Scioscia v. Colvin
Filing
16
ORDER denying 9 Motion for Judgment on the Pleadings; denying 12 Motion for Judgment on the Pleadings; MEMORANDUM AND OPINION. 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. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/9/2017. (Zbrozek, Alex)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-6612 (JFB)
_____________________
COSMOS JOSEPH SCIOSCIA,
Plaintiff,
VERSUS
CAROLYN W. COLVIN, ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.
___________________
MEMORANDUM AND ORDER
March 9, 2017
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Cosmos Joseph Scioscia
(“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 (the
“Commissioner”)
denying
plaintiff’s
application for disability insurance benefits.
An Administrative Law Judge (“ALJ”) found
that plaintiff had the residual functional
capacity to perform the full range of light
work, of which there were a significant
number of jobs in the national economy, and,
therefore, that plaintiff was not disabled. The
Appeals Council denied plaintiff’s request
for review.
The Commissioner now moves for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
Plaintiff opposes the Commissioner’s motion
and cross-moves for judgment on the
pleadings.
For the reasons set forth below, the Court
denies the Commissioner’s motion for
judgment on the pleadings, denies plaintiff’s
motion for judgment on the pleadings, and
remands the case to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
I. BACKGROUND
A. Facts
The following summary of the relevant
facts is based on the Administrative Record
(“AR”) developed by the ALJ. (ECF No. 7.)
1. Personal and Work History
Plaintiff was born on January 6, 1964.
(AR at 61.) He graduated from high school
and has some college education. (Id. at 26.)
His past relevant work includes positions as
17, 2012, Dr. Mango administered a series of
five Hyalgan injections to plaintiff’s left
knee. (Id. at 269-78.) On April 27, 2012, Dr.
Mango advised plaintiff not to return to work
because plaintiff reported that his left knee
buckled and that he was unable to bear full
weight. (Id. at 280.)
director of special events for a country club,
as a general/regional manager, and four
months as a telemarketer. (Id. at 77.)
After raising a family and working for
most of his adult life, plaintiff’s medical
problems began on June 19, 2010, when he
suffered an on-the-job accident. (Id. at 216.)
He struggled to work for the next two years,
but his impairments forced him to stop
working. (Id. at 27-31.) Plaintiff continued
to look for employment while pursuing his
claim for disability benefits. (Id. at 27.)
On May 4, 2012, an MRI of plaintiff’s left
knee revealed interval placement of an
anterior cruciate ligament graft, with a frayed
graft, which was irregular in signal consistent
with a partial thickness tear. (Id. at 306.) The
MRI also revealed an interval development
of a horizontal tear of the posterior horn of
the medial meniscus, degenerative changes
of the knee medially, large joint effusion, and
popliteal cyst. (Id.)
2. Medical History
a. Prior to Onset Date of July 6,
2012
On July 16, 2010, plaintiff began
treatment with Dr. Enrico Mango for a workrelated injury that occurred on June 19, 2010.
(Id. at 216.) X-rays of plaintiff’s left knee
revealed
patellofemoral
degenerative
changes. (Id. at 217-18.) Dr. Mango’s
clinical impression of plaintiff’s condition
was acute knee left anterior strain and a
traumatic chondromalacia patella of the left
knee. (Id. at 217.) Dr. Mango requested
approval of an MRI to rule out anterior
cruciate ligament tear and a meniscal tear.
(Id.) Dr. Mango opined that plaintiff was
“total disabled.” (Id.)
b. After Onset Date of July 6, 2012
Upon examination on July 20, 2012, Dr.
Mango deemed plaintiff’s condition as
“unchanged.” (Id. at 214.) The examination
findings indicated that plaintiff had decreased
left knee antero-medial pain with a decreased
activity level, along with weakness in the left
knee with prolonged activity. (Id.) Dr.
Mango opined that plaintiff had a “partial”
disability, and recommended physical
therapy three times a week for six weeks.
(Id.) Dr. Mango’s prognosis for plaintiff was
“guarded.”
(Id.)
Dr. Mango also
recommended heat treatment. (Id.)
Plaintiff subsequently visited Dr. Mango
for treatment on July 27, 2010 (id. at 219),
August 3, 2010 (id. at 221), and August 17,
2010 (id. at 223). On August 18, 2010, Dr.
