was requesting renewal of his
prescriptions. (AR at 305.)
On December 26, 2012, plaintiff visited
Dr. Lieberman and reported that he used his
friend’s rocicontin, which helped him. (AR at
307-09.) Dr. Lieberman noted that plaintiff
complained of a “new flare without any
injury” and described his back pain as
radiating down his legs. (AR at 307.) In
addition to plaintiff’s prior conditions
previously noted, Dr. Lieberman wrote that
radicular symptoms were “present for +
radicular with extension/lateral bending” and
that X-rays of plaintiff’s knees showed
degenerative changes. (AR at 308.) Dr.
Lieberman again recommended icing and
home exercise, and prescribed Percocet. (AR
at 309.) The reports of plaintiff’s March 6 and
March 13, 2013 visits were again very similar
to the previous reports. (AR 310-15.)
However, in a note dated April 24, 2013, and
appearing on the March 13, 2013 visit record,
Dr. Lieberman noted that plaintiff was “still
totally disabled.” (AR at 315.)

plaintiff with osteoarthritis of both knees, and
lumbar disc bulges and osteoarthritis. (AR at
287.) Dr. Lieberman opined that plaintiff’s
prognosis was “poor.” (Id.) Dr. Lieberman
indicated that clinical findings supporting his
diagnosis included restricted range of motion
in plaintiff’s knees and lower back, crepitus,
and grinding with motion. (Id.) Dr.
Lieberman also cited an MRI of plaintiff’s
lumbosacral spine and bulging disks, and Xrays of plaintiff’s knees that showed
osteoarthritis. (AR at 288.) Dr. Lieberman
noted that plaintiff’s primary symptoms were
pain, swelling, and decreased motion, and
that his symptoms and functional limitations
were reasonably consistent with his physical
impairments. (Id.) Dr. Lieberman described
plaintiff’s pain as dull, aching, sharp, and
stabbing, located in both knees and the lower
back, present every day intermittently, and
precipitated by any activity. (Id.) Dr.
Lieberman estimated both plaintiff’s pain and
fatigue as a 9 out of 10 (severe), and reported
that he was not able to completely remove
plaintiff’s pain or symptoms with medication
without unacceptable side effects. (AR at
289.) Dr. Lieberman reported that plaintiff
was taking Percocet, Soma, and Mabic, and
that these medications had the side effects of
drowsiness, impaired judgment, and stomach
issues. (AR at 291.) Dr. Lieberman indicated
that he had not substituted medications to try
to reduce symptoms or relieve side effects,
but that plaintiff had tried physical therapy.
(Id.)

On March 18, 2013, Dr. Lieberman
completed a Disability Questionnaire. (AR at
287-94.) Dr. Lieberman indicated that he had
seen plaintiff since January 24, 2011, had
most recently seen plaintiff on March 13,
2013, and saw plaintiff “every 6 weeks or
so.” (AR at 287.) Dr. Lieberman indicated
that the earliest date to which the described
symptoms and functional limitations applied
was more than twelve months prior to the
assessment. (AR at 293.) He diagnosed

Dr. Lieberman opined that plaintiff could
sit for one hour in an eight-hour work day and
stand/walk for one hour. (AR at 289.) Dr.
Lieberman further estimated that plaintiff
could occasionally (described as “up to 1/3 of
an 8 hour work day”) lift or carry 10-20
pounds, and could frequently (described as
“up to 2/3 of an 8 hour work day”) lift or
carry up to 10 pounds. (Id.) Dr. Lieberman
indicated that plaintiff did not have
significant limitations in doing repetitive
6

reaching, handling, fingering, or lifting. (AR
at 290.) Dr. Lieberman opined that plaintiff
would need to alternate positions between
sitting and standing/walking every 15
minutes in order to relieve pain or other
symptoms. (Id.) Dr. Lieberman noted that
plaintiff would have no limitation in
grasping, turning, twisting objects, using
fingers and hands for fine manipulations, or
using arms for reaching (including
overhead). (Id.) Dr. Lieberman indicated that
plaintiff would be limited in working at a
regular job on a sustained basis due to his
inability to push, pull, bend, or stoop. (AR at
293.)

