Wider v. Colvin

Filing 34

MEMORANDUM OF DECISION & ORDER - As the Defendants only objections pertained to Section V-A-3 of the R&R, the Court reviews the rest of the R&R for clear error. Lewis, 573 F. Supp. 2d at 811; Nelson, 618 F. Supp. at 1189. The Court finds no clear err or. Furthermore, after a de novo review, the Court agrees with the reasoning and result of Section V-A-3, except for that portion which recommends remand for application of the treating physician rule to N.P. Payette. Therefore, the Court adopts the R&R in its entirety with the exception of the discussion of N.P. Payette. As discussed above, N.P. Payette was unable to give a medical opinion, and on remand the ALJ need not ascribe any weight to her opinions. Accordingly, the Plaintiffs motion for a judgment on the pleadings pursuant to Rule 12(c) is granted in part; and the Commissioners motion for a judgment on the pleadings pursuant to Rule 12(c) is denied. The case is remanded for further proceedings consistent with this opinion. The Clerk of the Court is respectfully directed to close this case. So Ordered by Judge Arthur D. Spatt on 3/29/2017. (Coleman, Laurie)

FILED 
CLERK 

4:34 pm, Mar 29, 2017

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
RAY WIDER,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
15-cv-2413 (ADS)(AKT)

-againstCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
---------------------------------------------------------X
APPEARANCES:

Center for Disability Advocacy Rights (CEDAR)
Attorneys for the Plaintiff
100 Lafayette Street
Ste. 304
New York, NY 10013
By:
Christopher James Bowes, Esq., Of Counsel
United States Attorney’s Office for the Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Candace Scott Appleton, Assistant United States Attorney
SPATT, District Judge:
On April 28, 2015, the Plaintiff Ray Wider (the “Plaintiff” or the “claimant”) commenced
this civil action pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the “Act”), challenging
a final determination by the Defendant Acting Commissioner of Social Security Carolyn W.
Colvin (the “Defendant” or the “Commissioner”), that he is ineligible to receive Social Security
disability insurance benefits.

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On October 5, 2016, the Court referred the parties’ cross motions for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(c) to
Magistrate Judge A. Kathleen Tomlinson.
Presently before the Court are the Defendant’s objections to the February 21, 2017 Report
and Recommendation (the “R&R”) of Judge Tomlinson. For the following reasons, the Court
adopts the R&R in its entirety with the exception of its recommendations regarding the opinions
of Nurse Practitioner Donald Payette. Therefore the Court grants in part the Plaintiff’s motion for
judgment on the pleadings pursuant to Rule 12(c); denies the Defendant’s motion for judgment on
the pleadings pursuant to Rule 12(c); and remands the case to the Administrative Law Judge for
proceedings consistent with this opinion.
I. BACKGROUND
A. The R&R
Relevant here, the R&R found that Administrative Law Judge Hilton R. Miller (the “ALJ”)
failed to identify, or acknowledge the treating physician rule; and failed to apply it to the Plaintiff’s
two treating sources, Dr. Yvonne Waldemar (“Dr. Waldemar”) and Nurse Practitioner Donald
Payette (“N.P. Payette”). Because the R&R found that the “ALJ decision [was] infected] with
legal error,” (R&R at 56), it did not analyze whether the ALJ’s decision was supported by
substantial evidence. The R&R recommended that the case be remanded back to the ALJ for the
proper application of the treating physician rule to the opinions of Dr. Waldemar and N.P. Payette.
Based on that, the R&R recommended that the Defendant’s motion for judgment on the pleadings
pursuant to Rule 12(c) be denied; the Plaintiff’s motion for judgment on the pleadings be granted
in part; and the case be remanded to the Commissioner for further proceedings consistent with the
R&R.

