Gagovits v. Commissioner of Social Security

Filing 27

MEMORANDUM & ORDER denying 11 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings; For the foregoing reasons, the Commissioner's motion (Docket Entry 11) is DENIED, Plaintiff's motion (Docket Entry 16) 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 8/25/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JANOS O. GAGOVITS,
Plaintiff,

MEMORANDUM & ORDER
15-CV-3246(JS)

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

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Stephen M. Jackel, Esq.
Law Office of Stephen M. Jackel
277 Broadway, Suite 1010
New York, NY 10007
For Defendant:

Candace Scott Appleton, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201

SEYBERT, District Judge:
Plaintiff Janos Gagovits (“Plaintiff”) commenced this
action pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”), challenging the Commissioner of Social Security’s
(the “Commissioner”) denial of his application for disability
insurance benefits under Title II of the Act.

Presently before

the

judgment

Court

pleadings

are

the

(Docket

Commissioner’s
Entry

11)

and

motion

for

Plaintiff’s

judgment on the pleadings (Docket Entry 16).

on

the

cross-motion

for

For the following

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

BACKGROUND
I. Procedural Background
Plaintiff initially filed for Social Security disability
benefits on March 20, 2007, alleging a disability onset date of
March 31, 2006.
hearing

took

(R. 87.)

place

February 2, 2009.

Plaintiff’s claim was denied and a

before

(R. 87.)

an

administrative

law

judge

on

In a decision dated June 5, 2009, the

administrative law judge found that Plaintiff was not disabled.
(R. 87-92.)
Plaintiff

subsequently

filed

for

Social

Security

disability benefits in February 2011, alleging disability due to
a left knee injury.

(R. 93, 125.)

denied on June 14, 2011.

(R. 113.)

Plaintiff’s application was
On or about June 18, 2011,

Plaintiff requested a hearing before an administrative law judge.
(R. 125.)

The hearing took place on April 25, 2012, before

administrative law judge Andrew S. Weiss (the “ALJ”).
102.)

(R. 97.

At the hearing, Plaintiff amended his disability onset date

to June 5, 2009.

(R. 97.)

On May 3, 2012, the ALJ issued his

decision finding that Plaintiff is not disabled.

(R. 94-105.)

On July 3, 2012, Plaintiff requested review of the ALJ’s
decision by the Appeals Council.

(R. 184-85.)

On July 18, 2013,

the Appeals Council issued a decision remanding the case to the
ALJ.

(R. 107-09.)

development

and

The Appeals Council held that additional

consideration

of
2

the

opinions

of

treating

physicians

Dr.

Zvi

Herschman

warranted.

(R. 107.)

and

Dr.

Stephen

Kottmeier

was

Additionally, the Appeals Council held that

the record was not clear as to whether Plaintiff’s 2012 earnings
constituted substantial gainful activity.

(R. 107.)

Finally, the

Appeals Council held that the ALJ failed to evaluate all of
Plaintiff’s

physical

impairments--particularly,

his

kidney disorder, moderate hydronephrosis, and obesity.
08.)

congenital
(R. 107-

The Appeals Council directed the ALJ to “[o]btain updated

medical records, if available, from treating sources in order to
complete

the

regulatory

administrative

standards

record

regarding

in

accordance

consultative

with

the

examinations

and

existing medical evidence (20 CFR 404.1512-1513).”

(R. 108.)

The ALJ conducted a second hearing on November 19, 2013
(the “Second Hearing”).

(R. 14.)

Plaintiff was represented by

counsel and the ALJ heard testimony from Plaintiff, as well as
Osvaldo J. Fulco, an impartial medical expert, and Darren K.
Flomberg,

an

impartial

vocational

expert.

(R.

14.)

On

December 19, 2013, the ALJ issued a decision finding that Plaintiff
is not disabled.

(R. 14-23.)

On April 10, 2015, the Appeals

Council denied Plaintiff’s request for review.

(R. 1-4.)

Plaintiff then commenced this action on June 4, 2015.
(Docket Entry 1.)

The Commissioner and Plaintiff filed cross-

motions for judgment on the pleadings on December 16, 2015 and
February 1, 2016, respectively.

(Docket Entries 11, 16.)
3

II.

Evidence Presented to the ALJ
A.

Non-Medical Evidence
Plaintiff was forty-three years old at the time of the

Second Hearing.

(R. 48.)

and attended some college.

Plaintiff graduated from high school
(R. 32.)

He lives with his mother,

who performs most of the cooking and cleaning in the house.
49, 55.)

(R.

Plaintiff was a New York City police officer for thirteen

years until he suffered a ruptured patella tendon in his left knee.
(R. 32.)

He received service connected disability and has not

worked since 2006.

(R. 32-33, 49.)

Plaintiff had two surgeries on his left knee in December
2005 and November 2007.

(R. 34.)

Plaintiff suffers from swelling

and sharp pain if he stands or walks for twenty or thirty minutes
(R. 50.)

Sitting causes pain, swelling, and fatigue in his knee.

(R. 50-51, 55.)

Plaintiff must elevate his knee two times per day

for about an hour per day or periodically get up.
Plaintiff

takes

over

the

counter

medication

because

(R. 51.)
stronger

prescriptions make him “delusional and mess[ ] with [his] head.”
(R. 52.)

Plaintiff uses Voltaren gel on his knee on a daily basis

and has used a TENS unit two to three times per week for two years.
(R. 54.)

Plaintiff wears a brace with metal supports at all times.

(R. 55.)

His knee swells daily and the swelling is exacerbated by

activity.

(R. 55.)

Plaintiff sits in an elevated recliner.

56.)
4

(R.

Plaintiff is able to sit at the computer for twenty
minutes.

(R. 56.)

Plaintiff occasionally watches television but

cannot not sit and watch an entire football game due to fatigue in
his knee. (R. 57.) He can lift up to ten pounds but any additional
weight “would cause massive fatigue.”

(R. 51.)