Mango approved plaintiff’s return to work on
a part-time basis. (Id. at 224.) On September
7, 2010, an MRI of plaintiff’s left knee
revealed a grade 2 signal within the posterior
horn of the medial meniscus and small joint
effusion. (Id. at 304.) On April 7, 2011,
plaintiff underwent left knee surgery for an
ACL repair performed by Dr. Mango. (Id. at
310-14.) From March 19, 2012 through April
On August 17, 2012, Dr. Mango’s
assessment and prognosis of plaintiff’s
condition were the same as his July 20, 2012
assessment and prognosis of plaintiff’s
condition. (Id. at 213-14.) Plaintiff was
noted as having bilateral knee pain with
increased activity, and on-and-off right knee
pain due to his favoring of his left knee. (Id.)
Dr. Mango advised plaintiff to treat with heat
and
non-steroidal
anti-inflammatory
medicines (“NSAIDs”), as well as physical
2
On April 1, 2013, Dr. Samir Dutta
conducted a consultative orthopedic
examination of plaintiff. (Id. at 197-98, 32629.) Plaintiff complained of having a knee
injury in 2009, which continued to cause him
some pain, difficulty standing, walking,
lifting, and sitting for a long period of time.
(Id. at 326.) Plaintiff noted that the pain is
usually sharp and shooting in nature, and that
the pain is aggravated with any kind of
sitting, standing, or walking. (Id.) Plaintiff
noted that the pain is relieved to some extent
with pain medication and intra-articular
injection of steroids and Synvisc. (Id.)
Plaintiff stated that he had lower back pain
for one year, which plaintiff described as dull
aching. (Id.)
therapy three times a week for six weeks. (Id.
at 213.)
On September 19, 2012, Dr. Mango
indicated that plaintiff’s condition and partial
disability were unchanged, but also that there
were new “findings” related to right knee
pain. (Id. at 211.) The examination revealed
persistent left knee pain with prolonged
activity, increasing right knee pain due to
favoring the left leg, and right knee
chondromalacia
patella,
which
was
consequential due to plaintiff’s antalgic gait.
(Id.) X-rays of plaintiff’s right knee revealed
no evidence of fracture or dislocation, with
bone quality appearing normal and joint
spaces intact. (Id. at 212.) Dr. Mango’s
prognosis was “guarded.” (Id. at 211.) Dr.
Mango recommended that plaintiff use
“ice/heat” for treatment, but did not
recommend any additional physical therapy.
(Id.)
Upon examination, plaintiff appeared to
be in no acute distress. (Id. at 327.) He
limped on the left side (both with and without
a cane). (Id.) Plaintiff had difficulty walking
on his heels and toes. (Id.) His station was
normal, but he could not squat. (Id.) Plaintiff
stated that the cane was provided by his
doctor a year earlier and helped to stabilize
his left knee. (Id.) Without his cane, plaintiff
was able to walk and stand for only a few
steps. (Id.) Dr. Dutta deemed that the cane
was “medically needed,” particularly when
plaintiff goes “up stairs or walks on uneven
surfaces.” (Id.) Plaintiff did not need any
help getting onto or off of the examination
table, and was able to rise from his chair
without difficulty. (Id.)
On October 17, 2012, Dr. Mango again
indicated that plaintiff’s condition was
“unchanged,” that plaintiff had a partial
disability, and that plaintiff should use
“ice/heat” (and not physical therapy) for
treatment. (Id. at 210.) On November 14,
2012, Dr. Mango repeated his October 17,
2012 assessment of plaintiff, but noted that
plaintiff should also use NSAIDs for
treatment. (Id. at 209.) On December 17,
2012, January 16, 2013, and February 27,
2013, Dr. Mango’s assessment and findings
remained unchanged. (Id. at 207-08, 29599.)