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B. The Defendant’s Objections
The Defendant argues that the ALJ did, in fact, identify the treating physician rule; that the
ALJ properly applied it; and that the R&R mistakenly conflates treatment notes with medical
opinion evidence. The Defendant asks that the Court analyze that portion of the R&R de novo,
and to find that the ALJ’s decision was supported by substantial evidence.
C. The Plaintiff’s Arguments
The Plaintiff did not object to any of the R&R’s findings. The Plaintiff argues that the
Court should adopt the R&R because it correctly identifies the need for remand so that the ALJ
can contact the treating sources about his functional capacities.
II. DISCUSSION
A. District Court Review of a Magistrate Judge’s R&R
A district court reviewing a magistrate judge’s report and recommendation “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the magistrate judge’s report
and recommendation, but they must be “specific,” “written,” and submitted “[w]ithin 14 days after
being served with a copy of the recommended disposition.” FED. R. CIV. P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). A district court must conduct a de novo review of those portions of the
R&R or specified proposed findings or recommendations to which timely and proper objections
are made. 28 U.S.C. § 636(b)(1)(C); see FED. R. CIV. P. 72(b)(3) (“The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.”). The district court may adopt those portions of a report
and recommendation to which no timely objections have been made, provided no clear error is

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apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008);
Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
In addition, “[t]o the extent . . . that the party makes only conclusory or general arguments,
or simply reiterates the original arguments, the Court will review the [R&R] strictly for clear
error.” IndyMac Bank, F.S.B. v. Nat’l Settlement Agency, Inc., No. 07–CV–6865, 2008 WL
4810043, at *1 (S.D.N.Y. Oct. 31, 2008); see also Toth v. N.Y. City Dep’t of Educ., No.
14CV3776SLTJO, 2017 WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing courts should
review a report and recommendation for clear error where objections are merely perfunctory
responses, argued in an attempt to engage the district court in a rehashing of the same arguments
set forth in the original petition.” (quoting Ortiz v. Barkley, 558 F. Supp. 2d 444, 451
(S.D.N.Y. 2008))). “The goal of the federal statute providing for the assignment of cases to
magistrates is to increase the overall efficiency of the federal judiciary.” McCarthy v. Manson, 554
F. Supp. 1275, 1286 (D. Conn. 1982), aff'd, 714 F.2d 234 (2d Cir. 1983) (quoting Nettles v.
Wainwright, 677 F.2d 404, 410 (Former 5th Cir. 1982) (en banc)) (footnote omitted). “There is no
increase in efficiency, and much extra work, when a party attempts to relitigate every argument
which it presented to the Magistrate Judge.” Toth, 2017 WL 78483, at *7 (quoting Camardo v.
Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).
B. Judicial Review of an ALJ’s Decision
“Judicial review of the denial of disability benefits is narrow” and “[t]he Court will set
aside the Commissioner’s conclusions only if they are not supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard.” Koffsky v. Apfel, 26 F. Supp. 475,
478 (E.D.N.Y. Nov. 16, 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).

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Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279
F.R.D. 201, 205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if
supported by substantial evidence, are conclusive,” id., and therefore, the relevant question is not
“whether there is substantial evidence to support the [claimant’s] view”; instead, the Court “must
decide whether substantial evidence supports the ALJ’s decision. ” Bonet v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (emphasis in original). In this way, the “substantial evidence” standard is
“very deferential” to the Commissioner, and allows courts to reject the ALJ’s findings “ ‘only if a
reasonable factfinder would have to conclude otherwise.’ ” Brault v. SSA, 683 F.3d 443, 448 (2d
Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (emphasis in original)).
This deferential standard applies not only to factual determinations, but also to inferences and
conclusions drawn from such facts.” Pena v. Barnhart, No. 01-cv-502, 2002 U.S. Dist. LEXIS
21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
1966)).
In this context, “[s]ubstantial evidence means more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Burgess, 537 F.3d at 128 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (internal
quotation marks omitted)). An ALJ’s findings may properly rest on substantial evidence even
where he or she fails to “recite every piece of evidence that contributed to the decision, so long as
the record ‘permits [the Court] to glean the rationale of [his or her] decision.’” Cichocki v. Astrue,
729 F.3d 172, 178 n.3 (2d Cir. 2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.
1983)). This remains true “even if contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp.
337, 340 (E.D.N.Y. 2004) (citing DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998), for