Plaintiff drives

to the store or to a doctor’s office about five miles away.

(R.

58.)
Plaintiff testified that he earned over $12,000 in 2012
from racing greyhounds.

(R. 49.)

Plaintiff buys the greyhounds

and has trainers who race them and care for them.

(R. 49-50.)

Plaintiff testified that he is not alleging any mental
impairment. (R. 52.) Plaintiff’s counsel indicated that Plaintiff
is not alleging that his kidney issues render him disabled but
“one of the other reasons why he can’t take certain medications,
pain medications, [is] because of his kidney function.”

(R. 53.)

Plaintiff also testified that his doctors advised that certain
medications may be bad for his kidneys.

(R. 54.)

Dr. Oslago Fulco,1 a board certified internist, testified
at the Second Hearing. (R. 58.) Dr. Fulco testified that Plaintiff
had limitations from 2009 to 2012.

(R. 62.)

However, Dr. Fulco

asserted that after August 1, 2012, Plaintiff could stand and walk
for two hours and sit for six hours as long as he had interruptions

The transcript of the Second Hearing erroneously refers to Dr.
Fulco as “Dr. Fuoco.” (See, e.g., R. 58.)
1

5

to

relieve

discomfort,

and

Plaintiff

“would

be

limited

squatting, crouching and crawling all day occasionally.”

to

(R. 62.)

Dr. Fulco indicated that “more weight” should be accorded to
Plaintiff’s treating physician’s assessment that Plaintiff was
“significantly limited” from 2011-2012.

(R. 64-65.)

Dr. Fulco

did not feel that Plaintiff needed to elevate his leg but conceded
that it would be “beneficial.” (R. 74-75.) Dr. Fulco also conceded
that medical records from 2013 indicated positive for joint pain
and stiffness or swelling.

(R. 75.)

Keith Thornburg (“Thornburg”), a vocational expert, also
testified at the hearing.
with

a

hypothetical

(R. 66.)

individual

who

The ALJ presented Thornburg
could

lift

twenty

pounds

occasionally and ten pounds frequently; stand and walk for two
hours and sit for six hours in an eight-hour day; had unlimited
abilities to push and pull; and could occasionally climb, balance,
stoop, kneel, crouch, and pull.

(R. 76.)

Thornburg testified

that such an individual could not perform Plaintiff’s prior work,
but could work as a check cashier, telemarketer, or telephone
operator.

(R. 77.)

Additionally, it would not create an issue if

that individual needed to keep his leg elevated for fifty percent
of the day.

(R. 78-79.)

However, Thornburg asserted that it would

be problematic if that individual had to stand up and move around
every half hour and was “off task.”

(R. 79.)

Next, the ALJ

inquired about an individual who could sit for only twenty minutes
6

and stand for only fifteen minutes per day. (R. 78.) Mr. Thornburg
testified that such an individual could not perform any jobs in
the national economy.

(R. 78.)

B. Medical Evidence
1. Evidence Prior to Disability Onset Date
On December 20, 2005, Dr. John Mani performed surgery to
repair Plaintiff’s left patellar tendon (R. 317.)

On July 26,

2006, an MRI revealed that the patellar tendon was thickened and
intact

with

a

probable

postoperative

change

in

the

distal

quadriceps tendon; there was an abnormal signal in the anterior
horn of the lateral meniscus; and there was an eight-millimeter
cystic structure adjacent to the anterior horn of the lateral
meniscus that was likely a parameniscal cyst.

(R. 323-24.)

On November 6, 2007, Plaintiff saw Dr. Stephen Kottmeier
for an assessment of his left knee.

(R. 333.)

Dr. Kottmeier

opined that Plaintiff’s history and physical examination suggested
position-related pain laterally to the left knee that was likely
a left knee lateral meniscal tear.

(R. 334.)

That same day,

imaging showed mild degenerative changes in the left knee and no
evidence of fracture or dislocation.
On

November

30,

2007,

(R. 325.)
Dr.

Kottmeier

performed

an

arthroscopic left knee partial lateral menisectony. (R. 327.) Dr.
Kottmeier’s

post-operative

meniscus tear.

(R. 327.)

diagnosis

was

left

knee

lateral

On December 11, 2007, Plaintiff saw
7

Dr. Kottmeier for a follow-up visit.
revealed

postsurgical

Dr. Kottmeier’s examination

hemarthrosis,

and

he

performed

arthrocentisis and administered a Lidocaine injection.

an

(R. 335.)

On December 18, 2007, Dr. Kottmeier noted that Plaintiff had a
persistent but diminished effusion in the left knee.

(R. 336.)

Dr. Kottmeier also noted that Plaintiff would begin physical
therapy

the

cryotherapy.

following

week

and

was

pursuing

NSAIDs

with

(R. 336.)

On January 15, 2008, Plaintiff saw Dr. Kottmeier and an
examination revealed persistent effusion. (R. 337.) Dr. Kottemeir
recommended cautious use of NSAIDs and additional testing.
337.)

On February 26, 2008, Plaintiff saw Dr. Kottmeier and

complained of continued swelling and pain in his left knee.
338.)

(R.

(R.

Dr. Kottmeier noted persistent effusion and indicated that

Plaintiff would continue with physical therapy.

(R. 338.)

On

January 6, 2009, Plaintiff saw Dr. Kottmeier and reported left
knee swelling and discomfort.

(R. 339.)

Dr. Kottmeier noted that

radiographs suggested limited retropatellar degenerative changes.
(R. 339.)

Plaintiff reported being “content” with respect to the

resolution of his medial meniscal symptoms, but Dr. Kottmeier
opined that there were likely features of quadriceps weakness and
impaired extensor mechanism function.

8

(R. 339.)

2.

Evidence After Disability Onset Date
a.

Dr. Zvi Herschman

On February 17, 2011, Plaintiff began seeing Dr. Zvi
Herschman.

(R. 367.)

Plaintiff complained of pain in his left

knee that is worsened by using the stairs.

