Savage v. Colvin

Filing 23

ORDER denying 11 Motion for Judgment on the Pleadings; denying 15 Motion for Judgment on the Pleadings For the reasons set forth herein, the Commissioners motion for judgment on the pleadings is denied, plaintiffs motion for judgment on the pleadings is denied, and the case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. Ordered by Judge Joseph F. Bianco on 2/28/2017. (Hammond, Daniel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-5774 (JFB)
_____________________

RICHARD SAVAGE,
Plaintiff,
VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
Defendant.
___________________
MEMORANDUM AND ORDER
February 28, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff, Richard Savage (“plaintiff”),
commenced this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“SSA”),
challenging the final decision of the Commissioner of Social Security (“Commissioner”)
denying plaintiff’s application for disability
insurance benefits. An Administrative Law
Judge (“ALJ”) found that plaintiff had the residual functional capacity to perform some
light work, specifically work as a limousine
driver, hotel desk clerk, hand packer, or ticket
taker. Therefore, the ALJ concluded that
plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The Commissioner opposes
plaintiff’s motion and cross-moves for judgment on the pleadings. For the reasons set
forth below, the Court denies the Commis-

sioner’s motion for judgment on the pleadings, denies plaintiff’s motion for judgment
on the pleadings, and remands the case for
further proceedings consistent with this opinion.
I. BACKGROUND
A. Facts
The following summary of the relevant
facts is based on the Administrative Record
(“AR”) developed by the ALJ. (ECF No. 9.)
1. Personal and Work History
Born in 1966, plaintiff completed college
in 1990 and began work as a police officer
shortly thereafter, serving in that position until 2010. (AR at 191, 207.) Plaintiff injured
his left shoulder in 1999. (Id. at 284.) In May
2008, he reinjured that shoulder, as well as

and stretch. (Id. at 94, 217–18.) Reaching
caused “sharp pain.” (Id. at 218.) He also
indicated that he was “very cautious about
lifting anything” and would “not attempt to
lift anything heavier than 10 lbs.” (Id. at
217.) He could climb stairs when necessary,
occasionally kneel, and occasionally squat.
(Id. at 218.) Plaintiff could follow spoken
and written instructions, and he had no problem with stress, paying attention, or remembering things. (Id. at 219–20.)

his right shoulder, while apprehending a suspect. (Id. at 71, 284.) He underwent reconstructive surgery on his right shoulder in May
2009 and returned to work on restricted duty,
which plaintiff characterized as a “desk job”
that required him to perform paperwork, use
a computer, and answer a telephone. (Id. at
72.) He retired on October 31, 2010. (Id.)
Afterwards, he applied for and received a disability pension. (Id. at 73.) He declined a security job at Macy’s and did not actively seek
work following his retirement, citing pain in
his back rather than pain in his shoulder. (Id.
at 79–81, 93.)

Because of his back pain, plaintiff would
constantly need to change positions at night
and thus had trouble sleeping. (Id. at 108,
213.) During a typical day, he reported that
he would read, watch television, and drive his
kids to different locations. (Id. at 104–05,
213.) Plaintiff initially indicated that he
could “do basic chores such as ironing [and]
mowing [the] lawn” but avoided yard work.
(Id. at 101, 215.) Later, he stated that he
avoids household chores and his wife vacuumed, did the laundry, mowed the lawn, and
used the snow blower. (Id. at 101–02, 109.)
He also initially indicated he would attend his
kids’ sports games “most of the time” (id. at
217), at one point riding as a passenger in a
car for three hours to his son’s lacrosse tournament (id. at 97). He also drove himself to
the hearing before the ALJ, a 50-minute drive
each way. (Id. at 96–97.) Later, he stated he
would only attend local sporting events “once
in a while,” maybe five games a year or 20%
of the time. (Id. at 99–100.) He also said that
he struggles to sit through movies at the
movie theatre and does not go out with his
wife very often. (Id. at 100–01.) With his
right arm, plaintiff could shave, brush his
teeth, open a door with a key, put on a seatbelt, write, pick up change, push a grocery
cart, and lift up to ten pounds. (Id. at 92–93.)
When his back pain was not too severe, he
could dress himself, cook, barbeque, and
drive a car. (Id. at 96.)

Plaintiff sought Social Security Disability
benefits on June 26, 2012, complaining of
shoulder pain beginning in 2008 and lower
back pain beginning in 2005. (Id. at 191.) He
initially alleged an onset date of October 31,
2010, the day he retired, but later revised the
onset date to February 27, 2012 to correspond
with the onset of his lower back pain. (Id. at
106–08, 206.) He described the pain overall
as an ache in both shoulders, a stabbing and
aching pain in his lower back, and occasional
spurts of pain shooting down his legs from his
back. (Id. at 82, 220–21.) Plaintiff indicated
that he experienced this pain every day and
that prolonged sitting or standing would trigger his back pain. (Id. at 83, 221–22.) About
once a week, he would sporadically experience back pain so severe he could not leave
his bed except to use the restroom. (Id. at 84–
85.) He also stated that his right arm had lost
mobility, and he could not raise it above eye
level. (Id. at 89.) His right shoulder would
not cause him pain while at rest, but he indicated that “any type of motion,” such as
walking, would trigger at least “a little bit of
shoulder pain.” (Id. at 91.)
Plaintiff reported that he could stand for
up to ten minutes before needing to change
positions, could not walk without interruption, and could sit for ten to fifteen minutes
before feeling pain that required him to get up
2

joint effusion, it was “difficult to confirm this
tear.” (Id.) A report of an MRI signed on
May 19, 2008 revealed moderate acromioclavicular degenerative arthropathy and heterogeneous tendons in the rotator cuff suggesting calcific tendonitis. (Id. at 283.)

2. Medical History
On May 2, 2008, following his encounter
with the suspect where he injured his shoulders, plaintiff saw Dr. Salvatore J. Corso
(“Dr. Corso” or the “treating physician”), an
orthopedic surgeon. (Id. at 284–86.) Examination of the right shoulder revealed forward
elevation to 165 degrees and abduction to 150
degrees. (Id. at 285.) External rotation was
performed to 65 degrees and internal rotation
to T8. (Id.) Rotator cuff strength was mildly
decreased. (Id.) There was no sign of instability on stress testing. (Id.) The apprehension, Neer, Hawkins, and cross-body abduction tests were positive. (Id.) Examination of
the left shoulder revealed forward elevation
to 160 degrees and abduction to 150 degrees.
(Id.) External rotation was performed to 60
degrees and internal rotation to T7. (Id.) Rotator cuff strength was normal. (Id.) There
was anterior instability of the shoulder joint.
(Id.) The Speed’s test, Yergason’s test, and
O’Brien’s test were positive. (Id.) Neurological testing revealed normal sensation and
motor strength findings. (Id.)

