Christiansen v. Colvin

Filing 21

MEMORANDUM & ORDER denying 11 Motion for Judgment on the Pleadings; granting 14 Motion for Judgment on the Pleadings; For the foregoing reasons, the Commissioner's motion (Docket Entry 11) is DENIED, Plaintiff's motion (Docket Entry 14) is GRANTED, and this action is REMANDED for further proceedings consistent with this Memorandum and Order. The Clerk of the Court is directed to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 8/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
GEORGE R. CHRISTIANSEN,
Plaintiff,

MEMORANDUM & ORDER
15-CV-2932 (JS)

-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
John W. DeHaan, Esq.
The DeHaan Law Firm P.C.
300 Rabro Drive East, Suite 101
Hauppauge, NY 11788
For Defendant:

Matthew Silverman, Esq.
United States Attorney’s Office
271 Cadman Plaza East, Seventh Floor
Brooklyn, NY 11201

SEYBERT, District Judge:
Plaintiff George R. Christiansen (“Plaintiff”) brings
this action pursuant to Section 405(g) of the Social Securities
Act, 42 U.S.C. § 405(g), challenging the Commissioner of Social
Security’s (the “Commissioner”) denial of his application for
Social Security disability insurance benefits.

Presently before

the Court are the Commissioner’s motion for judgment on the
pleadings

(Docket

Entry

11)

and

Plaintiff’s

judgment on the pleadings (Docket Entry 14).

cross-motion

for

For the following

reasons, the Commissioner’s motion is DENIED, Plaintiff’s motion
is GRANTED, and this matter is REMANDED to the Commissioner for

1

further

consideration

in

accordance

with

this

Memorandum

and

Order.
BACKGROUND1
I.

Procedural Background
On

security

September

disability

October 15, 2010.

20,

2012,

benefits,

(R. 12.)

Plaintiff

claiming

a

filed

for

social

disability

since

Plaintiff alleges that he is disabled

based on back pain. (R. 15.)

Plaintiff’s application was denied

on December 18, 2012, and on January 9, 2013, he requested a
hearing before an administrative law judge.

(R. 12.)

The hearing

took place on October 15, 2013 before Administrative Law Judge
April Wexler (the “ALJ”).
by

counsel

at

the

(R. 12, 19.)

hearing

and

the

Plaintiff was represented
ALJ

heard

testimony

Plaintiff and Walter J. Mueller, a vocational expert.2

from

(R. 25,

41.)
On December 20, 2013, the ALJ issued a decision finding
that Plaintiff is not disabled.

(R. 19.)

On February 12, 2014,

Plaintiff sought review of the ALJ’s decision by the Appeals
Council.

(R. 7-8.)

On March 27, 2015, the Appeals Council denied

The background is derived from the administrative record filed
by the Commissioner on August 17, 2015. (Docket Entry 7.) “R.”
denotes the administrative record.
1

The ALJ’s decision states that Rocco J. Meola appeared at the
hearing. (R. 12.) However, the transcript of the hearing
indicates that Walter J. Mueller testified by telephone. (R.
41.)
2

2

Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner.

(R. 1-6.)

Plaintiff then commenced this action on May 20, 2015.
The Commissioner and Plaintiff filed cross-motions for judgment on
the

pleadings

respectively.
II.

on

October

30,

2015

and

November

30,

2015,

(Docket Entries 11, 14.)

Evidence Presented to the ALJ
A. Non-Medical Evidence
Plaintiff was forty-three years old at the time of the

administrative hearing.

(R. 15.)

graduate with “some college.”

Plaintiff is a high school

(R. 27.)

From 1991 until 2011,

Plaintiff served as a police officer for the City of New York.
(R. 27.)

Plaintiff testified that he had two back surgeries--one

in 2000 and one in October 2010--and he has not worked since his
second surgery.

(R. 28-29.)

In 2011, Plaintiff retired from the

New York City Police Department and was approved for disability
retirement after he retired.

(R. 27.)

Plaintiff testified that

the surgery helped, but his symptoms are “starting to progressively
get worse.”

(R. 30.)

He stated that when he performs repetitive

actions, he suffers from swelling, pain down his legs, and numbness
in his toe.
stand

for

(R. 30.)
long

Plaintiff testified that he cannot sit or

periods

of

time.

(R.

30.)

He

takes

Cyclobenzaprine, Gabapentin, and Hydrocodone daily and sees a pain
management physician.

(R. 31.)
3

Plaintiff lives with his wife and three children in
Islip, New York.

(R. 26-27.)

His typical day starts with

approximately twenty minutes of stretching.

(R. 32.)

Then,

Plaintiff gets his children up for school and prepares breakfast
and lunch.

(R. 32.)

Plaintiff also does “light house chores

around the house,” such as “light laundry.”

(R. 32.)

Plaintiff

assists his children with their homework, but when his wife comes
home “she usually takes over.”
license and drives.

(R. 32.)

Plaintiff has a driver’s

(R. 27.)

Plaintiff also testified that his back pain limits his
ability to perform certain tasks.

(R. 32-41.)

Plaintiff can make

small meals but is unable to prepare large meals, (R. 40), and is
unable to do any yard work, (R. 34).

He testified that he misses

a lot of his children’s sporting events as he cannot sit or stand
for long periods of time.