On examination, plaintiff’s range of
motion in the shoulders was as follows:
forward elevation to 120 degrees bilaterally;
abduction to 120 degrees; and full abduction,
internal rotation, and external rotation
bilaterally. (Id. at 327-28.) Plaintiff had 5/5
strength in the proximal and distal muscles,
no muscle atrophy, and no sensory or reflex
abnormalities in the upper extremities. (Id. at
328.) Plaintiff’s range of motion in the
thoracic and lumbar spine was as follows:
On March 20, 2013, Dr. Mango’s
physical examination of plaintiff’s left knee
revealed decreased swelling, decreased
effusion, decreased medial and lateral facet
tenderness, and range-of-motion from 0-125
degrees. (Id. at 338.) Dr. Mango opined that
plaintiff’s disability status was “total” and
that he could not return to work due to his left
knee pain. (Id. at 338-39.)
3
On July 31, 2013, Dr. Mango found that
plaintiff’s disability status remained partial
(Id. at 347.) He changed the status to “total”
disability on September 9, 2013 because
plaintiff was not responding to NSAIDs or
cortisone injections.
(Id. at 348-49.)
Disability status remained “total” on October
8, 2013. (Id. at 350-51.)
Dr. Mango
recommended physical therapy three times a
week for six weeks, as well as five Hyalgan
injections into his left knee. (Id. at 350.) On
October 15, 2013, Dr. Mango’s assessment
was unchanged, except he noted that
plaintiff’s condition had “improved.” (Id. at
353.)
flexion to 60 degrees; lateral bending to 20
degrees; extension to 20 degrees; and rotation
to 20 degrees. (Id.) There was no spinal or
paraspinal tenderness and no sacroiliac joint
or sciatic notch tenderness. (Id.) There was
slight spasm in the lower lumbar spine. (Id.)
A straight leg raising test was negative. (Id.)
Knee flexion was 120 degrees on the right
side and 110 on the left. (Id.) An
arthroscopic scar, slight tenderness in the
front and to the side, and swelling was noted
in the left knee. (Id.) There was full range of
motion of the ankles bilaterally. (Id.) In the
lower extremities, there was no muscle
atrophy; sensory or reflex loss; or effusion,
inflammation, or instability. (Id.) Plaintiff
declined a left ankle X-ray. (Id.)
On October 22, October 29, and
November 6, 2013, Dr. Mango reported that
plaintiff’s condition had “improved,” but that
he was still totally disabled and needed
physical therapy. (Id. at 355-58.) On
December 11, 2013, Dr. Mango noted
“some” improvement, but that plaintiff was
still totally disabled. (Id. at 361.) On January
15, 2014, Dr. Mango again noted “some”
improvement and decreased pain due to the
Hyalgan series of injections and physical
therapy. (Id. at 363.) Dr. Mango found that
plaintiff was still totally disabled. (Id.)
Dr. Dutta diagnosed a post-anterior
cruciate ligament repair with cadaver bone
graft in the left knee; osteoarthritis
degenerative changes; being overweight; and
a history of backaches. (Id.) Dr. Dutta
opined that plaintiff had a mild limitation for
sitting, and a moderate limitation on
standing, walking, lifting things, ascending
and descending stairs, and bending on a
continued basis. (Id.)
On April 17, 2013, Dr. Mango noted that
plaintiff’s condition was “unchanged,” and
that plaintiff’s disability was “total.” (Id. at
341.) On May 15, 2013, Dr. Mango noted
that plaintiff’s disability status was now
“partial.” (Id. at 342-43.)
Dr. Mango
recommended physical therapy for plaintiff’s
left knee, three times a week, for six weeks,
along with five Hyalgan injections. (Id. at
343.) On June 27, 2013 Dr. Mango’s
assessment was unchanged. (Id. at 345.) In
a report the following day, Dr. Mango stated
that a series of Hyalgan injections worked
very well and provided six months of relief.
(Id. at 344.) The report made no mention of
whether plaintiff could return to work. (Id.)
On January 28, 2014, plaintiff visited Dr.
Robert L. Hecht, a physical medicine and
rehabilitation
physician
at
Island
Musculoskeletal Care, with complaints of
pain in both shoulders (greater in the left
shoulder) and pain in the mid- and lower
back. (Id. at 336.) Plaintiff reported to Dr.
Hecht that “he injured his left shoulder years
ago, secondary to a fall,” and that he had had
“pain in his back since the end of 2013,” but
“denie[d] any particular injury.” (Id.) He
also had had a previous work injury to his left
knee and underwent arthroscopic surgery for
that injury. (Id.) Plaintiff also reported to Dr.