3. Additional Medical Evidence Submitted
to Appeals Council
As part of his appeal, plaintiff submitted
additional records from his treatment with
Dr. Lieberman from June 20, 2012 through
August 2013.2 (AR at 334-82.) In the records
of plaintiff’s treatment following March
2013, plaintiff continued to complain of
similar back and knee pain, and Dr.
Lieberman’s assessment of plaintiff’s
condition was consistent with earlier
findings. (AR at 334-36, 376-78.) Dr.
Lieberman also opined that due to his knee
and back pain, plaintiff was unable to
perform any type of work for up to one year.
(AR at 336; see also AR at 378).

Dr. Lieberman opined that plaintiff’s
condition interfered with his ability to keep
his head and neck in a constant position, such
as looking at a computer screen or down at a
desk, and thus, plaintiff could not sustain fulltime employment at a job that required that
specific ability on a sustained basis. (AR at
291.) Dr. Lieberman reported that plaintiff’s
experience of pain, fatigue, or other
symptoms was frequently severe enough to
interfere with his attention and concentration.
(Id.) Dr. Lieberman opined that plaintiff’s
impairments lasted or could be expected to
last at least twelve months, that plaintiff was
not a malingerer, and that psychological or
emotional factors did not contribute to the
severity of plaintiff’s symptoms and
limitations. (AR at 292.) Dr. Lieberman
indicated that plaintiff was capable of
handling low work stress, that his
impairments were likely to produce good and
bad days, and that he would likely be absent
from work more than three times per month
due to his condition. (Id.)

4. Plaintiff’s Testimony at the
Administrative Hearing
Plaintiff testified before the ALJ on
March 19, 2013. (AR at 35-50.) Plaintiff
testified that he had not worked since he filed
his Social Security claim in April 2012
because he had a lot of pain in his knees and
lower back, and because his pain medication
made him drowsy so he could not continue
his work as a truck driver. (AR at 36.)
Plaintiff reported that other side effects from
his
medication
included
difficulty
remembering things, pain in his side near his
kidneys, and mood swings. (Id.) Plaintiff
testified that he could only walk about a block
and a half to two blocks before he had to sit
down due to his back and knee pain, and that
he could only stand about four to five
minutes, and sit for ten to fifteen minutes
before having to readjust himself. (AR at 37.)
He testified that his most comfortable
position was laying on his side with a pillow
between his legs and that he would lie like
AR at 334-36, 373-75), plaintiff’s August 28, 2013
visit, (AR at 376-78), and plaintiff’s patient intake
forms for his appointments with Dr. Lieberman, (AR
at 355-70).

2

Many of these records detailed his 2012 treatment by
Dr. Lieberman and, thus, were duplicates of
documents previously submitted to the ALJ. The
additional evidence consisted of records of plaintiff’s
June 3, 2013 visit, which was submitted twice, (see

7

that three to four times a day for twenty-five
to thirty minutes each time. (AR at 37-38.)

he did not need it to walk. (AR at 49-50.)
Plaintiff indicated that the cane was not
prescribed by a doctor. (AR at 50.) Plaintiff
reported that he did not wear any sort of brace
and had never had injections in his back,
wrists, or neck for pain. (AR at 46-47.)

Plaintiff testified that he did not have his
own home but that he did not consider
himself homeless because he would stay with
family and friends. (AR at 38.) He reported
that he was married but had been separated
since 2009. (Id.) Plaintiff testified that he had
some difficulties with self-care, such as
bathing and getting up from the toilet. (AR at
39-40.) However, plaintiff testified that he
could shower by himself, cut his own hair,
shave, and dress himself. (AR at 42-43.)
Plaintiff testified that he believed he would
be able to do laundry but that his mother
always did it for him, and opined that he
would be able to vacuum and sweep but had
never tried. (AR at 40, 43.) Plaintiff reported
that he did not make his bed, wash dishes,
mop floors, take out the garbage, or pay bills.
(AR at 43-44.) Plaintiff testified that he could
not climb the stairs, but had no trouble
feeding himself, opening doors or drawers,
picking up coins from a table, or writing. (AR
at 44-46, 49.) Plaintiff testified that he
enjoyed playing video games. (AR at 45.)