Plaintiff returned to Dr. Corso on May 30,
2008, and examination produced results similar to the May 2 examination. (Id. at 280.)
Dr. Corso also reviewed the MRI results and
diagnosed an anterior labral tear in the right
shoulder and calcific tendonitis in the left.
(Id. at 280, 281.) He prescribed physical
therapy and sought authorization to perform
arthroscopic shoulder repair with two opus
anchors. (Id. at 281.)
On March 11, 2009, plaintiff had a follow-up visit with Dr. Corso. (Id. at 278.) Examination results were consistent with past
results, and an anterior labral tear was diagnosed in the right shoulder with MRI evidence. (Id. at 278–79.) Dr. Corso discussed
treatment options with plaintiff and noted
that plaintiff, having failed a lengthy trial of
non-operative treatments, wished to proceed
with surgery. (Id. at 279.) Dr. Corso performed arthroscopic reconstructive surgery
on plaintiff’s right shoulder on May 22, 2009.
(Id. at 273.)

Dr. Corso made the following diagnoses
in the right shoulder: bicipital tendonitis,
subacromial impingement syndrome, and
ruled out rotator cuff tear. (Id.) In the left
shoulder, he diagnosed a possible labral tear
with recurrent anterior and glumohumeral instability. (Id. at 286.) He recommended rest,
icing the joints, elevating the injured extremity, and physical therapy. (Id.) Dr. Corso
also ordered an MRI and recommended nonsteroidal, anti-inflammatory medications for
pain. (Id.)

Plaintiff returned to Dr. Corso on June 3,
2009, complaining of right shoulder pain.
(Id. at 271.) Examination showed no gross
signs of neurovascular defecits and no muscle atrophy or asymmetry. (Id.) Plaintiff’s
surgery scars had healed, and Dr. Corso removed the sutures. (Id.) He instructed plaintiff to rest his shoulder, discussed the entire
range of possible treatments, and recommended medication and a physical therapy
evaluation. (Id.)

A report of an MRI signed on May 15,
2008 showed no evidence of a rotator cuff
tear, but there were findings of mild osteoarthritis of the AC joints with no impingement
and an irregularity of the anterior superior
glenoid labrum suggesting the possibility of
a tear. (Id. at 282.) Because there was no

Additional follow-up visits occurred on
July 31, 2009, January 6, 2010, and March
31, 2010 where Dr. Corso made findings and
3

the right A-C joint and proximal humerus,
pain with resisted shoulder motion, no instability, muscle atrophy, or tenderness, and
positive apprehension, Neer, and Hawkins
tests. (Id.) Dr. Corso performed a subacromial corticosteroid injection into the right
shoulder. (Id. at 262.)

recommended treatment consistent with earlier visits. (Id. at 263–70.) On July 31, 2009,
he advised plaintiff to rest his right arm,
avoid activity that aggravated his pain, take
medication, and undergo physical and occupational therapy. (Id. at 269.) He also prescribed Oxycodone. (Id.) On January 6,
2010, examination revealed no muscle atrophy or asymmetry, forward elevation limited
to 145 degrees and abduction limited to 120
degrees, and mildly decreased rotator cuff
strength. (Id. at 267.) Dr. Corso recommended icing or heating the shoulder joint,
advised plaintiff to avoid athletic activities,
and prescribed Percocet. (Id.) On March 31,
2010, Dr. Corso noted tenderness over the
A-C joint and proximal humerus, pain with
resisted shoulder motion, no instability on
stress testing, and positive apprehension,
Neer, and Hawkins tests. (Id. at 265.) Dr.
Corso made the same recommendations as he
did on January 6, 2010. (Id. at 266.) He also
noted that plaintiff was “disabled from ability
to do the duties of a police officer.” (Id.)

On February 29, 2012, plaintiff visited
Dr. Corso for the first time after his onset
date, complaining of back pain. (Id. at 257–
59.) Examination of the shoulders revealed
results consistent with past examinations.
(Id. at 258.) Examination of the lumbar spine
showed normal alignment, decreased range
of motion through the lumbar spine due to
pain and stiffness, forward flexion to 60 degrees, extension to 10 degrees, and rotation to
20 degrees bilaterally. (Id.) Dr. Corso found
no gross neurologic impairment or lateralizing signs. (Id.) There was lumbar tenderness
present diffusely at the left gluteal region and
muscle spasms in the left lumbar muscles, but
no swelling. (Id.) FABRE test was positive
in the left lumbar region. (Id.) Straight leg
raise testing was positive on the left side, but
under “neurological examination,” Dr. Corso
indicated that “straight leg test is negative.”
(Id.) His diagnostic impression for the lumbar spine was lumbosacral radiculitis, and he
ordered an MRI. (Id. at 259.)

On April 28, 2010, Dr. Corso wrote a letter recounting plaintiff’s medical history and
treatment up to that point and indicating that
plaintiff had “not made significant progress
over the last two to three months” and also
had “a significant disability especially in his
line of work.” (Id. at 264.) Plaintiff “would
be at increased risk using a firearm with the
right shoulder,” Dr. Corso continued, “since
his range of motion is limited and his pain
persists.” (Id.) Dr. Corso concluded that
plaintiff was “disabled from his line of work
and [could] only do restrictive duty.” (Id.)
Finally, “his prognosis for full duty return as
a police officer [was] poor.” (Id.)

An MRI of the lumbar spine performed
on March 3, 2012 revealed diffuse degenerative disc disease with multilevel bulging and
facet arthropathy and central herniation L4L5, with no significant mass effect on the thecal sac. (Id. at 256.)
Plaintiff met with Dr. Corso again on
March 7 and May 10, 2012. (Id. at 249, 252.)
At the March visit, plaintiff reported problems sitting and standing for extended periods and radiation of pain from his back into
his legs. (Id. at 252.) In May, he also reported persistent lower back pain and numb-

On June 17, 2011, plaintiff visited Dr.
Corso for the final time before his onset date
in February 2012. (Id. at 260–62.) Plaintiff
reported discomfort in his right shoulder that
swimming seemed to alleviate. (Id. at 261.)
Examination again revealed tenderness over
4

There were full ranges of motion in the cervical spine and no abnormalities in the thoracic spine. (Id.) Lumber spine range of motion was flexion to 40 degrees; lateral flexion
to 15 degrees; and rotation to 15 degrees.
(Id.) Straight leg raising was negative bilaterally. (Id.) Range of motion in the right
shoulder was forward elevation/abduction to
120 degrees, and external rotation to 70 degrees. (Id.) He had full ranges of motion in
the left shoulder, and both elbows, forearms,
wrists, hips, knees, and ankles. (Id. at 288–
89.) Strength was full (5/5) and deep tendon
reflexes were physiologic and equal in the
upper and lower extremities. (Id. at 289.)
There were no sensory deficits. (Id.) Hand
and finger dexterity were intact; grip strength
was full (5/5) in both hands. (Id.) Lumbar
spine x-rays showed an asymmetric transitional L5 vertebral body, but was otherwise
unremarkable. (Id. at 292.) Right shoulder xrays showed status post-surgery. (Id. at 291.)