(R. 32-33.)

Plaintiff is also unable

to walk or drive long distances without experiencing pain.
38-39.)

(R.

Plaintiff testified that he does not visit with friends

or family, does not have any hobbies, and has not taken any trips.
(R. 34-35.)
Walter J. Mueller, a vocational expert, testified at the
hearing by phone.

(R. 41-44.)

The ALJ asked Mueller about a

hypothetical individual who: (1) is of the claimant’s age and
education; (2) has the past job experience of a police officer;
(3) is limited to sedentary work; (4) can occasionally lift ten
4

pounds; (5) is able to sit for approximately six hours; (6) is
able stand or walk for approximately two hours in an eight hour
day with normal breaks; (7) occasionally climb ramps or stairs;
(8)

can

never

climb

ladders,

ropes,

or

scaffolds;

(9)

can

occasionally balance, stoop, kneel, crouch, and crawl; and (10)
has unlimited ability to push and pull.

(R. 42.)

Mueller

testified that such a person could not perform Plaintiff’s past
work

as

a

police

officer,

but

could

perform

the

following

positions: (1) table worker, (2) order clerk, and (3) document
prep worker.

(R. 42-43.)

However, Mueller testified that an

individual who could only sit for approximately four hours and
stand or walk for two would not be able to perform any jobs in the
labor market.

(R. 43.)

B. Medical Evidence
1.

Dr. Cohen

On October 12, 2010 Dr. Cohen performed a transforaminal
lumbar interbody fusion (TFIL) at L5-S1, a laminectomy at L5
and S1, and posterolateral fusion.

(R. 177, 187.)

On October 14,

2011, a year after surgery, Plaintiff returned to Dr. Cohen.
285.)

(R.

Plaintiff reported that he had improved sixty percent since

the surgery and that epidural steroid injections had helped him
eighty

to

ninety

percent.

(R.

5

285.)

Plaintiff’s

Oswestry

Disability index3 score was thirty percent which is indicative of
a moderate disability. (R. 285.)

Plaintiff rated his lower back

pain as ranging from 3-5/10 and leg pain as ranging from 2-4/10.
(R. 285.)
daily.

Plaintiff was taking Flexeril, Neurontin, and Ibuprofen

(R. 285.)
Plaintiff returned to Dr. Cohen on October 26, 2012,

approximately two years after surgery.

(R. 283.)

Dr. Cohen

reported that Plaintiff’s “preoperative bilateral lower extremity
pain, weakness, and dysfunction have significantly improved” but
Plaintiff suffered some leg pain and back pain to the right of his
midline.

(R. 283.)

Plaintiff reported lower back pain ranging

from 5-6/10 and leg pain ranging from 3-4/10 as well as tenderness
over the right L5 screw.

(R. 283.)

Dr. Cohen noted that

Plaintiff’s Oswestry Disability Questionnaire score was fifty-one
percent. (R. 283.)
On January 25, 2013, Dr. Cohen reported that Plaintiff
has seen at least an eighty percent improvement in his preoperative
symptoms of bilateral leg pain, weakness, and dysfunction.
281.)

(R.

Plaintiff reported that his lower back pain ranged from 3-

“The Oswestry Disability index is a condition-specific outcome
measure used in the management of spinal disorders.” Nelson v.
Astrue, No. 11-CV-3346, 2012 WL 7761489, at *3, n.3 (D. Minn.
Dec. 12, 2012), report and recommendation adopted, 2013 WL
1104265 (D. Minn. Mar. 18, 2013). A score between forty to
sixty percent is considered a “‘severe disability’ whereby pain
is the main problem, but the patient’s daily activities are also
limited.” Id. (citation omitted).
3

6

4/10, his right leg pain ranged from 2-3/10, and his left leg pain
ranged

from

3-4/10.

(R.

281.)

Plaintiff

further

reported

“significant improvement in his preoperative symptoms” but also
reported pain at the site of his construct screw that was not
relieved by epidural injections.

(R. 282.)

Dr. Cohen also noted

that Plaintiff suffered from radiating pain in his right leg when
“sitting for any length of time.”

(R. 281.)

Plaintiff’s Oswestry

Disability Index score was fifty-one percent or severe. (R. 281.)
On

February

22,

2013,

Plaintiff

saw

Dr.

Cohen

and

reported a “slight improvement” in the pain in his lower right
lumbar spine.

(R. 279.)

Plaintiff reported that the surgery

helped him seventy to eighty percent and his lower back pain that
radiates down his legs is “not significantly bothersome.”

(R.

279.)
2.

Dr. Rubin

On November 11, 2010, in response to lower back pain
after his surgery, Plaintiff began receiving treatment from Dr.
Edward Rubin, M.D., a pain management specialist. (R. 228-29.)
Plaintiff reported sharp, radiating pain that is continuous and
“aggravated by activity.”

(R. 228.)

medications help his pain.

Plaintiff also reported that

(R. 228.)

Dr. Rubin prescribed

Plaintiff Percocet, Lyrica, and Gabapentin. (R. 229.)

Plaintiff

visited Dr. Rubin on December 9, 2010, February 7, 2011, May 5,
2011, and June 30, 2011.

(R. 231-42.)
7

Plaintiff reported that

the severity of the pain was 3/10 to 4/10 on average.
231-42.)