Plaintiff testified that he had “very much,
a lot of pain” during the hearing, and that it
was up to an 11 on a scale of 10. (AR at 47.)
The ALJ repeatedly asked plaintiff if he
wanted an ambulance called, but plaintiff
testified that he would be okay because he
had been going through the pain for years and
knew that the hospital would not be able to
do anything for him. (AR at 47-49.) Plaintiff
then reassessed his pain level to a 9 when his
representative indicated that a 10 would
mean that he would not be able to walk out of
the room himself. (AR at 49.)
B. Procedural History
On April 23, 2012, applied for DIB,
alleging disability since January 1, 2000, due
to knee and back pain. (AR at 101-109, 134.)
Plaintiff’s claim was initially denied, (AR at
52, 56-63), and plaintiff requested a hearing
before an ALJ. (AR at 64-65.) On March 19,
2013, plaintiff and his representative Ms.
Costa appeared before ALJ Seymour Rayner.
(AR at 33-51.) On May 2, 2013, the ALJ
denied plaintiff’s claim, finding that he was
not disabled under the Act. (AR at 18-32.)
The ALJ found that, although plaintiff had
the severe impairments of status post bilateral
knee surgeries for torn MCLs/RCLs,
osteoarthritis of bilateral knees, and
degenerative lumbar disks, he had the
residual functional capacity to perform the
full range of sedentary work as defined in 20
C.F.R. § 416.967(a). (AR at 23.) Although
the ALJ found that plaintiff was unable to
perform any past relevant work, he found that
“there [were] jobs that exist in significant
numbers in the national economy that the
claimant can perform.” (AR at 27-28.)

Plaintiff reported that he could use the
microwave to prepare food, but could not use
a stove or oven because he was unable to
stand to watch the food and might fall asleep
if he sat down. (AR at 40-41.) Plaintiff
testified that he could usually open a can with
a can opener. (AR at 46.) Plaintiff testified
that he was “always falling asleep” on a daily
basis when he was taking his medication.
(AR at 41.) Plaintiff reported that he saw his
doctor on a monthly basis for pain
management and checkups. (AR at 41-42.)
Plaintiff testified that the medications helped
him a “little bit” by putting him to sleep so he
would not feel the pain. (AR at 47.) Plaintiff
testified that he walked with a cane “most of
the time” but did not bring it to his hearing.
(AR at 46, 49-50.) Plaintiff stated that he had
used the cane to lean on for six years, though
8

On July 5, 2013, plaintiff requested
review by the Appeals Council, (AR at 1617), which was denied on November 5, 2014,
making the ALJ’s decision the final decision
of the Commissioner. (AR at 1-6.)

the court should not substitute its judgment
for that of the Commissioner.”).
III.

A. The Disability Determination

Plaintiff filed this action on December 24,
2014. The Commissioner served the
administrative record and filed an answer on
March 20, 2015, and filed her motion for
judgment on the pleadings on June 19, 2015.
Plaintiff filed his cross-motion for judgment
on the pleadings on July 20, 2015. Defendant
filed her reply on August 24, 2015.
II.

DISCUSSION

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
decision rests on adequate findings sustained
by evidence having rational probative force,

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
claimant disabled. However, if the
claimant does not have a listed
impairment, the [Commissioner]
9

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
benefits. (AR at 23-28.)

disability

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 application date of April 24,
2012. (AR at 23.) 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 his capacity to work. An impairment
or combination of impairments is “severe” if
it significantly limits an individual’s physical
or mental ability to perform basic work
activities. 20 C.F.R. § 404.1520(c); see also
Perez, 77 F.3d at 46.