ness in his left foot. (Id. at 249.) Examination results for the shoulders and back during
both visits were consistent with the February
29 results. (Id. at 250, 253.) Dr. Corso’s May
diagnostic impression of the lumbar spine
was lumbosacral spondylosis without myelopathy, and he recommended medication,
periodic rest, icing, and elevation. (Id. at
250.) He also stated that plaintiff was unable
to work and prescribed physical therapy two
to three times per week over four weeks. (Id.)
On June 6, 2012, Dr. Corso completed a medical assessment of ability to do work-related
activities, discussed in detail below. (Id. at
309–11.)
After filing an application for Social Security Disability benefits in June 2012, plaintiff visited Dr. Andrea Pollack for a consultative examination on October 22, 2012. (Id. at
287.) Plaintiff reported lower back pain since
2005, describing it as constant, radiating into
his legs, and greater on the right side. (Id.)
Dr. Pollack noted his diagnosis of bulging
discs and herniated discs, and treatment of
physical therapy, but no injections or surgery.
(Id.) Plaintiff also reported right shoulder
pain since May 2008 due to a work-related
injury that “comes and goes” but was made
“worse with movement such as reaching.”
(Id.) Dr. Pollack noted his surgery, physical
therapy, and injections resulting from a labral
tear. (Id.) She also noted that he cooked
twice a week, shopped once a week, provided
childcare twice a week, showered and
dressed himself independently, watched television, listened to the radio, and read. (Id.)

Plaintiff returned to Dr. Corso on January
31, 2013, complaining of numbness and tingling, persistent lower back pain, and problems sitting or standing for any length of
time. (Id. at 313.) Examination results were
similar to the results from Dr. Corso’s February 29, March 7, and May 10, 2012 examinations. (Id. at 314.) His diagnoses were unchanged from the May 10 examination. (Id.
at 315.) He prescribed physical therapy two
to three times per week for six weeks, a brace
and a splint, and Percocet for pain. (Id. at
315.) Dr. Corso indicated that plaintiff had a
chronic disability and was unable to work.
(Id.)

On examination, Dr. Pollack noted that
plaintiff was “in no acute distress,” had a normal gait, could walk on his heels and toes
without difficulty, could squat three quarters
of the way down, used no assistive devices,
needed no help changing clothes or getting on
and off the examination table, and could rise
from his chair without difficulty. (Id. at 288.)

Plaintiff received another consultative
examination on February 5, 2013 in connection with his disability application. (Id. at
302.) Dr. Craig Billinghurst noted a bilateral
shoulder injury, labral tear with surgery on
the right shoulder, continuous right shoulder
pain, tenderness over the proximal humerus,
pain with range of movement, no instability,
5

exposure to heights, moving machinery, temperature extremes, and vibration. (Id. at 311.)

positive impingement sign, mild rotator cuff
strength, and no atrophy. (Id.) He further
noted that the left shoulder examination was
normal, but range of motion in the back was
decreased due to pain, a positive straight leg
raising test on the left side, diffuse tenderness
at the left gluteal region, and muscle spasms.
(Id.) He reported that an MRI showed degenerative disc disease with multilevel bulging
and facet arthropathy but no stenosis. (Id.)

Dr. Pollack, meanwhile, diagnosed lower
back pain with radiation and bilateral shoulder pain based on her October 22, 2012 examination. (Id. at 289.) She opined that
plaintiff had a moderate restriction in bending, lifting, and carrying. (Id.) He also had
mild restrictions in walking, standing, squatting, and pushing, pulling, and reaching with
the right arm. (Id.) Dr. Pollack neither specified that the reaching restriction was limited
to overhead reaching nor defined the parameters of a “mild” restriction. (See id.)

Plaintiff visited Dr. Corso on March 27,
2013, complaining of chronic neck and lower
back pain, which at times was severe (id. at
316), and again on July 10, 2013, reporting
persistent lower back pain, numbness, and
problems sitting or standing for any length of
time (id. at 319). During both visits, the examination results, diagnosis, and treatment
remained substantially the same as previous
visits. (Id. at 317, 320–21.)

Dr. Billinghurst determined from his February 5, 2013 examination that there was no
support for a more limited residual functional
capacity than that established by the disability analyst on November 5, 2012 (id. at 302),
i.e., a residual functional capacity for sedentary work with limited capability to reach in
all directions (id. at 293–98.)

3. Opinions of Physicians
In his June 6, 2012 medical assessment of
ability to do work-related activities, Dr.
Corso opined that plaintiff could lift up to ten
pounds only occasionally (defined as “from
very little up to 1/3 of an 8-hour day”) because of “multiple bulging discs” in the lumbar spine that caused him pain and spasm.
(Id. at 309.) He also cited pain and weakness
in the right upper extremity due to plaintiff’s
right shoulder rotator cuff tear surgery. (Id.)
Citing the same medical findings, Dr. Corso
opined that plaintiff could stand or walk for
two to three hours during an eight-hour workday and without interruption for ten minutes.
(Id.) Similarly, he indicated that plaintiff
could sit for up to two hours and without interruption for ten to fifteen minutes. (Id. at
310.) Dr. Corso stated that plaintiff could
never climb, stoop, crawl, or balance and
could occasionally crouch or kneel. (Id.) He
opined that plaintiff’s reaching, handling,
feeling, and pushing/pulling would cause exacerbation of his pain and spasm, as would

Finally, on September 21, 2013, Dr. John
Axline completed interrogatories at the
ALJ’s request based on a review of plaintiff’s
medical file, though he never examined
plaintiff. (Id. at 322.) Dr. Axline noted the
following impairments: shoulder injury, surgically corrected and rehabilitated with mild
residual impairment; degenerative disc disease, lumbar, mild, without neurological loss;
left shoulder impairments alleged with full
range of motion and retained function; and elevated blood glucose without diagnosis, confirmation, or treatment. (Id.) He then indicated that none of these impairments equaled
the criteria of an impairment listed in Appendix 1 of 20 C.F.R. § 404.1520. (Id. at 323.)
On the same day, Dr. Axline also completed a medical assessment of ability to do
work-related activities based on his review of
plaintiff’s medical file. (Id. at 325.) Citing