(R. 195,

Dr. Rubin continued to prescribe Plaintiff Percocet,

Lyrica, and Gabapentin until May 5, 2011, when Dr. Rubin stopped
prescribing Plaintiff Percocet and Lyrica, and started Plaintiff
on Ibuprofen. (R. 232, 235, 238.)
On July 6, 2011, Dr. Rubin administered an epidural
steroid injection into Plaintiff’s back. (R. 198, 243.)

On

July 28, 2011, Plaintiff reported pain of 4/10 on average and a
fifty percent improvement as a result of the injection.

(R. 245.)

Dr.

continued

Rubin

also

prescribed

Plaintiff

prescribing Gabapentin and Ibuprofen.
On

August

10,

2011,

epidural steroid injection.

Dr.

Flexril

and

(R. 246.)
Rubin

(R. 248.)

administered

another

On August 31, 2011,

Plaintiff saw Dr. Rubin and reported pain of 2/10 on average and
an

eighty

to

ninety

percent

improvement

at

rest

after

the

injection. (R. 250.) Dr. Rubin continued to prescribe Gabapentin,
Ibuprofen, and Flexril, and also gave Plaintiff a prescription to
start Percocet. (R. 251.)
During

a

November

28,

2011

visit

with

Dr.

Rubin,

Plaintiff reported that his back pain was 2/10 at best and 8/10 at
worst.

(R. 253.)

Plaintiff reported that he recently flared his

lower back by trying to jog on a treadmill.
Gabapentin,

(R. 253.)

continued

Plaintiff

on

Percocet.

(R. 254.)

On March 22, 2012, Plaintiff reported that
8

Ibuprofen,

Dr. Rubin

Flexeril,

and

his back pain was 1/10 at best and 5/10 at worst.

(R. 256.)

Rubin continued Plaintiff on the same drug regimen.

Dr.

(R. 257.)

On June 28, 2012, Plaintiff saw Dr. Rubin and rated his
pain as 3/10 at best and 7/10 at worst.

(R. 259.)

reported “increased low back pain with ‘lump.’”

Plaintiff

(R. 259.)

Dr.

Rubin opined that the bump in Plaintiff’s lower back was likely
prosthetic from his previous surgery. (R. 260.)

On October 1,

2012, Plaintiff returned to Dr. Rubin and described his pain as
3/10 at best and 7/10 at worst.

(R. 262.)

Dr. Rubin noted that

an x-ray revealed “no hardware loosening.”

(R. 262.)

However,

Dr. Rubin noted Plaintiff continued to complain of lower back pain
and a “lump” in his right lower back. (R. 263.) Dr. Rubin referred
Plaintiff

to

Dr.

Cohen

for

a

reevaluation

prescribe Gabapentin, Flexeril, and Percocet.
From
Plaintiff

December

visited

Dr.

6,

2012

Rubin

or

through
Thomas

and

continued

to

(R. 263.)
September

Biley,

a

assistant in Dr. Rubin’s practice, six times.

4,

2013

physician’s

(R. 287-304.)

During those visits Plaintiff reported that his pain ranged from
3/10 to 4/10 at best and 7/10 at worst. (R. 287, 290, 293, 296,
299, 302.)
On November 7, 2013, Dr. Rubin completed a “Medical
Assessment

of

questionnaire.

Ability

to

(R. 305-06.)

Do

Work

Related

Activities”

Dr. Rubin stated that Plaintiff can

lift up to fifteen pounds, lift ten pounds for up to one-third of
9

an eight hour day, and cannot lift any weight from one-third to
two-thirds of an eight hour day.

(R. 305.)

Further, Dr. Rubin

found that Plaintiff can stand, walk, or sit for ten minutes
without interruption, and stand, walk, or sit for a total of eighty
minutes in an eight hour work day. (R. 306.)

Dr. Rubin also

concluded that Plaintiff could never climb, stoop, kneel, balance,
crouch, or crawl.

(R. 306.)

Additionally, Dr. Rubin found that

Plaintiff’s ability to push and pull is impaired, but his ability
to reach, feel, speak, handle, and hear are not affected by his
impairment.

(R. 306.)

to fifteen pounds.
3.

Plaintiff’s pushing and pulling is limited

(R. 306.)

Dr. Shtock

On December 5, 2012, Dr. Chaim Shtock, D.O., conducted
an orthopedic examination of Plaintiff pursuant to a referral from
the Division of Disability Determination. (R. 267-72.) Dr. Shtock
reported that Plaintiff complained of lower back pain from “3 to
4/10 at rest to 7/10.”

(R. 267.)

Dr. Shtock observed that

Plaintiff “appeared to be in no acute distress.”

(R. 268.)

Shtock further reported:
The claimant has moderate limitations with
heavy lifting, squatting, kneeling, and
crouching, has moderate limitation with
frequent
stair
climbing,
has
moderate
limitation with walking a long distance, has
a mild to moderate limitations with standing
for long periods, mild to moderate limitations
with sitting long periods, and moderate
limitations with frequent bending. He has no
10

Dr.

limitation performing overhead activities
using both arms. He has no limitation with
using his hands for fine and gross manual
activities. The claimant has no other physical
functional deficits in my opinion.
(R. 269-70.)

Dr. Shtock’s report indicates that an x-ray taken on

December 5, 2012 showed “degenerative changes.”