(R. 367.)

was taking Pennsaid, Tylenol, and Azor.

(R. 367.)

noted

active--just

that

activities.”

Plaintiff

was

(R. 367.)

“not

very

Plaintiff

Dr. Herschman
some

home

Dr. Herschman assessed Plaintiff as

suffering from left knee derangement with residual ligamentous
pain.

(R. 368.)
Plaintiff saw Dr. Herschman on five occasions during

2011 and reported feeling less knee pain with the brace, Flector
and

TENS

unit.

(R.

370-74.)

Dr.

Herschman

characterized

Plaintiff’s injury as “bothersome, but controllable as long as not
stressed too much” with Plaintiff responding well to treatment
notwithstanding some painful days.

(R. 370-72.)

Dr. Herschman

noted that Plaintiff’s range of motion was good with the brace but
he had some peri-articular tenderness and swelling.

(R. 370-74.)

On July 14, 2011, Dr. Herschman noted that when Plaintiff stood
for too long he felt pain during the next couple of days; however,
Plaintiff responded to Flector and the TENS unit.

(R. 372.)

On February 23, 2012, Plaintiff saw Dr. Herschman and
reported feeling less pain in his knee with the brace, Flector,
and TENS unit; however Dr. Herschman noted “temperature changes
9

are a problem for the pain threshold.”

(R. 375.)

Dr. Herschman

also noted that Plaintiff had good range of motion with the brace
notwithstanding peri-articular tenderness and swelling, and he was
responding well to treatment despite some painful days.
Dr.

Herschman

refilled

Plaintiff’s

Flector

prescriptions and prescribed Voltaren gel.

and

(R. 375.)
Pennsaid

(R. 375.)

On February 27, 2012, Dr. Herschman completed a Physical
Residual Functional Capacity Questionnaire.

(R. 362-66.)

Dr.

Herschman diagnosed Plaintiff with internal knee derangements and
ligamentous pain and noted that he was “[n]ot likely to return to
normal function.”

(R. 362.)

Dr. Herschman listed Plaintiff’s

symptoms as “pain, difficulty standing, walking, [and] squatting.”
(R. 362.)

Plaintiff’s treatment included topical medication, TENS

unit, and an artificial knee brace.

(R. 362.)

Dr. Herschman

opined that Plaintiff is capable of low stress jobs.

(R. 363.)

Dr. Herschman further concluded that Plaintiff could sit
for twenty minutes and stand for fifteen minutes before needing to
get up or sit down, and could stand for less than two hours and
sit for about two hours in an eight-hour workday.

(R. 363-64.)

Plaintiff would also need to walk five times during an eight-hour
workday.

(R. 364.)

Dr. Herschman opined that Plaintiff requires

a job where he could shift positions at will, take unscheduled
breaks for fifteen to thirty minutes, and elevate his leg off the
floor for fifty percent of the day.
10

(R. 364.)

Plaintiff requires

an assistive device when standing or walking.

(R. 364.)

Dr.

Herschman concluded that Plaintiff could frequently lift less than
ten pounds, occasionally lift ten pounds, rarely lift twenty
pounds, and never lift fifty pounds.

(R. 364.)

Plaintiff could

frequently twist, rarely stoop, occasionally climb stairs, and
never crouch or climb ladders. (R. 365.) Plaintiff was prescribed
Lidoderm and Flector.
b.
On

(R. 366.)

Dr. Skeene

June

1,

2011,

Dr.

Linell

Skeene

conducted

an

orthopedic examination pursuant to a referral from the Division of
Disability.

(R. 343.)

Plaintiff complained of continued left

knee pain that he described as sharp, constant, and non-radiating,
with 7/10 intensity.

(R. 343.)

Plaintiff was taking Azor and

Zolpidem, and using a Flector patch. (R. 343.) Dr. Skeene observed
that Plaintiff did not appear to be in acute distress and did not
use an assistive device.

(R. 344.)

Dr. Skeene noted a limited

range of motion in the left knee with 3/5 strength in the left
lower extremity.
ray.

(R. 345.)

(R. 345.)

Dr. Skeene reviewed a left-knee x-

Dr. Skeene concluded that Plaintiff had moderate

limitations for prolonged standing and walking due to the limited
range of motion of his lumbar spine.

(R. 345.)

On June 7, 2011, an x-ray of Plaintiff’s left knee
revealed

no

destructive

evidence
bony

of

lesion;

an

acute

fracture,

well-maintained
11

dislocation,

joint

spaces;

or

tiny

inferior patellar osteophyte; and small patellar spurs.

(R. 347.)

The radiologist’s impression was tiny patellar osteophyte.

(R.

347.)
c.
On

S. Collier

June

14,

2011,

S.

Functional Capacity Assessment.

Collier2

prepared

(R. 349-54.)

diagnosis was patellar osteophyte.

(R. 349.)

a

Residual

Collier’s primary
Collier found that

Plaintiff could occasionally lift twenty pounds; frequently lift
up to ten pounds; sit for about six hours and stand for about four
hours in an eight-hour workday; and was limited in his lower
extremities

with

respect

to

pushing

and

pulling.

(R.

350.)

Additionally, Plaintiff could occasionally climb, balance, stoop,
kneel, crouch, and crawl.

(R. 351.)

Collier concluded that

Plaintiff had the capacity to perform “less than a full range of
light exertion.”

(R. 350.)

Collier also noted that Plaintiff’s

statements regarding sharp and piercing knee pain that occurs from
walking, sitting, and standing were credible.
d.

(R. 352-53.)

Dr. Greenberg

On March 24, 2012, Dr. Gerald Greenberg completed a
Medical Interrogatory Physical Impairments as an impartial medical
expert.
Plaintiff.

(R. 377.)
(R. 377.)