B. Analysis
According to plaintiff, the ALJ erred in
failing to properly weigh the medical
evidence and in failing to properly evaluate
plaintiff’s credibility. 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. Lieberman, should not
be afforded controlling weight, and remands
on this basis.
1.

for

Here, the ALJ found that Plaintiff had the
following severe impairments: status post
bilateral knee surgeries for torn MCLs/RCLs,
osteoarthritis of bilateral knees, and
degenerative lumbar disks. (AR at 23.) The
ALJ also found that, although plaintiff
alleged disability due to a leaky heart valve,
that impairment did “not cause more than a
minimal limitation in the ability to perform
basic work activity,” and thus, was
“nonsevere.” (Id.) Substantial evidence

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
10

supports these findings, and plaintiff does not
challenge their correctness.

workday; he can occasionally push, pull,
balance, stoop, kneel, crouch and climb stairs
or ramps, but never climb ladders, ropes or
scaffolds.” (Id.)

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).

The ALJ found that plaintiff’s medically
determinable impairments could reasonably
be expected to cause his alleged symptoms.
(AR at 24.) However, the ALJ concluded that
the plaintiff’s “statements concerning the
intensity, persistence and limiting effects of
these symptoms are not entirely credible.”
(Id.) The ALJ then provided a detailed
summary of the medical evidence and
plaintiff’s testimony. (AR at 24-27.) The ALJ
concluded that “great weight cannot be given
to the claimant’s treating orthopedist, Dr.
Lieberman, because it is not supported by the
objective medical evidence.” (AR at 27.)
However, the ALJ gave “significant weight”
to the opinion of Dr. Graber, finding it was
“supported by the objective medical evidence
and consistent with the record as a whole.”
(Id.)

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 23.)
Substantial evidence supports this finding,
and plaintiff does not challenge its
correctness.
d. Residual Function Capacity and Past
Relevant Work

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 “great weight cannot be
given” to Dr. Lieberman’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).

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.
In this case, the ALJ found that plaintiff
had had the “residual functional capacity to
perform the full range of sedentary work as
defined by 20 CFR 404.1567(a).” (AR at 23.)
The ALJ concluded that plaintiff could “sit
approximately six hours, stand/walk
approximately two hours and occasionally
life/carry ten pounds in an eight-hour
11

e. Other Work

a. Legal Standard

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 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, 7879 (2d Cir. 1999); Clark, 143 F.3d at 118.
The rule, as set for in the regulations,
provides:

In this case, the ALJ found “[c]onsidering
the claimant’s age, education, work
experience, and residual functional capacity,
there are jobs that exist in significant
numbers in the national economy that the
claimant can perform.” (AR at 28.) The
ALJ’s rationale was limited to a one-sentence
explanation: “[b]ased on a residual functional
capacity for the full range of sedentary work,
considering the claimant’s age, education,
and work experience, a finding of ‘not
disabled’ is directed by Medical-Vocational
Rule 201.28.” (Id.) For the reasons set forth
below, the Court finds that there were legal
errors in connection with the ALJ’s
assessment of plaintiff’s residual functional
capacity.

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.

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
determined that “great weight cannot be
given to the claimant’s treating orthopedist,
Dr. Lieberman, because it is not supported by
the objective medical evidence” and instead,
gave significant weight to the consultative
physician Dr. Graber’s opinions. (AR at 27.)
The Court agrees that the ALJ failed to apply
the proper standard for evaluating the
medical opinion of Dr. Lieberman, and
remands the case on this basis.

20 C.F.R. § 404.1527(c)(2).
Although treating physicians may share
their opinion concerning a patient’s inability
to work and the severity of 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
12

opinion of a claimant’s treating physician is
ground for a remand.” Snell, 177 F.3d at 133.

data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).

b. Analysis

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
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