(R. 269; see also

R. 271 (noting that the x-ray showed “laminectomy and posterior
fusion

with

disc

implant

at

L5-S1”

and

that

there

was

no

“compression fracture”).)
4. Board Determination
On October 11, 2011, the Medical Board Police Pension
Fund Article II (the “Board”) issued a decision on Plaintiff’s
application for accident disability retirement.

(R. 206-11.)

The

Board concluded that it was “impossible for [Plaintiff[ to perform
the full duties of a New York City Police Officer” and recommended
that Plaintiff’s application for accident disability retirement be
approved.

(R. 210.)

The Board noted that Plaintiff’s final

diagnosis was “Low Back Derangement Status Post Surgery x2 with
Residuals”

and

that

“[t]he

competent

causal

[Plaintiff’s] line of duty injury of June 24, 2010.”

factor

is

(R. 210-11.)

DISCUSSION
I.

Standard of Review
In reviewing the ruling of an ALJ, the Court does not

determine de novo whether Plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different
11

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

Instead, this Court must determine whether the ALJ’s findings are
supported by “substantial evidence in the record as a whole or are
based on an erroneous legal standard.”

Persico v. Barnhart, 420

F. Supp. 2d 62, 70 (E.D.N.Y. 2006) (internal quotations marks and
citation omitted).

If the Court finds that substantial evidence

exists to support the Commissioner’s decision, the decision will
be upheld, even if evidence to the contrary exists.

See Johnson

v. Barnhart, 269 F. Supp. 2d 82, 84 (E.D.N.Y. 2003).
“Substantial evidence is such evidence that a reasonable
mind might accept as adequate to support a conclusion.”

Id.

The

substantial evidence test applies not only to the ALJ’s findings
of fact, but also to any inferences and conclusions of law drawn
from such facts.

See id.

To determine if substantial evidence

exists to support the ALJ’s findings, the Court must “examine the
entire record, including contradictory evidence and evidence from
which conflicting inferences can be drawn.”

Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999) (internal quotation marks and citation
omitted).
II.

Determination of Disability
A claimant must be disabled within the meaning of the

Social Security Act (the “Act”) to receive disability benefits.
See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); 42 U.S.C.
12

§ 423(a), (d).

A claimant is disabled under the Act when he can

show 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.”
§ 423(d)(1)(A).

The

claimant’s

impairment

must

42 U.S.C.
be

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.”

42 U.S.C. § 423(d)(2)(A).

The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See 20 C.F.R. §§ 404.1520, 416.920.

First, the Commissioner

considers whether the claimant is currently engaged in “substantial
gainful activity.”

20 C.F.R. § 404.1520(a)(4)(i).

Second, the

Commissioner considers whether the claimant suffers from a “severe
medically determinable physical or mental impairment” or a severe
combination of impairments that satisfy the duration requirement
set forth at 20 C.F.R. § 404.1509.4
Third,

if

consider

the

impairment

whether

the

is

20 C.F.R. §404.1520(a)(4)(ii).

“severe,”

impairment

meets

the
or

Commissioner
equals

any

of

must
the

20 C.F.R. § 404.1509 provides that “[u]nless your impairment is
expected to result in death, it must have lasted or must be
expected to last for a continuous period of at least 12 months.”
4

13

impairments
regulations.

listed
20

in

Appendix

C.F.R.

1

of

the

Social

§ 404.1520(a)(4)(iii).

Security

“These

are

impairments acknowledged by the Secretary to be of sufficient
severity to preclude gainful employment. If a claimant’s condition
meets or equals the ‘listed’ impairments, he or she is conclusively
presumed to be disabled and entitled to benefits.”
Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).

Dixon v.

Fourth, if the

impairment or its equivalent is not listed in the Appendix, the
claimant must show that he does not have the residual functional
capacity

(“RFC”)

employment.

20

to

perform

C.F.R.

tasks

required

in

§ 404.1520(a)(4)(iv).

his
Fifth,

previous
if

the

claimant does not have the RFC to perform tasks in his or her
previous employment, the Commissioner must determine if there is
any other work within the national economy that the claimant is
able to perform.

20 C.F.R. § 404.1520(a)(4)(v).

If not, the

claimant is disabled and entitled to benefits.
The claimant has the burden of proving the first four
steps of the analysis, while the Commissioner carries the burden
of proof for the last step.
(2d Cir. 2013).

Selian v. Astrue, 708 F.3d 409, 418

“In making the required determinations, the

Commissioner must consider: (1) the objective medical facts; (2)
the medical opinions of the examining or treating physicians; (3)
the subjective evidence of the claimant’s symptoms submitted by
the claimant, his family, and others; and (4) the claimant’s
14

educational background, age, and work experience.”
Boryk

v.

Barnhart,

No.

02–CV–2465,

2003

WL

Boryk ex rel.

22170596,

at

*8

(E.D.N.Y. Sept. 17, 2003) (citation omitted).
III.

The ALJ’s Decision
The ALJ applied the five-step analysis described above

and determined that Plaintiff is not disabled.

(R. 12-19.)

At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since October 15, 2010.

(R. 14.)