Dr. Greenberg did not personally examine
Dr. Greenberg concluded that Plaintiff’s

It is unclear from the record whether “S. Collier” is a
physician.
2

12

impairments during the relevant time period do not meet or equal
any impairment referenced in the Listing of Impairments. (R. 378.)
Dr. Greenberg noted that Plaintiff “has pain and limitations of
prolonged

walking,

climbing,

etc.

on

[s]hould not preclude sedentary work.”
e.

a

regular

basis

[that]

(R. 379.)

Dr. Aviva Herschman

On March 8, 2013, Plaintiff saw Dr. Aviva Herschman for
a follow-up regarding pain in his left knee.

(R. 380.)

Dr.

Herschman noted that Plaintiff suffered from occasional swelling
in his left knee but used the TENS unit with “immediate relief of
pain.”
smooth.

(R. 381.)

Plaintiff’s gait was stable, coordinated, and

(R. 381.)

Dr. Herschman recommended that Plaintiff

continue with the TENS unit and prescribed, Voltaren, Flector
patches, and Azor.

(R. 382.)

Plaintiff saw Dr. Herschman six times between April 5,
2013 and August 23, 2013.

(R. 383-400.)

On April 26, 2013,

Plaintiff reported difficulty walking on the treadmill but some
relief with Voltaren gel; his gait was stable, coordinated, and
smooth,

but

Dr.

Herschman

occasional tingling.

noted

pain

(R. 386-87.)

in

his

left

leg

with

On May 24, 2013, Plaintiff

reported joint pain, muscle cramps, and muscle cramps and muscle
aches but no stiffness or swelling.

(R. 390.)

On June 28, 2013,

Plaintiff reported joint pain, joint stiffness or swelling, and
muscle

aches.

(R.

392-93.)

Dr.
13

Herschman

noted

that

they

discussed using a recumbent bicycle.

(R. 393.)

On July 26, 2013,

Plaintiff reported joint pain and back or neck pain.

(R. 395.)

On August 23, 2013, Plaintiff reported muscle aches but no joint
pain, stiffness, or swelling.

(R. 399.)

On two occasions, Dr.

Herschman noted that Plaintiff had improved weight loss with
increased exercise.

(R. 396, 400.)
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

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
14

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.”

See 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.
§ 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.
15

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. § 404.1509.3

Third, if the impairment is

“severe,” the Commissioner must consider whether the impairment
meets or equals any of the impairments listed in Appendix 1 of the
Social

Security

regulations

§ 404.1520(a)(4)(iii).
Secretary

to

be

of

(the

“Listings”).

20

C.F.R.

“These are impairments acknowledged by the
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.”

Dixon v. Shalala, 54 F.3d 1019, 1022 (2d

Cir. 1995) (citation omitted).

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”) to
perform tasks required in his previous employment.
§ 404.1520(a) (4)(iv).

20 C.F.R.

Fifth, 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

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.”
3

16

national economy that the claimant is able to perform.
§ 404.1520(a)

(4)(v).

If

not,

the

claimant

is

20 C.F.R.

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.

See Shaw, 221 F.3d at 132.

“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 educational background, age, and
work experience.”

Boryk ex rel. Boryk v. Barnhart, No. 02–CV–

2465, 2003 WL 22170596, at *8 (E.D.N.Y. Sept. 17, 2003).
III. The ALJ’s Decision
The ALJ applied the five-step analysis described above
and determined that Plaintiff is not disabled.
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since June 6, 2009.

(R. 16.)

At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: (1) internal derangement of the
left knee, and (2) obesity.

(R. 17.)

Plaintiff’s

mild

hypertension,

The ALJ also concluded that

anxiety,

and

hydronephrosis

associated with the absence of his left kidney did not constitute
severe impairments.

(R. 17.)
17

At

step

three,

the

ALJ

concluded

that

Plaintiff’s

impairments, either singularly or in combination, did not meet or
equal the severity of one of the impairments listed in Appendix 1
of the Social Security regulations.

(R. 18.)

At step four, the ALJ concluded 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).
Herschman’s
controlling”

opinion
based

was
on

“not
its

given
lack

great

of

(R. 18.)

weight

evidentiary

and

Dr. Z.
was

not

support

and

inconsistency with Plaintiff’s daily activities, as well as records
indicating that Plaintiff’s left knee impairment improved with
treatment.

(R. 21.)

Dr. Greenberg’s opinion was given “some

weight” based on its consistency with the record.
Fulco’s

opinion

was

given

“little

weight”

(R. 21.)

because

contradictory and “not fully supported by the record.”

it

Dr.
was

(R. 21.)

Dr. Skeene’s opinion was given “substantial weight” based on its
consistency with the medical evidence. (R. 21.) The ALJ concluded
that Plaintiff could not perform his past relevant work.

(R. 21.)

Finally, at step five, the ALJ concluded that Plaintiff
could perform other work existing in the national economy based on
his age, education, work experience, residual functional capacity,
and Mr. Flomberg’s testimony.

(R. 22.)

18

IV.

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

each step of the ALJ’s decision is supported by substantial
evidence.

(See generally Comm’r Br., Docket Entry 12.)

Plaintiff

counters that the ALJ’s decision should be reversed and remanded
on the following grounds: (1) the ALJ erred in determining that
Plaintiff’s sleep apnea, hypertension, and absence of his left
kidney did not constitute severe impairments4 (Pl.’s Br., Docket
Entry 17, at 27); (2) the ALJ failed to properly apply the treating
physician rule (Pl.’s Br. at 19-25); (3) the ALJ failed to develop
the record (Pl.’s Br. at 12-15); (4) the ALJ did not properly
evaluate Plaintiff’s credibility (Pl.’s Br. at 15-19); and (5) the
ALJ erred in finding that Plaintiff’s impairments do not meet or
equal the severity of one of the impairments in the Listings
(Pl.’s Br. at 25-27).

The Court will address each of Plaintiff’s

arguments in turn.
A.