The Court finds that the ALJ failed to
apply the proper standard for evaluating the
opinion of Dr. Lieberman.
The ALJ summarily stated that “great
weight cannot be given to the claimant’s
treating orthopedist, Dr. Lieberman, because
it is not supported by the objective medical
evidence.” (AR at 27.) The ALJ determined
that “[s]ignificant weight [should be] given to
the opinion of the one-time examining
Administrative consultant, Dr. Graber,
because it is supported by the objective
medical evidence and consistent with the
record as a whole.” (Id.)
As discussed below, the reason given by
the ALJ for rejecting Dr. Lieberman’s
opinion is insufficient. The ALJ did not
explicitly consider the several factors
required to decide how much weight to give
the
treating
physician’s
opinion.
Accordingly, the case must be remanded to
the ALJ for further consideration of Dr.
Lieberman’s opinion in light of this Court’s
analysis.
The Court concludes that the ALJ did not
set forth in sufficient detail the reasons for not
affording “great weight” to the treating
physician’s opinion. The Second Circuit has
repeatedly noted that an ALJ must “set forth
her reasons for the weight she assigns to the
treating physician’s opinion.” Shaw, 221
F.3d at 134; see also Taylor v. Barnhart, 117
F. App’x 139, 140-41 (2d Cir. 2004)
(remanding case because ALJ “did not give
sufficient reasons explaining how, and on the
basis of what factors, [the treating
physician’s] opinion was weighed,” and
stating that “we will continue remanding
when we encounter opinions from ALJ’s that
do not comprehensively set forth reasons for
13

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.”).

status as an orthopedic specialist. See, e.g.,
Clark, 143 F.3d at 118.
Dr. Lieberman treated plaintiff regularly,
and his opinion cannot be discarded lightly.
He specifically stated that clinical findings
supporting his diagnosis included restricted
range of motion in plaintiff’s knees and lower
back, crepitus, and grinding with motion, and
that diagnostic findings supporting his
diagnosis included an MRI of plaintiff’s
lumbosacral spine showing osteoarthritis and
bulging discs and X-rays of the knees
showing osteoarthritis. (AR at 287-88.)
However, the ALJ dismissed Dr.
Lieberman’s opinion as not worthy of “great
weight,” reasoning that it was “not supported
by the objective medical evidence.3 (AR at
27.)

In particular, the ALJ did not address
certain of the Halloran factors required when
an ALJ affords a treating source less than
controlling weight, despite the Second
Circuit’s repeated admonitions to do so. For
example, the ALJ’s opinion does not address
“the frequency of examination and the length,
nature, and extent of the treatment
relationship.” Clark, 143 F.3d at 118. Dr.
Lieberman examined and treated plaintiff
since January 24, 2011, and saw plaintiff
approximately every six weeks. (AR at 287.)
In other words, he was “likely to be the
medical professional[ ] most able to provide
a detailed, longitudinal picture of . . . medical
impairment(s) and may bring a unique
perspective to the medical evidence that
cannot be obtained from . . . reports of
individual examinations.” Taylor, 117 F.
App’x at 140 (quoting 20 C.F.R. §
404.1527(d)(2)). Further, the ALJ also failed
to explain his rejection of Dr. Lieberman’s
opinion in reference to Dr. Lieberman’s

Instead, the ALJ credited Dr. Graber, the
physician who performed a consultative
exam of plaintiff at the request of the Social
Security Administration. (Id.) Dr. Graber
evaluated plaintiff on only one occasion, and
it is unclear whether Dr. Graber reviewed
plaintiff’s medical records or diagnostic
testing results. To be sure, the opinion of a
non-treating physician can be overridden, but
only where the evidentiary record supports
that conclusion. Netter v. Astrue, 272 F.
App’x 54, 55-56 (2d Cir. 2008). In other
words, the ALJ must be able to point to
aspects of the record that support Dr.
Graber’s contentions, beyond the contentions
themselves. The ALJ discounted Dr.
Lieberman’s findings, but it is not clear

3

The Court notes that the only specific critique made
by the ALJ of any of Dr. Lieberman’s findings was a
statement that “the treating orthopedist assessed
bulging disc of the lumbar spine although there are no
diagnostic studies in the record indicating this
finding.” (AR at 27.) The ALJ also noted that “[t]here
is no report of lumbar disc herniation or stenosis.
There is no medical evidence of motor strength, reflex,
or sensory deficits in the upper or lower extremities.”
(Id.) However, Dr. Lieberman’s stated reasons for his
diagnosis were based on alternate findings previously

discussed, namely a restricted range of motion in
plaintiff’s knees and lower back, crepitus, and
grinding with motion, an MRI of plaintiff’s
lumbosacral spine showing osteoarthritis and bulging
discs, and X-rays of the knees showing osteoarthritis.
(AR at 287-88.) Thus, the ALJ’s reasons for
dismissing Dr. Lieberman’s opinion largely did not
address the rationale behind Dr. Lieberman’s findings
or explain how his opinion was not supported by
objective medical evidence.