At step two, the ALJ found that Plaintiff suffered from
lumbar radiculopathy, a severe impairment.
At

step

three,

the

ALJ

(R. 14.)

concluded

that

Plaintiff’s

impairment did not meet or equal the severity of one of the
impairments listed in Appendix 1 of the Social Security regulation.
(R. 14.)

The ALJ found that Plaintiff has the residual functional

capacity to perform the full range of sedentary work as defined in
20 C.F.R. § 404.1567(a).

(R. 15.)

The ALJ further concluded

Plaintiff can “occasionally lift ten pounds, sit for approximately
six hours, stand or walk for approximately two hours in an eight
hour

workday

with

normal

breaks;

perform

unlimited

push/pull

activities; occasionally balance, stoop, kneel, crouch, crawl,
climb ramps/stairs, but never climb ladders, ropes or scaffolds.”
(R. 15.)
At step four, the ALJ concluded that Plaintiff could not
perform his past relevant work.

(R. 17.)
15

Finally, at step five, the ALJ concluded that Plaintiff
could perform other work existing in the national economy based on
his

age,

education,

capacity. (R. 18.)

work

experience,

and

residual

functional

Thus, the ALJ determined that Plaintiff was

not disabled. (R. 18-19.)
In reaching her decision, the ALJ gave “only some weight”
to Dr. Rubin’s Medical Assessment of Ability to Do Work Related
Activities, finding that it was inconsistent with his treatment
notes,

testing,

and

Plaintiff’s improvement.

physical
(R. 17.)

examinations

demonstrating

The ALJ also concluded that

“there is nothing in the record to substantiate the claimant’s
inability to sit for only 80 minutes during the course of an entire
day.”

(R. 17.)

However, the ALJ afforded Dr. Shtock’s opinion

“great” weight based on its consistency with Dr. Cohen’s records.
(R. 17.)
IV.

The ALJ did not reference the Board’s decision.

Analysis of the ALJ’s Decision
The Commissioner filed her motion first and argues that

her decision is supported by substantial evidence and she applied
the correct legal standard.
Entry 12.)

(See generally Def.’s Br., Docket

Plaintiff counters that the ALJ’s decision should be

reversed and remanded on the following grounds: (1) the ALJ’s
evaluation of the medical evidence violated the treating physician
rule; (2) the ALJ failed to consider the Medical Board’s findings;
(3) The ALJ’s RFC assessment is not supported by substantial
16

evidence; and (4) the ALJ did not properly evaluate Plaintiff’s
credibility.

(Pl.’s Br. Docket Entry 14-1, at 13-25.)

The Court

addresses each argument below.
A.

Treating Physician’s Rule
The “treating physician rule” provides that the medical

opinions and reports of a claimant’s treating physicians are to be
given “special evidentiary weight.”5
143 F.3d 115, 118 (2d Cir. 1998).

Clark v. Comm’r of Soc. Sec.,
Specifically, the regulations

state:
Generally, we give more weight to opinions
from your treating sources . . . . 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).

Nevertheless, the opinion of a

treating physician “need not be given controlling weight where [it
is] contradicted by other substantial evidence in the record.”
Molina v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y.
Aug. 7, 2014) (internal quotation marks and citation omitted).

A “treating source” is “your own physician, psychologist, or
other 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.
5

17

When an ALJ does not afford controlling weight to the
opinion of a treating physician, she must consider factors that
include:

“(1) the length of the treatment relationship and

frequency of the examination; (2) the nature and extent of the
treatment relationship; (3) the extent to which the opinion is
supported by medical and laboratory findings; (4) the physician’s
consistency with the record as a whole; and (5) whether the
physician is a specialist.”

Schnetzler v. Astrue, 533 F. Supp. 2d

272, 286 (E.D.N.Y. 2008).

The ALJ must also set forth “‘good

reasons’ for not crediting the opinion of a plaintiff’s treating
physician.”

Id. (citing 20 C.F.R. § 416.927(d)(2)).

See also

Duncan v. Astrue, No. 09-CV-0442, 2011 WL 1748549, at *17 (E.D.N.Y.
May 6, 2011)

(“[a]n ALJ’s failure to explicitly state ‘good

reasons’ for declining to adopt a treating source’s opinion, even
on issues that are determined by the Commissioner, is a ground for
remand”).
1. Dr. Rubin
The Court finds that the ALJ failed to set forth “good
reasons” for declining to give controlling weight to the opinion
of Dr. Rubin.

While the ALJ is not required to provide a “slavish

recitation of each and every [treating physician] factor where the
ALJ’s reasoning and adherence to the regulation are clear,” Atwater
v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013), here, the ALJ failed
to adequately address these factors in determining that Dr. Rubin’s
18

opinion should only be entitled to “some weight.”

The ALJ merely

concluded that the record did not substantiate Plaintiff’s alleged
inability to sit for only eighty minutes per day and that Dr.
Rubin’s opinion “is not completely consistent with the physical
examinations showing the claimant’s overall improvement and his
own treatment notes and testing.”

(R. 17.)

However, the ALJ

failed to state the reasons why Dr. Rubin’s findings were “not
completely consistent” with the record or his own treatment notes.
See, e.g., Floyd v. Colvin, No. 13-CV-4963, 2015 WL 2091871, at *8
(E.D.N.Y. May 5, 2015) (“It is not enough for the ALJ to simply
say that a treating physician’s findings are unsupported by the
record;

the

ALJ

must

provide

reasons

which

explain

that

inconsistency with the[ ] other parts [of the record].”) (internal
quotation marks and citation omitted; alteration in original).
Moreover, while it is appropriate to accord a treating
physician’s opinion less weight based on internal inconsistency,
see Sisto v. Colvin, No. 12-CV-2258, 2013 WL 4735694, at *9
(E.D.N.Y.