5

the proposition that an ALJ’s decision may be affirmed where there is substantial evidence for
both sides).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review. See Koffsky, 26
F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
C. Applicable Law
The Act defines the term “disability” to mean an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of not less than 12 months.” Burgess
v. Astrue, 537 F.3d 117, 119 (2d Cir. 2008) (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks
omitted). In addition, “[t]he impairment must be of ‘such severity that [the claimant] 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.’ ” Shaw
v. Chater, 221 F.3d 126, 131–32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)).
In determining whether a claimant is disabled, the Commissioner is required to apply the
five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999). The claimant bears the burden of proving the first four steps, but then the burden
shifts to the Commission at the fifth step. Rosa, 168 F.3d at 77. First, the Commissioner considers
whether the claimant is presently working in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next
considers whether the claimant has a “severe impairment” that significantly limits her physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.3d at 77. If
the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the

6

claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed
impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa,
168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If
not, the fourth inquiry is to determine whether, despite the claimant’s severe impairment, the
claimant's residual functional capacity allows the claimant to perform his or her past work. 20
C.F.R. § 404.1520(a)(4)(iv); Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past
work, the Commissioner then determines whether there is other work, such as “light work”
discussed infra, that the claimant could perform, taking into account, inter alia, the claimant's
residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v);
Rosa, 168 F.3d at 77.
D. The Treating Physician Rule
“The method by which the Social Security Administration is supposed to weigh medical
opinions is set forth at 20 C.F.R. § 404.1527(c) [which has the same analytical framework as 20
C.F.R. § 416.927].” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Relevant here, “[t]he
regulations say that a treating physician’s report is generally given more weight than other reports
and that a treating physician’s opinion will be controlling if it is ‘well-supported by medically
acceptable [evidence] and is not inconsistent with the other substantial evidence in [the] record.’ ”
Id. (quoting 20 C.F.R. § 404.1527(c)(2)).
This rule — the “treating physician rule” — reflects the generally-accepted view that “the
continuity of treatment [a treating physician] provides and the doctor/patient relationship he
develops place him in a unique position to make a complete and accurate diagnosis of his patient.”
Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (quoting Mongeur, 722 F.2d at 1039 n.2
(internal quotation marks omitted)); see Genier v. Astrue, 298 F. App’x. 105, 108 (2d Cir. 2008)

7

(noting that the regulations recognize that treating physicians “are likely to be the medical
professionals most likely to provide a detailed, longitudinal picture of . . . medical impairment”
(quoting 20 C.F.R. § 416.927(d)(2))).
Generally, where the ALJ declines to give controlling weight to a treating physician’s
opinion, he must provide the claimant with “good reasons” for doing so, and must consider various
factors to determine how much weight to give the opinion. See Blanda v. Astrue, No. 05-cv-5723,
2008 U.S. Dist. LEXIS 45319, at *18, 2008 WL 2371419 (E.D.N.Y. June 9, 2008); 20 C.F.R. §
404.1527(c)(2). In particular, “to override the opinion of the treating physician, [the Second
Circuit] ha[s] held that the ALJ must [] consider, inter alia, (1) the frequen[cy], length, nature, and
extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency
of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.”
Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess, 537 F.3d at 129).
Where a treating physician’s opinion is contradicted by substantial evidence in the record,
the opinion will not be afforded controlling weight. Snell, 177 F.3d at 133 (“When other
substantial evidence in the record conflicts with the treating physician’s opinion . . . that opinion
will not be deemed controlling.”). Additionally, findings that “a claimant is disabled and cannot
work . . . are reserved to the Commissioner,” and a treating physician’s opinion on these points is
not afforded controlling weight. Id. at 133 (internal citations omitted); see also 20 C.F.R. §
404.1527(e)(1). Thus, the ALJ “considers the data that physicians provide but draws [his or her]
own conclusions as to whether those data indicate disability .” Snell, 177 F.3d at 133.
E. Application to the Facts
As an initial matter, the Court finds that the Defendant has made a timely and proper
objection. The Defendant argues that the law was misapplied in the R&R. It is not a new