6

4. Vocational Evidence

mild lumbar disc degeneration on MRI images, Dr. Axline opined that plaintiff could
lift or carry up to ten pounds frequently and
up to twenty pounds occasionally, but never
more than that. (Id.) He further opined that
plaintiff could sit or walk for up to two hours
without interruption and stand for up to one
hour without interruption. (Id. at 326.) In total in an eight-hour workday, Dr. Axline indicated that plaintiff could sit for six hours,
stand for two hours, and walk for four hours.
(Id.) Citing the surgical repair of plaintiff’s
right shoulder, Dr. Axline stated that plaintiff
could never reach overhead with his right
hand but could continuously reach in all other
directions and in any direction with his left
hand. (Id. at 327.) Dr. Axline opined that
plaintiff could continuously handle, finger,
feel, and push or pull in an eight-hour workday and could frequently operate foot controls with both feet. (Id.) In Dr. Axline’s
view, plaintiff could occasionally climb stairs
and ramps, stoop, kneel, crouch and crawl.
(Id. at 328.) He could never climb ladders or
scaffolds, but could continuously balance.
(Id.) Dr. Axline opined that plaintiff could
tolerate exposure to unprotected heights,
moving mechanical parts, humidity and wetness, and vibrations frequently. (Id. at 329.)
He could occasionally operate a motor vehicle or tolerate extreme heat or cold occasionally, but could never tolerate dust, odors,
fumes, and pulmonary irritants. (Id.) Finally,
Dr. Axline opined that plaintiff could perform activities like shopping, travel without a
companion for assistance, ambulate without
a wheelchair, walker, or cane, walk a block at
a reasonable pace on rough or uneven surfaces, use public transportation, climb a few
steps at a reasonable pace, prepare simple
meals and feed himself, care for his personal
hygiene, and sort, handle, or use paper and
files. (Id. at 330.)

Andrew Pasternack, a vocational expert,
testified at a hearing on plaintiff’s application
for disability benefits. (Id. at 54–62.) He
stated that plaintiff’s past work as a police officer was a light skilled job. (Id. at 55.)
When asked if there were jobs in the national
economy that could be performed by a hypothetical individual of plaintiff’s age, education, and past work experience, who could lift
and carry up to twenty pounds occasionally
and ten pounds frequently, sit up to six hours
a day, stand and walk up to two hours a day,
not reach overhead with his right upper dominant extremity, and not use ladders or scaffolds (id. at 55–56), Pasternack stated that
such a person could not perform work as a
police officer (id. at 57). Nevertheless, after
noting that transferability of skills is not an
issue for someone under the age of fifty like
plaintiff, Pasternack stated that the hypothetical individual could perform work as a limousine driver, hand packager, or a ticket
taker. (Id. at 58–60.) He also testified that
there were 224,600 jobs as a limousine driver
in the national economy, 318,000 jobs as a
hand packager, and 100,000 jobs as a ticket
taker. (Id. at 58–60.) Pasternack also said the
hypothetical individual could perform work
as a hotel desk clerk—a position with
224,000 jobs in the national economy—but
retracted that job when he recognized that a
hotel desk clerk would have to stand for more
than two hours. (Id. at 58–59.)
B. Procedural History
Plaintiff filed an application for Social
Security Disability benefits on June 26, 2012,
claiming disability beginning on October 31,
2010. (Id. at 191.) The claim was denied
initially (id. at 111–12, 116–23), and plaintiff
requested a hearing before an ALJ (see id. at
124–31). Plaintiff appeared with counsel before ALJ Ronald R. Waldman on September
11, 2013 (id. at 65–110), where he testified
7

and revised his onset date to correspond with
the onset of his lower back pain on February
27, 2012 (id. at 106–08). The ALJ held a supplemental hearing on January 7, 2014 to take
testimony from the vocational expert and to
permit cross examination of Dr. Axline. (Id.
at 26–64.) The ALJ issued an unfavorable
decision denying the claim on March 17,
2014. (Id. at 9–25.) The Appeals Council
denied plaintiff’s request for review of the
ALJ’s decision on August 6, 2015, making
the ALJ’s March 17 decision the final decision of the Commissioner. (Id. at 1–6.)

evidence in the record.” Clark v. Comm’r of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
If the court finds that there is substantial evidence to support the Commissioner’s determination, the decision must be upheld, “even
if [the court] might justifiably have reached a
different result upon a de novo review.”
Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.
1991) (citation omitted); see also Yancey v.
Apfel, 145 F.3d 106, 111 (2d Cir. 1998)
(“Where an administrative decision rests on
adequate findings sustained by evidence having rational probative force, the court should
not substitute its judgment for that of the
Commissioner.”).

Plaintiff filed this action seeking reversal
of the ALJ’s decision on October 6, 2015.
(ECF No. 1.) The Court received the administrative transcripts on March 24, 2016. (ECF
No. 8.) Plaintiff filed a motion for judgment
on the pleadings on June 7, 2016, and the
Commissioner filed a cross-motion for judgment on the pleadings on August 5, 2016.
(ECF Nos. 11, 15.) Plaintiff replied on August 30, 2016, and the Commissioner replied
on September 22, 2016. (ECF Nos. 19, 21.)
The Court has fully considered the parties’
submissions.

III. DISCUSSION
A. The Disability Determination
A claimant is entitled to disability benefits if the claimant is unable “to engage in any
substantial gainful activity by reason of any
medically determinable physical or mental
impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period not less
than
twelve
months.”
42
U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the SSA unless it is “of such severity that he
is not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy.” Id. § 1382c(a)(3)(B).

II. STANDARD OF REVIEW
A district court may set aside a determination by an ALJ “only if it is based upon legal error or if the factual findings are not supported by substantial evidence in the record
as a whole.” Greek v. Colvin, 802 F.3d 370,
374–75 (2d Cir. 2015) (citing Burgess v.
Astrue, 537 F.3d 117, 127 (2d Cir. 2008); 42
U.S.C. § 405(g)). The Supreme Court has defined “substantial evidence” in Social Security cases to mean “more than a mere scintilla” and that which “a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (internal citation omitted); see
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013). Furthermore, “it is up to the agency,
and not [the] court, to weigh the conflicting

The Commissioner has promulgated regulations establishing a five-step procedure for
evaluating disability claims. See 20 C.F.R.
§§ 404.1520, 416.920. The Second Circuit
has summarized this procedure as follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently em-

8

2015, had not engaged in substantial gainful
activity since his onset date, and suffered
from “severe impairments,” including degenerative disc disease of the lumbar spine and
status post arthroscopic surgery of the right
shoulder. (AR at 14.) These impairments did
not, however, fall under the list of impairments outlined in Appendix 1 of the regulations. (Id.) He also found that plaintiff could
not perform his past work. (AR at 20.)

ployed. If the claimant is not employed, the [Commissioner] then determines whether the claimant has a
“severe impairment” that limits her
capacity to work. If the claimant has
such an impairment, the [Commissioner] next considers whether the
claimant has an impairment that is
listed in Appendix 1 of the regulations. When the claimant has such an
impairment, the [Commissioner] will
find the claimant disabled. However,
if the claimant does not have a listed
impairment, the [Commissioner]
must determine, under the fourth step,
whether the claimant possesses the residual functional capacity to perform
her past relevant work. Finally, if the
claimant is unable to perform her past
relevant work, the [Commissioner]
determines whether the claimant is
capable of performing any other
work.