Sept.

3,

2013),

the

Court

finds

that

Dr.

Rubin’s

conclusion that Plaintiff could only sit for eighty minutes per
day and is unable to climb, stoop, balance, crouch, or crawl, is
not

necessarily

inconsistent

apparent improvement.

with

treatment

notes

reflecting

The Court acknowledges Dr. Rubin’s notes

indicating an improvement following epidural steroid injections
(R. 245, 250) and that Plaintiff reported pain ranging from 1/10
19

at best to 5/10 at worst in March 2012 (R. 256).

However, in June

2012, Plaintiff reported pain ranging from 3/10 at best to 7/10 at
worst and complained of a lump in his lower right back.
263.)

(R. 259,

Throughout the fall of 2012 and 2013, Plaintiff continued

to report pain ranging from 3-4/10 at best and 7/10 at worst.
287-304.)

(R.

While, as addressed infra, the record requires further

development regarding Dr. Rubin’s opinion, the Court finds that
pain

ranging

from

3-4/10

at

best

to

7/10

at

worst

is

not

necessarily inconsistent with Dr. Rubin’s opinion that Plaintiff
can only sit for eighty minutes per day and has certain physical
limitations.
Similarly,

Dr.

Rubin’s

finding

is

inconsistent with Dr. Cohen’s treatment notes.

not

necessarily

While Dr. Cohen

noted that as of January 2013, Plaintiff had seen at least an
eighty percent improvement in his preoperative symptoms, (R. 281),
Plaintiff reported back pain ranging from 3-4/10 and pain at the
site of his construct screw (R. 281).
February

2013

significantly

that

Plaintiff’s

bothersome,”

one

Although Dr. Cohen noted in

radiating
month

back

earlier

pain
he

was

“not

noted

that

Plaintiff suffers from radiating pain in his right leg when
“sitting for any length of time.”

(R. 279, 281.)

Further, on two

occasions, Plaintiff’s Oswestry Disability Index score was fiftyone percent or severe.

(R. 281, 283.)

It is also worthy of note

that the last record of Plaintiff’s treatment with Dr. Cohen is
20

from February 2013 (R. 279), while Dr. Rubin’s assessment occurred
approximately ten months later in November 2013 (R. 305-06).
Additionally, “the Court must assess whether the ALJ
satisfied his threshold duty to adequately develop the record
before deciding the appropriate weight of a treating physician’s
opinion.”

Khan v. Comm’r of Social Sec., No. 14-CV-4260, 2015 WL

5774828, at *13 (E.D.N.Y. Sept. 30, 2015) (citation omitted).
Pursuant to regulations that took effect on March 26, 2012, the
ALJ may resolve any inconsistency or insufficiency in the evidence
by:

(1)

re-contacting

the

treating

physician;

(2)

requesting

additional existing records; (3) asking the claimant to undergo a
consultative examination at the Commissioner’s expense; or (4)
asking the claimant or others for additional information.
C.F.R. § 404.1520b(c).6

20

The Second Circuit has directed that

notwithstanding the revised 20 C.F.R. § 404.1520b, “it may be
incumbent upon the ALJ to re-contact medical sources in some
circumstances.”
F.3d at 421).

Khan, 2015 WL 5774828, at *14 (citing Selian, 708
In applying 20 C.F.R. § 404.1520b, courts in this

Circuit have held that where additional information is needed
regarding the opinion of a treating physician, the ALJ should

However, the ALJ may choose not to seek clarification from a
medical source where he or she “know[s] from experience that the
source either cannot or will not provide necessary evidence.”
20 C.F.R. § 416.920b(c)(1).
6

21

contact the treating source “for clarification and additional
evidence.”

McClinton v. Colvin, No. 13-CV-8904, 2015 WL 6117633,

at *23 (S.D.N.Y. Oct. 16, 2015) (collecting cases).

But see

Vanterpool v. Colvin, No. 12-CV-8789, 2014 WL 1979925, at *17
(S.D.N.Y. May 15, 2014) (“[b]ecause the ALJ did not reject [the
treating physician’s] opinion due to gaps in the record, he was
not required to contact the physician for further information or
clarification”).
As set forth above, it is unclear whether Dr. Rubin’s
opinion is internally inconsistent and/or inconsistent with Dr.
Cohen’s treatment notes.

The Court finds that the ALJ had an

obligation to attempt to clarify any alleged inconsistency between
Dr. Rubin’s conclusion that Plaintiff could only sit for eighty
minutes in an eight-hour workday and never climb, stoop, balance,
crouch, or crawl and evidence in the record regarding Plaintiff’s
“overall improvement.”

(R. 17.)

Accordingly, remand is appropriate to enable the ALJ to
appropriately apply the treating physician rule and to fully
develop the record regarding Dr. Rubin’s opinion.
2.