Plaintiff’s Severe Impairments
“Where an ALJ excludes certain impairments from the list

of severe impairments at the second step, any such error is
harmless where the ALJ identifies other severe impairments such
that the analysis proceeds and the ALJ considers the effects of

Plaintiff does not argue that the ALJ erred in failing to
determine that his anxiety constituted a severe impairment.
(R. 52-53.)
4

19

the omitted impairments during subsequent steps.”

Calixte v.

Colvin, No. 14-CV-5654, 2016 WL 1306533, at *23 (E.D.N.Y. Mar. 31,
2016) (collecting cases).

The Court finds that any error by the

ALJ in declining to find Plaintiff’s hypertension and absence of
one

kidney

to

be

severe

impairments

was

harmless.

The

ALJ

identified Plaintiff’s internal derangement of the left knee and
obesity as severe impairments, engaged in the remainder of the
five-step analysis, and addressed Plaintiff’s hypertension and
absence of one kidney at step four.5

(See R. 17-20.)

The Court acknowledges that the ALJ’s decision fails to
reference sleep apnea.

However, “[t]he mere presence of a disease

or impairment, or establishing that a person has been diagnosed or
treated for a disease or impairment is not, itself, sufficient to
deem a condition severe.”

Ives v. Colvin, No. 12-CV-0471, 2013 WL

2120273, at *2 (N.D.N.Y. May 15, 2013) (internal quotation marks
and citation omitted).

Moreover, a finding of “not severe” is

appropriate

evidence

where

the

establishes

“only

a

slight

abnormality [ ] would have no more than a minimal effect on an
individual’s ability to work.”

Clark v. Colvin, No. 12-CV-1507,

Parenthetically, the Court notes that when the ALJ asked
Plaintiff’s counsel whether Plaintiff’s absence of one kidney
was a reason for his disability, counsel replied: “No. We’re
not alleging that . . . but that’s one of the other reasons why
[Plaintiff] can’t take certain medications, pain medications,
because of his kidney function.” (R. 53.)
5

20

2013 WL 6795627, at *5 (N.D.N.Y. Dec. 18, 2013) (internal quotation
marks and citation omitted).
The medical evidence with respect to Plaintiff’s sleep
apnea is scant, to say the least.

On three occasions, Dr. Z.

Herschman referenced a sleep study and noted that “sleep [is] a
major issue” for Plaintiff.

(R. 370-72.)

On February 23, 2012,

Dr. Z. Herschman discussed the results of a sleep study with
Plaintiff, and noted that Plaintiff was using a nasal CPAP mask
and “[s]leep apnea [was] being addressed.”

(R. 375.)

finds

sleep

that

the

handful

of

references

to

The Court

apnea

in

Dr.

Herschman’s treatment notes does not establish that Plaintiff’s
sleep apnea had more than a minimal effect on his ability to work.
Accordingly, the ALJ’s determination that Plaintiff’s sleep apnea
does not constitute a severe impairment is supported by substantial
evidence. See Clark, 2013 WL 6795627, at *6-7 (affirming the ALJ’s
determination that the plaintiff’s sleep apnea was not a severe
impairment where “[t]here are no medical reports that do more than
mention the fact that plaintiff was diagnosed with sleep apnea,
and nowhere is there a medical record that imposes any limitations
based upon this impairment”) (emphasis in original).
B.

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

opinions and reports of a claimant’s treating physicians are to be

21

given “special evidentiary weight.”6
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).
When an ALJ does not accord controlling weight to the
opinion of a treating physician, he 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

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.
6

22

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)).

As previously noted, the ALJ did not accord controlling
weight to the opinion of Dr. Z. Herschman; accorded “some weight”
to the opinion of Dr. Greenberg; accorded “little weight” to the
opinion of Dr. Fulco; and accorded “substantial weight” to the
opinion of Dr. Skeene.

(R. 21.)

The Court will address the weight

accorded to each physician’s opinion in turn.
1. Dr. Z. Herschman
As set forth above, the ALJ held that Dr. Z. Herschman’s
opinion “was not given great weight and was not controlling.”
21.)

(R.

In declining to accord Dr. Herschman’s opinion controlling

or great weight, the ALJ found that:
[A]lthough Dr. Z Herschman personally examined
the claimant on many occasions, his opinion
was not supported by the medical evidence
including
his
own
findings,
and
was
inconsistent with the claimant’s activities of
daily living.
Dr. Herschman’s records show
that the claimant’s left knee impairment
rapidly improved with treatment. In addition,
while Dr. Herschman’s examination findings
support the conclusion that the claimant’s
ability to stand and walk is somewhat limited,
there are no findings to support significant
limitation of the claimant’s ability to sit.
(R. 21.)

23

First, the Court finds that the ALJ’s failure to identify
the weight given to Dr. Z. Herschman’s opinion constitutes legal
error requiring remand.

The treating physician rule requires that

the ALJ’s decision “must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the
treating source's medical opinion and the reasons for that weight.”
Social Security Ruling 96–2p, 1996 WL 374188, at *5 (July 2, 1996).
While the ALJ held that Dr. Herschman’s opinion was not controlling
or

given

great

weight,

it

is

impossible

for

the

Court

to

definitively say whether this opinion was given some weight, little
weight, or no weight. Indeed, the Court could reasonably interpret
the ALJ’s decision as according no weight to Dr. Herschman’s
opinion regarding Plaintiff’s sitting limitations based on the
ALJ’s conclusion that “there are no findings to support significant
limitation of the claimant’s ability to sit.”
Accordingly,

on

remand

the

ALJ

(R. 21.)

should

identify

the

degree of weight given to Dr. Z. Herschman’s opinion and explain
why Dr. Herschman’s opinion deserves such weight.

See, e.g.,

Miller v. Comm’r of Social Sec., No. 13-CV-6233, 2015 WL 337488,
at *23 (S.D.N.Y. Jan. 26, 2015) (holding that the ALJ erred by
failing to specify the amount of weight accorded to the opinions
of the plaintiff’s treating physicians); Norman v. Astrue, 912 F.
Supp. 2d 33, 84 (S.D.N.Y. 2012) (remanding to the Commissioner

24

where the ALJ’s decision was, inter alia, unclear as to the amount
of weight given to the treating physician’s opinion).
Second, the Court finds that the ALJ failed to develop
the record regarding Dr. Z. Herschman’s opinion.
at 21-22.)