At the fourth step, the ALJ concluded that
plaintiff had
the residual functional capacity to
perform light work as defined in 20
CFR 404.1567(a) except he can sit for
six hours, stand/walk for two hours,
lift/carry up to twenty pounds occasionally and lift/carry ten pounds frequently in an eight-hour workday. He
cannot reach overhead with the right
upper extremity or climb ladders and
scaffolds.

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps, but the Commissioner bears the burden
of proving the last step. Id.

(Id. at 15.) In support of this conclusion, the
ALJ found that, although plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged
symptoms,” his “statements concerning the
intensity, persistence and limiting effects of
these symptoms are not entirely credible.”
(Id. at 16.) He found that the “medical evidence [did] not demonstrate significantly abnormal clinical findings and laboratory studies supporting the claimant’s allegations of
total disability.” (Id.) Specifically, in plaintiff’s shoulders, the ALJ noted that Dr. Corso
“reported tenderness in the right shoulder
with mildly decreased rotator cuff strength
and positive impingement signs,” but “there
was no tenderness in the left shoulder and 5/5
strength in the remaining muscle groups of
the right shoulder as well as the left upper extremity.” (Id.) Furthermore, “[r]ange of motion of the shoulders was full without pain or
crepitus and there [were] no masses, gross

The Commissioner “must consider” the
following in determining a claimant’s entitlements to benefits: “(1) the objective medical
facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence
of pain or disability testified to by the claimant or others; and (4) the claimant’s educational background, age, and work experience.” Id. (quoting Mongeur v. Heckler, 722
F.2d 1033, 1037 (2d Cir. 1983) (per curiam)).
B. The ALJ’s Ruling
The ALJ here determined that plaintiff
met the insured status requirements of the Social Security Act through December 31,
9

based on a complete physical examination
and was consistent with Dr. Axline’s opinion.
(Id. at 20.)

deformities, muscle atrophy or instability.”
(Id.) In plaintiff’s lumbar spine, the ALJ
noted Dr. Corso’s findings of “tenderness,
spasm and limited range of motion . . . due to
pain and stiffness, tenderness in the left gluteal region and positive straight leg raising on
the left,” but he also reported that “there were
no motor strength deficits in the lower extremities and there were no reflex or sensory
deficits in the upper or lower extremities.”
(Id.)
Meanwhile, “[d]iagnostic studies
showed bulging and herniated discs in the
lumbar spine but there was no evidence of
stenosis or cord involvement.” (Id.)

Summarizing his conclusions regarding
plaintiff’s residual functional capacity, the
ALJ stated that plaintiff “has some pain from
degenerative disc disease of the lumbar spine
and injury and arthroscopic surgery of his
right shoulder that results in some functional
limitations but they are no[t] so severe as to
preclude performance of all substantial gainful activity.” (Id.) In particular, plaintiff “retain[ed] the residual functional capacity to
perform light work” because he could “sit for
up to six hours, stand/walk up to two hours
and lift/carry up to twenty pounds occasionally and up to ten pounds occasionally in an
eight-hour work day,” though the ALJ also
noted that plaintiff could not “lift overhead
with the right dominant arm or climb ladders
or scaffolds.” (Id.) The ALJ asserted that the
assessments from both Dr. Corso and Dr. Axline supported this finding, as did plaintiff’s
daily activities and his acknowledgment that
“physically he would be able to work at a
light duty job with his right shoulder problem.” (Id.)

After summarizing the examination results and opinions of Drs. Corso, Pollack, and
Axline, the ALJ “accorded great weight” to
Dr. Axline’s opinion “because [Dr. Axline]
reviewed the entire medical record and heard
[plaintiff’s] testimony at the supplemental
hearing.” (Id. at 19.) The ALJ gave “more
weight” to this “contemporaneous opinion”
than Dr. Corso’s June 6, 2012 opinion, which
“was written approximately 19 months prior
to the hearing and only four months after the
amended alleged onset date.” (Id.) Dr.
Corso also did not specify “what period [his
opinion] applie[d] to or whether there was
any expectation that the limitations would exist prospectively.” (Id.) Furthermore, some
of the doctor’s examination notes contained
inconsistencies, such as his reports of both a
positive and a negative straight leg raising
test on the same leg on the same day. (Id.)
Finally, the ALJ noted that plaintiff’s “activities of daily living,” such as his cooking,
barbequing, food shopping, and traveling,
were “more consistent with Dr. Axline’s
opinion than Dr. Corso’s opinion.” (Id.) For
these reasons, he credited Dr. Axline’s opinion over Dr. Corso’s, though he did not specify how much weight he accorded Dr.
Corso’s opinion. (Id.)

Having concluded that plaintiff retained
the residual functional capacity to perform
some light work, the ALJ found that plaintiff
qualified as a “younger individual,” as he was
44 on the alleged onset date, and had attained
a high school education. (Id.) The ALJ then
concluded that, based on plaintiff’s “age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy
that [plaintiff] can perform.” (Id. at 21.) Specifically, the ALJ relied on Pasternack’s testimony to conclude that plaintiff could perform work as a limousine driver, hotel desk
clerk, hand packer, or ticket taker. (Id. at 21–
22.) Consequently, the ALJ determined that
plaintiff did not qualify for disability benefits. (Id. at 22)

As for Dr. Pollack’s opinion, the ALJ accorded it “[s]ome weight” because it was
10

C. Analysis

“mandates that the medical opinion of a
claimant’s treating physician [be] given controlling weight if it is well supported by medical findings and not inconsistent with other
substantial record evidence.” Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); see also,
e.g., Rosa v. Callahan, 168 F.3d 72, 78–79
(2d Cir. 1999); Clark, 143 F.3d at 118; 20
C.F.R. § 404.1527(c)(2).

Plaintiff challenges the ALJ’s conclusions that he has the residual functional capacity to perform some light work and that
jobs exist in the national economy that plaintiff can perform. 1 Specifically, plaintiff asserts that (1) substantial evidence does not
support the ALJ’s finding that plaintiff can
perform unrestricted reaching with his right
arm other than overhead reaching and (2) the
jobs the ALJ claimed plaintiff could perform
are inappropriate given plaintiff’s limitations.
(Pl.’s Mem. of Law in Support of Pl.’s Mot.
for Judgment on the Pleadings (“Pl.’s Br.”),
ECF No. 12, at 17, 21). He also argues that
Dr. Corso’s opinion was entitled to great
weight and Dr. Axline’s was entitled to no
weight. (Pl.’s Reply Mem. of Law (“Pl.’s Reply”), ECF No. 19, at 1, 3.)