Dr. Shtock

Plaintiff argues that to the extent Dr. Shtock’s opinion
is inconsistent with Dr. Rubin’s opinion, Dr. Shtock’s opinion
should be accorded “minimal weight” because it is impermissibly
vague, Dr. Shtcok has no reported board certifications and only
22

examined Plaintiff on one occasion.

(Pl.’s Br. at 19.)

The Court

will address each argument in turn.
The Second Circuit has held that a physician’s “use of
the terms ‘moderate’ and ‘mild,’ without additional information
does not permit the ALJ . . . to make the necessary inference that
[the

plaintiff]

can

perform

the

exertional

requirement

of

sedentary work.” Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000),
superseded by statute as recognized by Douglass v. Astrue, 496 F.
App’x 154 (2d Cir 2012).

However, courts have upheld an ALJ’s

accordance of significant weight to a consultative physician’s
finding that the plaintiff suffered from “moderate” limitations
where

the

physician’s

assessment

“directly

considered

a

plaintiff’s capacity to, for example, sit or stand for long
periods.”

Simmons v. Colvin, No. 15-CV-0377, 2016 WL 1255725, at

*14 (E.D.N.Y. Mar. 28, 2016) (collecting cases).

See, e.g., Lewis

v. Astrue, 548 F. App’x 675, 677 (2d Cir. 2013) (summary order)
(holding that the ALJ’s determination that the plaintiff could
undertake

“light

work”

was

supported

by

the

physician’s

“assessment of mild limitations for prolonged sitting, standing,
and walking . . . .”); Tankisi v. Comm’r. of Social Sec., 521 F.
App’x 29 (2d Cir. 2013) (summary order) (rejecting the plaintiff’s
argument

that

the

consultative

physician’s

opinion

that

his

condition was “mild to moderate” was “incomplete and vague” and
noting

that

this

opinion

contained
23

“additional

clarifying

information[,]” and was supported by other evidence).

Cf. Adesina

v. Astrue, No. 12-CV-3184, 2014 WL 5380938, at *7, 10 (E.D.N.Y.
Oct. 22, 2014) (holding that the ALJ erred in according significant
weight to the consultative physician’s opinion that the plaintiff
“was mildly limited in standing, walking, climbing, and bending
due to left knee pain”).

But see Brady v. Colvin, No. 14-CV-5773,

2016 WL 1448644, at *7-8 (E.D.N.Y. Apr. 12, 2016) (holding that
the

consultative

“moderate

physician’s

limitation

to

long

opinion
periods

that
of

he

plaintiff

sitting,

had

standing,

walking, and heavy lifting,” was vague and did not support the
residual functional capacity).
Here, Dr. Shtock described Plaintiff’s limitations as
“mild to moderate” or “moderate.”

(R. 269-70.)

However, Dr.

Shtock provided “additional clarifying information,” see Tankisi,
521 F. App’x at 29, by indicating that Plaintiff has mild to
moderate limitations standing or sitting for long periods, and
moderate limitations with heavy lifting, squatting, kneeling,
crouching, frequent stair climbing, walking long distances, and
frequent bending.

(R. 269.)

Accordingly, Dr. Shtock’s assessment

is not “so vague as to render it useless in evaluating whether
[Plaintiff] can perform sedentary work.”

Curry, 209 F.3d at 123.

The Court is also not persuaded by Plaintiff’s argument
that the ALJ erred in failing to consider Dr. Shtock’s alleged
lack of any reported board certifications.
24

(Pl.’s Br. at 19.)

Cf. Gonzalez v. Callahan, No. 94-CV-8747, 1997 WL 279870, at *3,
n.1 (S.D.N.Y. May 23, 1997) (noting that “other circuit courts
have found the lack of a board certification an unconvincing and
improper reason to deny credit to a doctor’s opinion”) (collecting
cases).

But see Cinnante v. Astrue, No. 09-CV-82328, 2010 WL

2976707, at *9 (S.D. Fla. Jun. 22, 2010), report and recommendation
adopted, 2010 WL 2976704 (S.D. Fla. Jul. 20, 2010) (holding that
the ALJ provided good reasons for discounting the consultative
examiner’s

opinion

and

noting

that

the

consultative

examiner

lacked “any particular expertise or board certification in the
area

of

practice

pertinent

to

Claimant’s

impairment(s)”)

(alteration in original).
However, the Second Circuit has “cautioned that ALJs
should not rely heavily on the findings of consultative physicians
after a single examination.”

Selian, 708 F.3d at 419.

Indeed,

regulations direct the ALJ to accord “limited weight” to the
opinion of a consulting physician and “[o]nly when the treating
physician’s

opinion

is

inconsistent

with

other

substantial

evidence in the record may a consultative physician’s report
constitute substantial evidence.”

Daniels v. Colvin, No. 14-CV-

2354, 2015 WL 1000112, at *16 (S.D.N.Y. Mar. 5, 2015) (citation
omitted).

Here, the ALJ summarized Dr. Shtock’s assessment and

concluded, without elaboration, that she “accord[s] the opinion of

25

Dr. Shtock great weight as it is consistent with the records of
the claimant’s neurosurgeon, Dr. Cohen.”

(R. 17.)

While Dr. Shtock appears to have reviewed x-ray results,
he only met with Plaintiff on one occasion and his report does not
indicate

that

he

reviewed

Plaintiff’s

medical

records.