8

argument, and the Defendant does not seek to rehash old arguments. Therefore the Court reviews
de novo whether the ALJ correctly applied the treating physician rule to the opinions of Dr.
Waldemar and N.P. Payette.
1. As to whether the ALJ Properly Applied the Treating Physician Rule to the
Opinions of N.P. Payette
The Defendant first argues that the ALJ correctly applied the treating physician rule when
he did not assign any weight to the opinions of N.P. Payette because nurse practitioners cannot
issue medical opinions under the Commissioner’s regulations. The Plaintiff does not address this
objection, but instead focuses his arguments on whether the ALJ has to contact the Plaintiff’s
treating sources. The Court agrees with the Defendant because the statutes and case law are clear
that nurse practitioners cannot issue medical opinions.
Under 20 C.F.R. § 416.927 ALJs are required to weigh and evaluate “every medical
opinion.” Controlling weight can be given to “a treating source’s medical opinion on the issue(s)
of the nature and severity” of the claimant’s impairments if the medical opinion is “well supported
by . . . other substantial evidence . . . .” 20 C.F.R. § 416.927(c)(2).
“Treating source means your own acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you.” 20 C.F.R. § 416.902.
Medical opinions are defined as “statements from acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(2).
20 C.F.R. § 416.913(a) lists the “acceptable medical sources” . . . “who can provide
evidence to establish an impairment.” Neither nurses nor nurse practitioners are listed in 20 C.F.R.
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§ 416.913(a). Nurse practitioners are listed in a subsection of paragraph (d), which states that “[i]n
addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we
may also use evidence from other sources to show the severity of your impairment(s) and how it
affects your ability to work . . . .” 20 C.F.R. § 416.913(d); see also 20 C.F.R. § 416.902
(“Acceptable medical source refers to one of the sources described in § 416.913(a) who provides
evidence about your impairments. It includes treating sources, nontreating sources, and
nonexamining sources.”).
Therefore, since nurse practitioners are not listed as “acceptable medical sources,” they
cannot be “treating sources,” and cannot even give “medical opinions.” ALJs only have to evaluate
and weigh “medical opinions.” 20 C.F.R. § 416.927(c) (“Regardless of its source, we will evaluate
every medical opinion we receive.”); see also Taylor v. Colvin, No. 3:14-CV-0928 (GTS), 2016
WL 1049000, at *5 (N.D.N.Y. Mar. 11, 2016) (“[A]n opinion from a nurse practitioner is not a
medical opinion that is entitled to any particular weight under the regulations.”); Millard v.
Comm’r of Soc. Sec., No. 5:13-CV-00261, 2014 WL 6485807, at *6 (D. Vt. Nov. 19, 2014) (same);
Gallup v. Comm’r of Soc. Sec., No. 6:11-CV-1345 NAM, 2014 WL 2480175, at *6 (N.D.N.Y.
June 3, 2014) (“[A]s a nurse practitioner, she was not an ‘accepted medical source’ . . . .”).
Therefore, the ALJ was not required to give N.P. Payette’s opinion any weight, and the
Plaintiff’s argument that the ALJ should have identified how much weight to give to the N.P. does
not withstand scrutiny. Accordingly, the Court does not adopt that portion of the R&R; and the
portion of the Plaintiff’s motion asking the Court to remand the case for the ALJ to apply the
treating physician rule to N.P. Payette’s opinions is denied.