Nevertheless, “[g]enerally, ‘the opinion
of the treating physician is not afforded controlling weight where . . . the treating physician issued opinions that are not consistent
with . . . the opinions of other medical experts,’ for ‘[g]enuine conflicts in the medical
evidence are for the Commissioner to resolve.’” Burgess, 537 F.3d at 128 (quoting
Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004), and Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002), respectively) (omissions and second alteration in original). As
the Second Circuit has stated, however, “not
all expert opinions rise to the level of evidence that is sufficiently substantial to undermine the opinion of the treating physician.”
Id. Indeed, the opinions of consultative and
non-examining physicians are entitled to
comparatively little weight. See Vargas v.
Sullivan, 898 F.2d 293, 295–96 (2d Cir.
1990) (“The general rule is that ‘the written
reports of medical advisors who have not personally examined the claimant deserve little
weight in the overall evaluation of disability.
The advisers’ assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the
claimant.’” (quoting Allison v. Heckler, 711
F.2d 145, 147–48 (10th Cir. 1983))); Filocomo v. Chater, 944 F. Supp. 165, 170 n.4
(E.D.N.Y. 1996) (“[T]he conclusions of a
physician who merely reviews a medical file
and performs no examination are entitled to

As set forth below, the Court concludes
that the ALJ erred by failing to provide “good
reasons” for crediting Dr. Axline’s opinion
over Dr. Corso’s and by failing to indicate
how much weight he accorded Dr. Corso’s
opinion. These errors warrant remand.
1. Opinion of the Treating Physician
Plaintiff argues that the treating physician’s opinion was entitled to great weight.
(Pl.’s Reply at 1–3.) The Commissioner responds that the ALJ correctly evaluated Dr.
Corso’s opinion before choosing to reject it.
(Def.’s Reply Mem. of Law (“Def.’s Reply”),
ECF No. 21, at 1–3.) For the following reasons, the Court concludes that a remand on
this issue is warranted.
The Commissioner must give special evidentiary weight to the opinion of a treating
physician. See Clark, 143 F.3d at 118. The
“treating physician rule,” as it is known,
1

The Court concludes that substantial evidence supports the ALJ’s determinations with respect to the
other steps.

11

“affirmative duty to develop the administrative record” and, consequently, “cannot reject
a treating physician’s diagnosis without first
attempting to fill any clear gaps in the administrative record.” Burgess, 537 F.3d at 129.

little if any weight.”); see also Selian, 708
F.3d at 419 (“ALJs should not rely heavily on
the findings of consultative physicians after a
single examination.”); Santiago v. Barnhart,
441 F. Supp. 2d 620, 627 (S.D.N.Y. 2006)
(holding that ALJ erred in giving consulting
physicians’ opinions controlling weight over
those of the treating physicians); but see
Micheli v. Astrue, 501 F. App’x 26, 29 (2d
Cir. 2012) (“[T]he applicable regulations
‘permit the opinions of nonexamining
sources to override treating sources’ opinions
provided they are supported by evidence in
the record.” (quoting Diaz v. Shalala, 59 F.3d
307, 313 n.5 (2d Cir. 1995))).

Here, on June 6, 2012, treating physician
Dr. Corso opined that, in an eight-hour work
day, plaintiff could lift up to ten pounds occasionally, stand or walk for two to three
hours and without interruption for ten
minutes, sit for up to two hours and for ten to
fifteen minutes without interruption, never
climb, stoop, crawl or balance, and occasionally crouch or kneel. (AR at 309.) Dr. Corso
also stated that plaintiff’s reaching, handling,
feeling, and pushing or pulling would cause
exacerbation of his pain and spasm. (Id. at
311.) By contrast, Dr. Axline, a non-examining physician who reviewed plaintiff’s medical file and heard his testimony, opined that,
in an eight-hour workday, plaintiff could lift
up to ten pounds frequently and twenty
pounds occasionally, stand for two hours total and up to an hour without interruption,
walk for four hours total and up to two hours
without interruption, and sit for six hours total and up to two hours without interruption.
(Id. at 326.) He also stated that plaintiff could
reach in all directions with his right hand except overhead and could occasionally climb
stairs and ramps, stoop, kneel, crouch and
crawl. (Id. at 326–27.)

Correspondingly, when an ALJ decides
that the opinion of a treating physician should
not be given controlling weight, the ALJ
must “give good reasons in [the] notice of determination or decision for the weight [she]
gives [the claimant’s] treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2); see Burgess, 537 F.3d at 129; Perez v. Astrue, No.
07–CV–958 (DLJ), 2009 WL 2496585, at *8
(E.D.N.Y. Aug. 14, 2009). Specifically,
“[a]n ALJ who refuses to accord controlling
weight to the medical opinion of a treating
physician must consider certain ‘factors’ to
determine how much weight to give the opinion.” Halloran, 362 F.3d at 32 (citing 20
C.F.R. § 404.1527(d)(2)). Those factors include: “(i) the frequency of examination and
the length, nature and extent of the treatment
relationship; (ii) the evidence in support of
the treating physician’s opinion; (iii) the consistency of the opinion with the record as a
whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the
[ALJ’s] attention that tend to support or contradict the opinion.” Id. (citing 20 C.F.R.
§ 404.1527(d)(2)). If an ALJ fails “to provide ‘good reasons’ for not crediting the
opinion of a claimant’s treating physician,”
remand is appropriate. Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999); Burgess, 537
F.3d at 129–30. Relatedly, an ALJ has an

The ALJ gave “more weight” to Dr. Axline’s opinion, providing the following reasons: (1) Dr. Corso’s opinion was nineteen
months old at the time of the hearing and did
not indicate whether there was any expectation that plaintiff’s limitations would continue prospectively, while Dr. Axline’s was
contemporaneous; (2) Dr. Corso’s treatment
notes contained some demonstrable errors;
and (3) plaintiff’s testimony about his daily
activities and ability to work with his shoulder injury were consistent with Dr. Axline’s

12

opinion but not Dr. Corso’s. 2 (Id. at 19–20.)
The ALJ did not, however, specify precisely
how much weight he accorded Dr. Corso’s
opinion. (See id.)

same opinion regarding plaintiff’s ability to
do work at the time of the hearing or if the
limitations in his earlier opinion applied prospectively, the doctor could have clarified his
position. Likewise, Dr. Corso could have explained the errors in his notes if the ALJ had
asked him about the seeming contradiction
over whether plaintiff passed or failed his
straight leg raising test. Under these circumstances, “the ALJ should have taken steps directing [plaintiff] to ask Dr. [Corso] to supplement his findings with additional information,” rather than merely citing those gaps
in the record as reasons for rejecting the treating physician’s opinion outright. Id.; see also
Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998) (“The lack of clinical findings complained of by the ALJ did not justify the failure to assign at least some weight to Dr.
Jobson’s opinion. . . . [E]ven if the clinical
findings were inadequate, it was the ALJ’s
duty to seek additional information from Dr.
Jobson sua sponte.”); Clark, 143 F.3d at 118
(“If asked, Dr. Sookhu might have been able
to provide a medical explanation for why
Clark’s condition deteriorated over time.”).