14

which clinical findings, or why they were
determined to be inferior to the findings
recorded by Dr. Graber. Branca, 2013 WL
5274310, at *13; Correale–Englehart v.
Astrue, 687 F. Supp. 2d 396, 431 (S.D.N.Y.
2010) (remanding to the Commissioner
because “the ALJ never followed the
analytical path mandated by regulation,
which requires that he discuss the length of
treating relationship, the expertise of the
treating doctors, the consistency of their
findings and the extent to which the record
offers support for some or all of those
findings”).

there is no indication that the ALJ considered
Dr. Cooperman’s findings in making his
determination. Additionally, none of these
points articulated by defendant 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. Lieberman’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)).

Defendant points to other evidence in the
record that might have supported the ALJ’s
rejection of Dr. Liberman’s opinion. (See
Def.’s Reply at 1-2.) For instance, defendant
argues that a “2011 x-ray of plaintiff’s
lumbar spine revealed only moderate
degenerative disc disease,” “[r]ange of
motion was full in all joints of the upper and
lower extremities,” “[s]ensation was intact
and strength was normal in the lower
extremities,” and “Dr. Lieberman’s own
treatment notes reflected that Plaintiff walked
frequently . . . and did not demonstrate any
knee instability.” (Id.) As an initial matter,
the Court notes that the defendant’s citations
to the 2011 X-ray, and findings of full range
of motion and sensation and strength in the
lower extremities come from the records of
Dr. Cooperman, who does not appear to be an
orthopedic specialist and who recorded these
findings more than a year before plaintiff
sought DIB. (See AR at 259-62.) Further,

In sum, having carefully reviewed the
record, the Court concludes that the ALJ
failed to adequately explain the reasons for
determining that the opinion of the treating
physician, Dr. Lieberman, should not be
afforded controlling weight. Given the failure
to properly apply the treating physician rule,
a remand is appropriate for such a
determination.4
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

4

Plaintiff also contends that the ALJ failed to properly
evaluate plaintiff’s credibility. Because the Court
concludes that the ALJ erred in applying the treating
physician rule, and that a remand is appropriate, the
Court need not decide at this time whether the ALJ
erred in assessing plaintiff’s credibility. The Court
notes that the ALJ concluded that plaintiff’s testimony
regarding “the intensity, persistence and limiting
effects of [his] symptoms” [were] not entirely
credible.” (AR at 24.) The Court recognizes that “[i]t
is the function of the Secretary, not the reviewing

courts, to resolve evidentiary conflicts and to appraise
the credibility of witnesses, including the claimant.”
Aponte v. Sec’y Dep’t of Health & Human Servs., 728
F.2d 588, 591 (2d Cir. 1984) (internal citations,
quotations, and alteration omitted). However, to the
extent that the ALJ, on remand, re-evaluates the
evidence in addressing the treating physician rule, in
accordance with this Memorandum and Order, the
ALJ should also consider whether that re-evaluation
alters his assessment of plaintiff’s credibility in light
of the evidence as a whole.

15

proceedings
consistent
Memorandum and Order.

with

this

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated:

February 18, 2016
Central Islip, NY

***
Plaintiff is represented by Charles E. Binder
of the Law Offices of Harry J. Binder and
Charles E. Binder, P.C., 60 East 42nd Street,
Suite 520, New York, NY 10165. The
Commissioner is represented by Robert L.
Capers, United States Attorney, Eastern
District of New York, by Robert W.
Schumacher, II, 610 Federal Plaza, Central
Islip, NY 11722.

16