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2. As to whether the ALJ Properly Applied the Treating Physician Rule to the
Opinions of Dr. Waldemar
The Defendant’s second argument is that Dr. Waldemar’s statements were merely
treatment notes, not a “medical opinion.” The Plaintiff again does not address this argument, but
directs his energies instead to arguing that the ALJ has to contact Dr. Waldemar to obtain a source
statement concerning the Plaintiff’s functional limitations. Although the Court believes that it is
a difficult question, the Court finds that Dr. Waldemar’s statements constitute medical opinions
under the Act. However, the Court finds that the ALJ does not need to contact Dr. Waldemar to
obtain a statement regarding his limitations and residual functional capacity (“RFC”).
As stated above, medical opinions are “statements from acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(2). Dr. Waldemar, a licensed medical physician is an
acceptable medical source. See 20 C.F.R. § 416.913(a)(1) (listing licensed medical physicians as
acceptable medical sources).
Effective March 27, 2017, 20 C.F.R. § 416.913 was amended to give further guidance on
the difference between medical opinions and other statements from physicians. It states that
“[o]ther medical evidence is evidence from a medical source that is not objective medical evidence
or a medical opinion, including judgments about the nature and severity of your impairments, your
medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.”
Id. at § 416.913(3). However, the statute goes on to say “[f]or claims filed (see § 416.325) before
March 27, 2017, ‘other medical evidence’ does not include a diagnosis, prognosis, or a statement
that reflects a judgment(s) about the nature and severity of your impairment(s)).” Id. (internal
quotation marks added). In Section 416.913, which is titled “Categories of evidence,” there are
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five categories of evidence: objective medical evidence, id. at (a)(1) (“medical signs, laboratory
findings, or both”); medical opinion, defined above; other medical evidence; evidence from
nonmedical sources; and prior administrative medical findings.
Therefore, since diagnoses, prognoses, and statements about the severity and nature of
impairments do not fit into the four categories of “other medical evidence,” objective medical
evidence, evidence from a nonmedical sources, or a prior administrative findings, they are medical
opinions. As this claim was filed before March 27, 2017, any diagnoses, prognoses, and statements
about the severity and nature of impairments would accordingly be medical opinions. The earlier
version of Section 416.913, effective from September 3, 2013 to March 26, 2017, does not provide
any such guidance. However, the amended version of 20 C.F.R. 416.913, appears to conform with
the version of 20 C.F.R. § 416.927 discussed above, also effective before March 27, 2017, because
both either explicitly state or imply that diagnoses, prognoses and statements about a claimant’s
impairments constitute medical opinions.
The Second Circuit has not given explicit guidance on the precise difference between
treatment notes and medical opinions. However, it is clear from the case law that they are two
separate categories because the Second Circuit has often held that ALJs can disagree with doctors’
medical opinions when they differ from treatment notes. See, e.g., Monroe v. Comm’r of Soc. Sec.,
No. 16-1042-CV, 2017 WL 213363, at *3 (2d Cir. Jan. 18, 2017) (summary order) (holding that a
court can give less weight to a treating source’s medical opinion where the treatment notes
contradict the opinion); Camille v. Colvin, 652 F. App’x 25, 28 (2d Cir. 2016) (summary order)
(holding that the treatment notes of other doctors can be relied upon to override the medical opinion
of a treating physician); Swiantek v. Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015)
(summary order) (holding that ALJ did not err in failing to obtain a formal medical opinion from