The ALJ violated the treating physician
rule in two ways. First, he did not provide
“good reasons” for refusing to give Dr.
Corso’s opinion controlling weight. The first
two reasons the ALJ provided for rejecting
Dr. Corso’s opinion—the timing and vagueness of that opinion and the errors in Dr.
Corso’s notes—do not constitute valid
grounds for rejecting it. Instead, the ALJ has
merely identified “clear gaps in the administrative record” that he had an obligation to
“attempt[] to fill.” Burgess, 537 F.3d at 129;
see also Selian, 708 F.3d at 420 (“[T]o the
extent that record is unclear, the Commissioner has an affirmative duty to fill any clear
gaps in the administrative record before rejecting a treating physician’s diagnosis.”). In
Rosa, for example, the treating physician
only supplied a single-page, “wholly conclusory” assessment of the plaintiff’s condition
to account for several years’ worth of medical
history. 168 F.3d at 79–80. The Second Circuit held that, “[c]onfronted with this situation, the ALJ should have taken steps directing Rosa to ask Dr. Ergas to supplement his
findings with additional information. It is entirely possible that Dr. Ergas, if asked, could
have provided a sufficient explanation for
any seeming lack of support for his ultimate
diagnosis of complete disability.” Id. at 80
(brackets omitted).

The final reason the ALJ gave for discrediting Dr. Corso’s opinion—plaintiff’s
testimony regarding his daily activities—
alone does not justify his departure from the
treating physician rule. Although courts have
cited inconsistencies between a plaintiff’s
daily living and a treating physician’s opinion as grounds for rejecting that decision,
such inconsistencies should not be sufficient,
by themselves, to discredit a treating physician’s opinion, but must be considered in
light of the complete record. See, e.g., Rivera

The same is true here. If the ALJ had
asked Dr. Corso whether he still held the
2

Dr. Axline’s opinion “cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician” because Dr. Axline was
a “nonexamining physician.” Lester v. Chater, 81
F.3d 821, 831 (9th Cir. 1995); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“[R]eliance on
the opinion of nonexamining physicians cannot, by itself, constitute substantial evidence.” (citing Lester, 81

F.3d at 831)); Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003) (“An ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence in the record; a contradictory opinion
of a non-examining physician does not, by itself, suffice.”).

13

v. Colvin, No. 15 CIV. 3857(AJP), 2015 WL
9591539, at *15 (S.D.N.Y. Dec. 18, 2015)
(citing several other factors on which ALJ relied in properly rejecting treating physician’s
opinion); Blessing v. Colvin, No. 3:14-CV1489 (GTS), 2015 WL 7313401, at *10
(N.D.N.Y. Nov. 19, 2015) (same); Steller v.
Comm’r of Soc. Sec., No. 2:10-CV-160, 2011
WL 926874, at *5 (D. Vt. Mar. 15, 2011)
(same); Bennett v. Astrue, No. 07-CV-0780
NAM, 2010 WL 3909530, at *5–6 (N.D.N.Y.
Sept. 30, 2010) (same); Coyle v. Apfel, 66 F.
Supp. 2d 368, 378 (N.D.N.Y. 1999) (same);
Carey v. Apfel, 6 F. Supp. 2d 195, 201
(W.D.N.Y. 1998) (same); see also Indelicato
v. Colvin, No. 13–CV–4553, 2014 WL
674395, at *3–5 (E.D.N.Y. Feb. 21,
2014) (“[T]he ability to perform many specific daily activities does not itself mean that
[the plaintiff] is not disabled. But taken together, these activities give texture both to
medical diagnosis and subjective accounts,
and they provide an important objective basis
by which to evaluate a person’s symptoms.”
(emphasis added)).

and did “not cite any medical evidence that
these activities and comments are inconsistent with plaintiff’s claimed disability.”
Id. (emphasis added); see also Nutkins v.
Shalala, No. 92-CV-40, 1994 WL 714252, at
*8 (N.D.N.Y. Dec. 22, 1994) (“[D]aily activities clearly are not ‘medical evidence’ which
can contradict a treating physician’s opinion.”). Thus, absent additional reasons for rejecting the treating physician’s opinions, the
court concluded the ALJ erred in doing so.
Brown, 418 F. Supp at 262.
Likewise, in this case, given the inadequacies of the ALJ’s other explanations with
respect to the medical evidence, the ALJ
could not rely solely on plaintiff’s daily activities to justify crediting Dr. Axline over
Dr. Corso. 3 See id. This final justification
for rejecting the treating physician’s opinion,
therefore, does not by itself amount to a
“good reason” for doing so, especially because additional review of the medical evidence on remand might alter the ALJ’s views
regarding the plaintiff’s testimony. Overall,
therefore, the ALJ failed to provide “good
reasons” for crediting Dr. Axline’s opinion
over Dr. Corso’s. See Burgess, 537 F.3d at
132; Halloran, 362 F.3d at 32; Santiago, 441
F. Supp. 2d at 627; see also 20 C.F.R.
§ 404.1527(c)(2).

On the contrary, in Brown v. Barnhart,
418 F. Supp. 2d 252, 262 (W.D.N.Y. 2005),
the court held that perceived inconsistencies
between a treating physician’s opinion and a
plaintiff’s testimony regarding her daily life
were insufficient for the ALJ to disregard the
opinion. Specifically, the court there held
that “the ALJ improperly substituted his own
opinion for the opinions . . . of plaintiff’s
treating physicians” where “[t]he ALJ found
[the] plaintiff not disabled, based primarily
on her activities of daily living, such as the
fact that she listened to music, sat in the sun,
stayed up late at night, visited with friends,
and accompanied a relative on fishing trips”

In any event, even assuming the ALJ did
provide “good reasons” for according Dr.
Corso’s opinion less weight than Dr. Axline’s, he still erred “by failing to properly determine how much weight to accord [Dr.
Corso’s] opinion.” Gorel v. Astrue, No. 10CV-5660 NGG, 2012 WL 3250048, at *10
(E.D.N.Y. Aug. 7, 2012); see also Foxman v.
Barnhart, 157 F. App’x 344, 346 (2d Cir.

3
In addition, much of plaintiff’s testimony concerning
his daily life was consistent with Dr. Corso’s opinion.
(See, e.g., AR at 93 (plaintiff testifying that he could
never lift more than ten pounds); id. at 99 (plaintiff
testifying that he only went to about five local sports
games per year due to difficulty sitting); id. at 102, 109

(plaintiff testifying that his wife completed most
chores, including mowing the lawn and snow-blowing).)