(See Pl.’s Br.

“[T]he 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) recontacting

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

§ 404.1520b(c).7

for
The

additional
Second

information.

Circuit

has

20

directed

C.F.R.
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.”

Khan, 2015 WL 5774828, at *14.

In applying 20

C.F.R. § 404.1520b, courts in this Circuit have held that where
additional

information

is

needed

regarding

the

opinion

of

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 the necessary
evidence.” 20 C.F.R. § 416.920b(c)(1).
7

25

a

treating physician, the ALJ should 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 previously noted, the ALJ declined to accord Dr. Z.
Herschman’s opinion controlling weight based on, inter alia, the
absence of any “findings to support significant limitation of the
claimant’s ability to sit.”

(R. 21.)

However, Dr. Herschman’s

treatment notes are silent with respect to Plaintiff’s ability to
sit; they do not contain findings contrary to his assessment.

It

appears that the ALJ inferred that this silence in Dr. Herschman’s
treatment

records

indicates

that

Plaintiff

never

reported

difficulty sitting and/or that Dr. Herschman implicitly concluded
that Plaintiff had no sitting limitations.

The Court finds that

the ALJ should have re-contacted Dr. Herschman for clarification
on this issue rather than making such an inference.
Additionally, as addressed more fully infra, the Appeals
Council’s decision directed the ALJ to obtain updated records from
treating sources if available.

(R. 108.)

However, the record

does not indicate that the ALJ attempted to obtain records from
26

Plaintiff’s treating sources after the Appeals Council rendered
its decision in 2013.

(R. 355-358.)

The Court finds that the ALJ

erred in failing to obtain updated treatment records from Dr.
Herschman.

On remand, the ALJ should attempt to obtain Dr.

Herschman’s treatment records for the remainder of 2012 and 2013,
if available.
The Court makes no determination as to the appropriate
amount of weight to be accorded to Dr. Z. Herschman’s opinion and
acknowledges, as noted by the ALJ, that Dr. Herschman’s treatment
records also speak to Plaintiff’s improvement.

(See R. 370-75.)

However, the Court finds that the ALJ erred by failing to specify
the amount of weight accorded to Dr. Herschman’s opinion and by
failing to fully develop the record.8
The Commissioner alleges that Dr. Z. Herschman’s license
to practice medicine was revoked in 2013 following his conviction
for grand larceny in connection with Medicare fraud.

(Comm’r Br.

at 7 n.5.) Plaintiff does not dispute that Dr. Herschman’s license
was suspended but argues that the status of Dr. Herschman’s license
is irrelevant because it was not considered by the ALJ.
Br. at 19 n.4.)

(Pl.’s

However, Plaintiff concedes that the status of

8

The Court need not address Plaintiff’s remaining arguments
regarding the ALJ’s failure to accord controlling weight to Dr.
Herschman’s opinion in light of its determination that further
development of the record is warranted. (See generally Pl.’s
Br. at 19-22.)
27

Dr. Herschman’s license “may be relevant to the weight attributed
to his opinion in any future agency proceedings on Plaintiff’s
February 2011 application for benefits.”

(Pl.’s Br. at 19 n.4.)

The Court acknowledges that Dr. Herschman’s alleged loss of his
license and/or conviction may render it difficult or impossible
for the ALJ to further develop the record.

On remand, the Court

directs the ALJ to use his best efforts to re-contact Dr. Herschman
or otherwise develop the record in a manner consistent with this
Memorandum and Order.

The Court makes no determination as to

whether Dr. Herschman’s license revocation and/or conviction is
relevant to the ALJ’s reevaluation of Dr. Herschman’s opinion on
remand.
2. Dr. Greenberg
Plaintiff argues that the ALJ erred in according “some
weight” to Dr. Greenberg’s opinion because he did not personally
examine Plaintiff; he is a pulmonologist, not a musculoskeletal
specialist; and his opinion was vague.

(Pl.’s Br. at 22-23.)

The

Court agrees.
Generally, “‘the written reports of medical advisors who
have not personally examined a claimant . . . deserve little weight
in the overall evaluation of disability.’”

Simmons v. Colvin, No.

15-CV-0377, 2016 WL 1255725, at *15 (E.D.N.Y. Mar. 28, 2016)
(quoting Cabibi v. Colvin, 50 F. Supp. 3d 213, 235 (E.D.N.Y. 2014)
(noting

that

reports

by

non-examining
28

medical

advis[o]rs

are

generally accorded little weight “because the advisors’ assessment
of

what

other

doctors

find

is

hardly

a

basis

for

competent

evaluation without a personal examination of the claimant”)).
However, a non-examining consultative physician’s opinion may
constitute substantial evidence where it is supported by other
evidence

in

the

record.

Simmons,

2016

WL

1255725,

at

*15

(collecting cases).
The record indicates that Dr. Greenberg, a Diplomate of
the American Board of Internal Medicine who is certified by the
Subspecialty Board in Pulmonary Disease,9 (R. 175), did not examine
Plaintiff,

(R.

377).

Dr.

Greenberg

asserted

that

Plaintiff

“continues to have pain off and on with range of motion decrease
but only moderate decrease in ability to stand and walk[,]” and
concluded that Plaintiff “has pain and limitations of prolonged
walking, climbing, etc. on a regular basis.
sedentary work.”
that

Plaintiff

(R. 377, 379.)
is

capable

of

Should not preclude

In support of his determination
performing

sedentary

Greenberg cited to Dr. Z. Herschman’s records.

work,

Dr.