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the Plaintiff’s treating psychiatrist where the ALJ relied on that doctor’s treatment notes); Cichocki
v. Astrue, 534 F. App’x 71, 75 (2d Cir. 2013) (summary order) (holding that the ALJ was not
required to give controlling weight to treating physician’s medical opinion where the treatment
notes contradicted that opinion); Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (summary
order) (holding that ALJ did not need to acquire a medical source statement from the treating
physician when the ALJ had all of the treatment notes from the Plaintiff’s treating physicians);
Bliss v. Comm’r of Soc. Sec., 406 F. App’x 541, 542 (2d Cir. 2011) (summary order) (holding that
the ALJ did not need to notify the treating psychiatrist of inconsistencies between the psychiatrist’s
report and treatment notes).
Here, Dr. Waldemar gave opinions regarding the Plaintiff’s impulse control, insight
judgment, attention, memory, mood, and his ability to carry out daily responsibilities. Dr.
Waldemar diagnosed the Plaintiff with schizoaffective disorder, insomnia related to another
mental disorder, personality disorder and alcohol/cocaine dependence. Dr. Waldemar prescribed
several drugs to the Plaintiff for his psychological issues.
Dr. Waldemar’s notes explicitly include diagnoses and, arguably, statements reflecting
judgments about the nature and severity of the Plaintiff’s impairment. Therefore, the Court finds
that Dr. Waldemar’s notes were medical opinions under the definition of the Act before it was
amended. In the Court’s view, Dr. Waldemar’s notes were more than mere treatment notes—they
did not merely list the symptoms detailed by the Plaintiff and/or the tests performed by the doctor.
See, e.g., Polynice v. Colvin, 576 F. App’x 28, 31 (2d Cir. 2014) (holding that a doctor’s recording
of the plaintiff’s own reports of pain were mere treatment notes); Moua v. Colvin, 541 F. App’x
794, 797 (10th Cir. 2013) (a treatment note that simply documented the patient’s complaints and
prescribed treatments was not a medical opinion); Mapson v. Colvin, No. 14-CV-1257 SRN/BRT,

13

2015 WL 5313498, at *30 (D. Minn. Sept. 11, 2015) (“However, these statements, and others
noted in [the treating physician]’s treatment notes, merely document the Plaintiff’s complaints,
appearance, and the medications prescribed to her.”); cf. Winschel v. Comm’r, 631 F.3d 1176, 1179
(11th Cir. 2011) (“The Commissioner argues that the ALJ was not required to consider the treating
physician's treatment notes because they did not constitute a ‘medical opinion,’ but this argument
ignores the language of the regulations.”); Kaighn v. Colvin, 13 F. Supp. 3d 1161, 1165 (D. Colo.
2014) (holding that notes from a doctor who managed the Plaintiff’s psychiatric medications and
diagnosed the Plaintiff with several psychiatric disorders were medical opinions that the ALJ had
to consider and determine what weight to assign to them). Dr. Waldemar’s notes instead made
judgments on the Plaintiff’s level of impulse control, insight, attention, and memory—and
therefore the severity of his conditions; and diagnosed the Plaintiff.
Therefore, the Court finds that the ALJ erred in not assigning any weight to Dr. Waldemar’s
opinions. Under 20 C.F.R. § 416.927 ALJs are required to weigh and evaluate “every medical
opinion.” “Under the applicable regulations, the Social Security Administration is required to
explain the weight it gives to the opinions of a treating physician.” Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(d)(2) (“We will always give good reasons in our
notice of determination or decision for the weight we give your treating source’s opinion.”)).
Furthermore, the ALJ should have afforded controlling weight to Dr. Waldemar’s opinions,
because Dr. Waldemar was the Plaintiff’s treating physician. The ALJ’ opinion referred to Dr.
Waldemar, though not by name, as “his [referring to the Plaintiff’s] doctor . . . .” (R. at 25). It was
therefore error for the ALJ to not assign any weight to Dr. Waldemar’s opinions; and it was further
error to not assign controlling weight to those opinions.

14

However, the Court does not believe that the ALJ needs to acquire a complete medical
opinion on the Plaintiff’s limitations and residual functional capacity from Dr. Waldemar because
the ALJ had a complete medical record, including all of Dr. Waldemar’s notes. See Swiantek, 588
F. App’x at 84 (holding that the ALJ did not need to acquire a medical opinion on the plaintiff’s
limitations where the ALJ had complete a medical record); Sanchez v. Colvin, No. 13 CIV. 6303
PAE, 2015 WL 736102, at *5 (S.D.N.Y. Feb. 20, 2015) (“[T]he Second Circuit has held that it is
not per se error for an ALJ to make a disability determination without having sought the opinion
of the claimant’s treating physician.” (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 33
(2d Cir. 2013) (“[W]e hold that it would be inappropriate to remand solely on the ground that the
ALJ failed to request medical opinions in assessing residual functional capacity.”)); Pellam, 508
F. App’x at 90 (holding that ALJ did not need to acquire a medical source statement from the
treating physician when the ALJ had all of the treatment notes from the Plaintiff’s treating
physicians).
The Court also finds that the Plaintiff misunderstands the recommendations of the R&R.
It states that “if the ALJ believed that the opinions of Plaintiff’s treating sources . . . were
incomplete or otherwise ambiguous, he had an affirmative obligation to contact these sources in
order to obtain clarification which would assist in his RFC determination and permit him to comply
with the dictates of the treating physician rule.” (R&R at 51) (emphasis added). The R&R does
not hold that the opinions were incomplete or ambiguous; nor does it recommend remand for the
ALJ to obtain clarification from the treating sources, but rather for the purpose of applying the
treating physician rule. The R&R includes similar case law to that discussed above which states
that medical source statements do not need to include a function by function analysis or every
physical limitation. More importantly, as the case law above holds, ALJs do not need to acquire