14

2005) (“An ALJ is entitled to give greater
weight to the opinion of a non-treating physician—and even to disregard the opinion of a
treating physician altogether—but only if the
ALJ’s decision is based upon proper consideration of the [20 C.F.R. § 404.1527] factors.”). In Gorel, the court concluded that an
ALJ committed this error when “she ignored
important evidence in support of [the treating
physician’s] opinion” and “appear[ed] to
have accorded it [no weight] at all.” Id. Similarly, the ALJ here simply stated that “Dr.
Axline is given more weight than Dr.
Corso[]” without specifying how much
weight he gave Dr. Corso’s opinion, instead
seeming to give it no weight whatsoever.
(AR at 19–20.) As in Gorel, moreover, there
was “important evidence in support of [Dr.
Corso’s] opinion.” 2012 WL 3250048, at
*10. Specifically, Dr. Corso, an orthopedic
specialist, frequently treated plaintiff for
shoulder and back pain from May 2008
through July 2013 (see AR at 250–86, 313–
21), and at least some of the medical evidence
supports his conclusion regarding plaintiff’s
capacity to sit, stand, walk, and reach. See
Halloran, 362 F.3d at 32 (ALJ must consider
“the frequency of examination and the length,
nature and extent of the treatment relationship; . . . the evidence in support of the treating physician’s opinion; . . . [and] whether
the opinion is from a specialist” (citing 20
C.F.R. § 404.1527(d)(2))). For example, Dr.
Corso consistently noted that plaintiff’s apprehension, Neer, and Hawkins tests were
positive (id. at 258, 261, 265, 285) and that
plaintiff experienced pain with resistance to
shoulder motion as well as tenderness over

the right A-C joint and proximal humerus (id.
at 258, 261, 265). An MRI of plaintiff’s
back, meanwhile, revealed diffuse degenerative disc disease with multilevel bulging and
facet arthropathy and central herniation L4L5. (Id. at 256.) Dr. Corso also diagnosed an
anterior labral tear in the right shoulder (id. at
271, 281), performed surgery on that shoulder to treat the tear (id. at 273), and prescribed pain medication for both shoulder
and back pain (id. at 266, 267, 269).
This evidence provided at least some support for Dr. Corso’s opinion, but the ALJ
does not even discuss it when weighing the
physicians’ opinions. 4 Under Gorel, therefore, by failing to specify how much weight
he accorded that opinion—and seemingly according it none at all in the face of supporting
evidence—the ALJ violated the clear command of the regulations “that a treating physician’s opinion should not be completely rejected if that opinion is found to be non-controlling.” Ellington v. Astrue, 641 F. Supp.
2d 322, 330 (S.D.N.Y. 2009) (citing 20
C.F.R. § 404.1527(d)(2)); see also Gorel,
2012 WL 3250048, at *10; Hach v. Astrue,
No. 07-CV-2517 (ENV), 2010 WL 1169926,
at *11 (E.D.N.Y. Mar. 23, 2010).
In short, the ALJ failed to provide “good
reasons” for lending less than controlling
weight to Dr. Corso’s opinion. Snell, 177
F.3d at 133. That failure “by itself warrants
remand.” Selian, 708 F.3d at 419. Moreover,
even if the ALJ had provided good reasons
for not giving Dr. Corso’s opinion “controlling weight,” it was still entitled to some

4

Although some of Dr. Corso’s examination notes
seem to cut against his June 6, 2012 opinion (see, e.g.,
id. at 261, 271 (noting no muscle atrophy, instability,
or tenderness in the right shoulder)), the ALJ did not
cite that evidence as a reason for rejecting Dr. Corso’s
opinion, nor did he simply discount Dr. Corso’s opinion in light of that evidence (id. at 20). Furthermore,
the ALJ discussed the medical findings only when
summarizing those findings and evaluating plaintiff’s

subjective complaints of pain. (Id. at 16–19.) The
medical findings played no explicit role in his evaluation of the competing opinions. (See id. at 19–20 (citing age of opinion, errors in notes, and plaintiff’s daily
activities as the only reasons for giving Dr. Axline’s
opinion more weight).)

15

Dr. Axline’s opinion. See Micheli, 501 F.
App’x at 29; Netter v. Astrue, 272 F. App’x
54, 55–56 (2d Cir. 2008) (“Under the applicable regulations, even ‘nonexamining
sources’ may ‘override treating sources’
opinions, provided they are supported by evidence in the record.’” (quoting Schisler v.
Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)));
Scott v. Colvin, No. 14-CV-7331 (RRM),
2016 WL 5173252, at *15 (E.D.N.Y. Sept.
21, 2016) (similar); Rosario v. Comm'r of
Soc. Sec., No. 14-CV-1605 (DLI), 2016 WL
1258476, at *14 (E.D.N.Y. Mar. 30, 2016)
(similar); Oliphant v. Astrue, No. 11-CV2431, 2012 WL 3541820, at *15 (E.D.N.Y.
Aug. 14, 2012) (similar).

weight, see Ellington, 641 F. Supp. 2d at 330,
so the ALJ erred by failing to specify how
much weight he gave it, see Gorel, 2012 WL
3250048, at *10; Hach, 2010 WL 1169926,
at *11. On remand, the ALJ is instructed to
fully consider the 20 C.F.R. § 404.1527 factors, specify the amount of weight given to
Dr. Corso’s opinion, and, should he choose to
give that opinion less than controlling weight,
provide “good reasons” for doing so in light
of the factors.
2. Remaining Arguments
Plaintiff also asserts that there was not
substantial evidence to support the ALJ’s
finding that plaintiff can perform unrestricted
reaching with his right arm other than overhead reaching. (Pl.’s Br. at 18–20; Pl.’s Reply at 4.) This argument largely amounts to
a claim that the ALJ erred in crediting Dr.
Axline’s testimony over Dr. Corso’s, as that
finding was the basis for the ALJ’s conclusion that plaintiff could reach in any direction
except overhead. (See Pl.’s Br. at 18–20;
Pl.’s Reply at 4.) In addition, plaintiff argues
that there was not substantial evidence to support the finding that he could perform work
as a limousine driver, hotel desk clerk, hand
packer, and ticket taker. (Pl.’s Br. at 21.)
This finding was also based on the ALJ’s decision to accord Dr. Axline’s opinion greater
weight than Dr. Corso’s. (See AR at 21.)

IV. CONCLUSION
For the reasons set forth above, the Commissioner’s motion for judgment on the
pleadings is denied. Plaintiff’s motion for
judgment on the pleadings is denied. The
case is remanded to the ALJ for further proceedings consistent with this Memorandum
and Order.
SO ORDERED.
___________________
JOSEPH F. BIANCO
United States District Judge

Dated: February 28, 2016
Central Islip, NY

In light of this Court’s ruling that the ALJ
committed legal error by failing to give
“good reasons” for rejecting Dr. Corso’s
opinion and failing to specify how much
weight he gave that opinion, the Court need
not and does not address these issues. If,
however, the ALJ decides on remand to accord more weight to Dr. Axline’s opinion
than Dr. Corso’s, in addition to setting forth
“good reasons” for doing so and specifying
the weight accorded to Dr. Corso’s opinion,
the ALJ is also directed to state with particularity the evidence in the record that supports

***
Plaintiff is represented by Christopher J.
Bowes, 54 Cobblestone Drive, Shoreham,
New York 11786. The Commissioner is represented by Candace S. Appleton, Assistant
U.S. Attorney, on behalf of Robert L. Capers,
United States Attorney, Eastern District of
New York, 271 Cadman Plaza East, 7th
Floor, Brooklyn, New York, 11201.
16