(R. 378.)10

9

While the Commissioner asserts that as an internist, Dr.
Greenberg “was trained in the diagnosis and treatment of, among
other things, diseases affecting the joints,” (Comm’r Reply Br.,
Docket Entry 20, at 7), it is undisputed that Dr. Greenberg is
not a musculoskeletal specialist.
The Court assumes that Dr. Greenberg is referring to Dr. Z.
Herschman as Dr. Greenberg’s opinion predates Dr. A. Herschman’s
treatment notes.
10

29

In according Dr. Greenberg’s opinion “some weight,” the
ALJ acknowledged that this non-examining opinion was vague but
held that it was consistent with the record.

(R. 21.)

However,

the Court finds that Dr. Greenberg’s opinion--which uses the term
“moderate” without additional information or development--is “so
vague as to render [it] useless in evaluating the claimant’s
[residual functional capacity].”

Adesina v. Astrue, No. 12-CV-

3184, 2014 WL 5380938, at *9 (E.D.N.Y. Oct. 22, 2014) (internal
quotation marks and citation omitted).

Indeed, the vagueness of

this opinion is highlighted by Dr. Greenberg’s use of the term
“etcetera.”
Herschman’s
sedentary

Moreover, while Dr. Greenberg opines that Dr. Z.
records
work,

support

(R.

377-78),

Plaintiff’s
as

ability

previously

to

noted,

perform
Dr.

Z.

Herschman’s treatment notes are silent as to Plaintiff’s ability
to sit and his assessment expressly states that Plaintiff can only
sit for twenty minutes.

(R. 363.)

Accordingly, the Court finds

that the ALJ erred in according Dr. Greenberg’s opinion “some
weight.”
3. Dr. Fulco
The Court finds that the ALJ’s accordance of “little
weight”

to

evidence.

Dr.

Fulco’s

(R. 21.)

opinion

is

supported

by

substantial

Dr. Fulco is a board certified internist who

did not examine Plaintiff.

(R. 58-59, 74.)

As noted by the ALJ,

Dr. Fulco’s opinion that Plaintiff had limitations from 2009 to
30

2012 but was able to stand and walk for two hours and sit for six
hours as of August 1, 2012, was vague, to say the least.
62-63.)

(R. 21,

Dr. Fulco testified that he agreed with Dr. Skeene and

Dr. Z. Herschman, but that Dr. Herschman’s opinion “override[d]”
Dr.

Skeene’s

opinion

treating physician.

because

(R. 65.)

Dr.

Herschman

was

Plaintiff’s

However, when asked whether it was

fair to say that Plaintiff had severe knee pain from 2009 to 2011,
Dr. Fulco responded “I really cannot answer that without medical
evidence.”

(R. 68.)

Similarly, Dr. Fulco equivocally opined that

“[i]t’s possible” that Plaintiff’s knee pain improved and then got
worse.

(R. 68.)

The Court finds that the fact that Dr. Fulco is

not a specialist, did not examine Plaintiff, and posited a vague
opinion supports the ALJ’s determination.
Parenthetically, Plaintiff argues that the ALJ erred in
finding that Dr. Fulco’s testimony that he agreed with the opinions
of both Dr. Skeene and Dr. Z. Herschman was contradictory and
unsupported by the record.

(R. 21; Pl.’s Br. at 23-24.)

The Court

concurs that the opinions of Drs. Skeene and Z. Herschman are not
necessarily contradictory and, as noted, Dr. Fulco ultimately
concluded

that

Dr.

Z.

Herschman’s

opinion

“override[d]”

Dr. Skeene’s opinion. (R. 65.) Nevertheless, the previously noted
deficiencies in Dr. Fulco’s opinion support the accordance of
“little weight.”

31

4. Dr. Skeene
Finally,

Plaintiff

argues

that

the

ALJ

erred

according “substantial weight” to Dr. Skeene’s opinion.
Pl.’s Br. at 24.)

in

(R. 21;

The ALJ held that while Dr. Skeene only examined

Plaintiff once and posited a vague opinion, his opinion “was
consistent

with

the

objective

medical

entitled to “substantial weight.”

evidence,”

(R. 21.)

and,

thus,

However, as noted by

Plaintiff, Dr. Skeene’s opinion is inconsistent.

(See Pl.’s Br.

at

“has

24.)

Dr.

Skeene

concluded

that

Plaintiff

moderate

limitations for prolonged standing and walking due to limited
[range

of

motion]

supplied).)

of

the

lumbar

spine.”

(R.

345

(emphasis

However, Dr. Skeene noted that Plaintiff suffers from

left knee pain and had no range of motion limitations with respect
to his lumbar spine.

(R. 344-45.)

While Dr. Skeene’s reference

to the lumbar spine is likely a typographical error based on his
finding that Plaintiff had limited range of motion in his left
knee, (R. 345), the ALJ should have sought clarification on this
issue from Dr. Skeene.

On remand, the ALJ should develop the

record regarding Dr. Skeene’s inconsistent findings and reevaluate
the weight placed on Dr. Skeene’s opinion.
C.

Development of the Record
Plaintiff argues that the ALJ also did not fully develop

the record by failing to obtain treatment notes from his internist,

32

Dr. Geffken, and failing to request a medical source statement
from Dr. A. Herschman.

(Pl.’s Br. at 12-14.)

The Court agrees.

The Appeals Council’s decision remanding this matter
directs the ALJ to “[o]btain updated medical records, if available,
from treating sources[.]” (R. 108.) Plaintiff’s Disability Report
form indicates that Dr. Geffken of Bethpage Primary Medical Care
treated him for “[g]eneral care, hypertension, [and] left knee
pain,” between 2000 and 2011.

(R. 259.)

A disability worksheet

states that the Agency contacted Dr. Geffken’s practice on two
occasions in 2011, but apparently received no response.

(R. 355.)

However, the record does not indicate that the ALJ attempted to
obtain medical records from Dr. Geffken subsequent to the Appeals
Council’s 2013 decision.

The Commissioner’s argument that updated

records from Dr. Geffken were not available, (Comm’r Reply Br.,
at 2), is unpersuasive in light of the ALJ’s failure to make any
attempt

to

obtain

such

records.