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medical opinions when they have complete medical records. That is the case here. Therefore, the
ALJ is not required on remand to obtain a function by function analysis from Dr. Waldemar, or an
opinion from him regarding the Plaintiff’s RFC.
Nevertheless, since the ALJ failed to assign any weight to Dr. Waldemar’s opinion, the
Court is compelled to remand the case. “Failure to provide good reasons for not crediting the
opinion of a claimant’s treating physician is a ground for remand.” Snell, 177 F.3d at 133 (quoting
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (internal quotation marks omitted)). As the R&R
stated, “the [ALJ’s] opinion is devoid of any statement or discussion concerning the overall weight,
if any, which was given to th[is] treating source[].” (R&R at 52). The Commissioner’s guidelines
are clear that the ALJ must afford some weight to all medical opinions; and must either give
controlling weight to the medical opinion or a treating source; or good reasons for not affording it
controlling weight. 20 C.F.R. § 416.927. Failure to do so is cause for remand. Schaal, 134 F.3d
at 504. “[O]n this record, we cannot say with certainty what weight should be assigned . . . to the
opinion of plaintiff's treating physician, or whether further clarification of the record with these
regulations in mind might alter the weighing of the evidence.” Id.
Therefore, the Court finds that the ALJ committed legal error by failing to ascribe any
weight to Dr. Waldemar’s medical opinions. The Court is unable to address whether or not the
ALJ’s opinion is supported by substantial evidence because the ALJ committed legal error that
requires remand. “[A] district court may not assess objections as to ‘substantial evidence’ where
an ALJ decision is infected with legal error.” Stango v. Colvin, No. 3:14-CV-01007 (CSH), 2016
WL 3369612, at *16 (D. Conn. June 17, 2016) (citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

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Accordingly, the Court remands the case to the ALJ so that the ALJ can address, with
specificity, the treating records and medical opinions of Dr. Waldemar and either 1) ascribe
controlling weight to them or 2) provide good reasons for the weight they are to be accorded. See
Halloran, 362 F.3d at 32–33.
III. CONCLUSION
As the Defendant’s only objections pertained to Section V-A-3 of the R&R, the Court
reviews the rest of the R&R for clear error. Lewis, 573 F. Supp. 2d at 811; Nelson, 618 F. Supp.
at 1189. The Court finds no clear error. Furthermore, after a de novo review, the Court agrees
with the reasoning and result of Section V-A-3, except for that portion which recommends remand
for application of the treating physician rule to N.P. Payette. Therefore, the Court adopts the R&R
in its entirety with the exception of the discussion of N.P. Payette. As discussed above, N.P.
Payette was unable to give a medical opinion, and on remand the ALJ need not ascribe any weight
to her opinions.
Accordingly, the Plaintiff’s motion for a judgment on the pleadings pursuant to Rule 12(c)
is granted in part; and the Commissioner’s motion for a judgment on the pleadings pursuant to
Rule 12(c) is denied. The case is remanded for further proceedings consistent with this opinion.
The Clerk of the Court is respectfully directed to close this case.

It is SO ORDERED:
Dated: Central Islip, New York
March 29, 2017

__/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge

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