See

Adesina, 2014 WL 5380938, at *10 (“[c]onsidering that Dr. Bellini
was only a consulting examiner who examined Plaintiff on one
occasion and who only conducted the most basic of clinical analysis
in evaluating Plaintiff, there was no basis to give Dr. Bellini’s
opinions significant weight”).

Cf. Tankisi, 521 F. App’x at 34

(affirming the ALJ’s decision to accord “great weight” to the
consulting physician’s opinion where, inter alia, he met with the
plaintiff twice, obtained a patient history, and conducted full
physical examinations).
Moreover,

Dr.

Shtock’s

consistent with Dr. Cohen’s notes.

opinion

is

not

necessarily

While Dr. Shtock assessed

Plaintiff as suffering from “moderate” or “mild to moderate”
limitations, as previously noted, Dr. Cohen’s treatment notes
speak to Plaintiff’s post-surgery improvement but also indicate
that Plaintiff continued to report pain, suffered from radiating
leg pain in his right leg when “sitting for any length of time,”
and scored fifty-one percent or severe on the Oswestry Disability
Index.

(R. 281, 283.)

Cf. Floyd, 2015 WL 2091871, at *8 (holding

that the ALJ failed to adequately address why he accorded the non26

treating physician’s opinion “significant weight” where the ALJ
incorrectly noted that the non-treating physician’s opinion was
consistent with the podiatrist’s opinion).

Accordingly, the Court

remands this matter for the ALJ to appropriately weigh the opinion
of Dr. Shtock.
B. Findings of the Medical Board
While another governmental agency’s decision that the
claimant is disabled is not binding on the Commissioner, such a
determination
considered.”

“is

entitled

to

some

weight

and

should

be

Lohnas v. Astrue, 510 F. App’x 13, 13 (2d Cir. 2013)

(internal quotation marks and citation omitted). See also Atwater,
512 F. App’x at 70 (noting that the Veteran’s Administration’s
determination

that

the

plaintiff

was

entitled

to

“individual

unemployability benefits” was not binding but “entitled to some
weight and should be considered”).

The Southern District has held

that the New York City police medical board’s approval of a
disability pension is “entitled to some weight” and the ALJ’s
failure to consider such determination constituted error.

Visser

v. Heckler, No. 83-CV-3479, 1986 WL 2205, at *5 (S.D.N.Y. Feb. 10,
1986).

But see Lohnas, 510 F. App’x at 13 (“[b]ecause the

Commissioner
determination

is
and

not

bound

because

by
the

another

agency’s

Commissioner’s

disability

decision

was

supported by substantial evidence, any alleged failure by the ALJ

27

to consider fully the disability determination by the Department
of Veteran’s Affairs does not affect our decision to affirm”).
The

Commissioner

concedes

that

the

ALJ

did

not

explicitly address the findings of the Medical Board, (Comm.’s Br.
at 6), but argues, in relevant part, that she was not required to
“‘state

on

the

record

every

reason

justifying

a

decision,’”

(Comm.’s Br. at 6 (quoting Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 448 (2d Cir. 2012)).

However, the ALJ’s decision fails

to even reference to the Medical Board’s decision and provides no
indication that the Medical Board’s decision was considered. While
the Medical Board’s decision is not binding, the Court finds that
the

ALJ

erred

by

determination.

failing

to

consider

the

Medical

Board’s

Accordingly, the Court remands this matter to

permit the ALJ to consider and place “some weight” on the Medical
Board’s decision.
C. RFC Assessment
Based

on

the

Court’s

determination

that

remand

is

required regarding the weight placed on the opinions of Dr. Rubin
and Dr. Shtock and to develop the record regarding Dr. Rubin’s
opinion, the Court need not address Plaintiff’s argument that the
ALJ’s RFC assessment is not supported by substantial evidence.
(Pl.’s Br. at 21-22.)

28

D. Credibility
Plaintiff alleges that the ALJ did not properly assess
Plaintiff’s

credibility

because

she

failed

to

address

how

Plaintiff’s testimony “had an impact on . . . her credibility
assessment.”

(Pl.’s Br. at 23.)

Particularly, Plaintiff alleges

that the ALJ failed to explicitly state that she relied upon
Plaintiff’s testimony in evaluating his credibility.
at 23.)

(Pl.’s Br.

However, because the treating physician’s opinion “is a

significant part of the evidence that is weighed in determining
credibility of a claimant under 20 C.F.R. § 404.1529,” whether the
ALJ properly assessed Plaintiff’s credibility “can only be properly
assessed after the correct application of the treating physician
rule.”

Garner v. Colvin, No. 13-CV-4358, 2014 WL 2936018, at *10

(S.D.N.Y.

June

27,

2014)

(remanding

to

the

Commissioner

and

directing that “the issue of credibility . . . be revisited on
remand, and evaluated in light of the proper application of the
treating

physician

credibility]”).

rule

and

[the

factors

for

evaluating

Accordingly, the ALJ should readdress the issue

of credibility on remand after properly applying the treating
physician rule.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion
(Docket Entry 11) is DENIED, Plaintiff’s motion (Docket Entry 14)
is GRANTED, and this action is REMANDED for further proceedings
29

consistent with this Memorandum and Order.

The Clerk of the Court

is directed to mark this matter CLOSED.
SO ORDERED

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: August
15 , 2016
Central Islip, New York

30