Additionally,

while

the

Commissioner notes Plaintiff’s counsel’s failure to object to the
absence of these records at the hearing and/or request the issuance
of a subpoena, (Comm’r Br. at 2), the ALJ has a duty to develop
the record even when the plaintiff is represented by an attorney.
See Khan, 2015 WL 5774828, at *13.
contact

Dr.

Geffken

to

obtain

On remand, the ALJ should
his

treatment

notes.

Parenthetically, to the extent that Dr. Geffken’s records are
available, they will resolve the gap in the record regarding
33

Plaintiff’s alleged consistent treatment with Dr. Geffken.

(Pl.’s

Br. at 15-16.)
The Court finds that the ALJ also erred in failing to
request a medical source statement from Dr. A. Herschman.

The

Second Circuit has held that “remand is not always required when
an ALJ fails in his duty to request opinions, particularly where
. . .
can

the record contains sufficient evidence from which an ALJ

assess

the

petitioner’s

residual

functional

capacity.”

Tankisi v. Comm’r of Social Sec., 521 F. App’x 29, 34 (2d Cir.
2013) (declining to remand based on the ALJ’s failure to request
a

residual

functional

capacity

opinion

where

the

“voluminous

medical record assembled by the claimant’s counsel [ ] was adequate
to permit an informed finding by the ALJ”).

“Nevertheless, while

an ALJ may, in some circumstances, proceed without a medical source
opinion as to the claimant’s functional limitation, there still
must be ‘sufficient evidence’ for the ALJ to properly make the
[residual functional capacity] determination.”
1255725, at *17.

Simmons, 2016 WL

See Floyd v. Colvin, No. 13-CV-4963, 2015 WL

2091871, at *10 (E.D.N.Y. May 5, 2015) (holding that the ALJ erred
in

failing

to

request

statements

regarding

the

plaintiff’s

physical capabilities from his treating physicians).
Here, the record contains Dr. Skeene’s opinion dated
June 1, 2011 (R. 343); S. Collier’s opinion dated June 14, 2011
(R. 349-54); Dr. Z. Herschman’s treatment notes from February 17,
34

2011 through February 23, 2012 and opinion dated February 23, 2012
(R. 362-75); and Dr. Greenberg’s opinion dated March 24, 2012 (R.
377-80).

The only medical evidence for 2013 consists of Dr. A.

Herschman’s treatment notes, which do not contain an assessment of
Plaintiff’s

physical

abilities.

(See

generally

R.

380-400.)

Accordingly, there is a gap in the record regarding Plaintiff’s
functional limitations, if any, during early 2012 through 2013.
On remand, the ALJ should contact Dr. A. Herschman and request a
medical source statement.
D.

Credibility
“A 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.”

Garner v. Colvin, No. 13-

CV-4358, 2014 WL 2936018, at *10 (S.D.N.Y. June 27, 2014).

Thus,

the Court can only properly assess credibility “after the correct
application of the treating physician rule.”

Id. (remanding to

the

“the

Commissioner

and

directing

that

issue

of

credibility . . . be revisited on remand, and evaluated in light
of the proper application of the treating physician rule and [the
factors
should

for

evaluating

readdress

the

credibility]”).
issue

of

Accordingly,

credibility

on

the

remand

ALJ

after

developing the record and properly applying the treating physician
rule.
E.

The Listings
35

Plaintiff argues that the ALJ erred in determining that
Plaintiff’s knee impairment does not meet the criteria in Section
1.02A or 1.03 of the Listings.
remand,

the

ALJ

should

(Pl.’s Br. at 25-27; R. 18.)

reevaluate

whether

Plaintiff’s

On
knee

impairment satisfies the Listings after the record is further
developed.
F.

Remand to a Different ALJ
Plaintiff requests that this matter be remanded to a

different ALJ.

(Pl.’s Br. at 28.)

Generally, the decision to

assign a case to a different ALJ is within the Commissioner’s
discretion.

Taylor v. Astrue, No. 07-CV-3469, 2008 WL 2437770, at

*5 (E.D.N.Y. Jun. 17, 2008).
the

Commissioner

appropriate.”

“to

Id.

Nevertheless, courts have directed

appoint

a

new

ALJ

on

remand

where

In determining whether a new ALJ should be

appointed on remand, courts consider factors that include:
(1) a clear indication that the ALJ will not
apply the appropriate legal standard on
remand; (2) a clearly manifested bias or
inappropriate hostility toward any party; (3)
a clearly apparent refusal to consider
portions
of
the
testimony
or
evidence
favorable to a party, due to apparent
hostility to that party; (4) a refusal to
weigh or consider evidence with impartiality,
due to apparent hostility to any party.
Alfaro v. Colvin, 14-CV-4392, 2015 WL 4600654, at *12 (E.D.N.Y.
Jul. 29, 2015).

While the record does not indicate any bias or

hostility on the part of the ALJ, the Court finds that remand to

36

a different ALJ for a “fresh look” is warranted in light of the
previously noted errors of law in the ALJ’s decision as well as
his failure to fully develop the record and follow the decision of
the Appeals Council.

See Vicari v. Astrue, No. 05-CV-4967, 2009

WL 331242, at *6 (E.D.N.Y. Feb. 10, 2009) (Remanding to a different
ALJ where the underlying decision “which was authored with the
benefit

of

multiple

remand

orders

from

the

Appeals

Council,

contained fundamental errors of law and evinced a failure. . . to
consider the full medical evidence[.]”).

The Court notes that the

Commissioner has not expressly opposed Plaintiff’s request.
generally Comm’r Reply Br.)

(See

Accordingly, the Commissioner is

directed to assign this matter to a different administrative law
judge on remand.
CONCLUSION
For the foregoing reasons, the Commissioner’s motion
(Docket Entry 11) is DENIED, Plaintiff’s motion (Docket Entry 16)
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

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: August
25 , 2016
Central Islip, New York
37