Hecht that he was in a motor vehicle accident
in 2001, resulting in a laceration to his left leg
and numbness in the left leg distally to the
4
humeral joint effusion with likely synovitis;
and (5) moderate achromioclavicular
hypertrophy and edema, with trace
subacromial/subdeltoid bursitis. (Id. at 36667.)
point of the scar. (Id.) Plaintiff reported that
he last worked in July 2012. (Id.)
Dr. Hecht’s examination of the left
shoulder revealed diffuse tenderness;
abduction to 110 degrees (normal is 180);
anterior flexion to 120 degrees (normal is
180); internal rotation to 50 degrees (normal
is 90); external rotation to 70 degrees (normal
is 90); and positive impingement sign. (Id.)
Examination of the right shoulder revealed
diffuse tenderness; abduction to 130 degrees;
anterior flexion to 140 degrees; internal
rotation to 70 degrees; external rotation to 70
degrees, and negative impingement sign.
(Id.) Examination of the thoracolumbar spine
revealed tenderness; flexion to 60 degrees
(normal is 90); extension to 10 degrees
(normal is 30); left lateral flexion to 10
degrees (normal is 30); left lateral rotation to
20 degrees (normal is 30); right lateral
flexion to 10 degrees (normal is 20); and right
lateral rotation to 10 degrees (normal is 30).
(Id.) Plaintiff displayed no spasm and normal
lordosis, and straight leg raise testing was
negative bilaterally. (Id.) Plaintiff’s left knee
had healed arthroscopic portals, tenderness in
the medial and lateral joint lines of the knee,
mild atrophy of the distal quadriceps, and
mild weakness with knee extension. (Id.) He
lacked extension by 5 degrees (normal is 0),
and had flexion to 100 degrees (normal is
135). (Id.) He had positive crepitus,
McMurray’s sign, and Equivocal Lachman’s
sign.
(Id.) Plaintiff had a scar in the
proximal third of the anterior tibia on the lefthand side, which plaintiff said was from the
motor vehicle accident, with decreased
sensation to light touch in a patchy
distribution extending distally. (Id.)
On February 12, 2014, Dr. Mango noted
that there was some decrease in pain while
plaintiff was in physical therapy. (Id. at 365.)
An MRI conducted on March 5, 2014
revealed normal lumbar lordosis and
maintained vertebral body heights. (Id. at
368-69.) There was minimal retrolisthesis of
L5 and S1 and no definite expansile or
destructive osseous lesion. (Id. at 368.) No
abnormal bone marrow edema was identified
(Id.)
Although there was a limited
evaluation, the spinal cord signal appeared
unremarkable.
(Id.)
There was disc
distortion at L1-L2, L4-L5, and L5-S1 and
mild disc narrowing at L1-L2 and L5-S1.
(Id.) There was mild disc bulge at L1-L2, but
L1-L2, L2-L3, and L3-L4 had no disc
herniation, spinal canal, or foraminal
stenosis. (Id.) Plaintiff’s L4-L5 and L5-S1
displayed mild concentric disc bulge. (Id.)
The MRI revealed that L4-L5 had mild
bilateral facet arthropathy and ligamentum
flavum in-folding, which caused mild spinal
canal stenosis. (Id.) There was mild left
foraminal stenosis, but it was not significant
on the right. (Id.) The paravertebral
musculature was grossly unremarkable. (Id.)
At L5-S1, there was a mild concentric disc
bulge with a dorsal annular fissure and
associated
central
disc
protrusion
(herniation) effacing the ventral thecal sac
without significant spinal canal stenosis. (Id.
at 369.) There was mild bilateral facet
arthroplasty with posterior osteophyte
spurring causing mild bilateral foraminal
stenosis. (Id.)
An MRI of the left shoulder conducted on
February 5, 2014, revealed: (1) mild
supraspinatus tendinosis; (2) low grade
partial tear of the distal subscapularis tendon
at its insertion; (3) evidence of a Bankart and
Hill-Sachs deformity; (4) small gleno-
On March 10, 2014, plaintiff visited Dr.
Nabil Farakh, an orthopedic surgeon with
Island Musculoskeletal Care. (Id. at 372-73.)
Plaintiff complained of neck and left
5
that plaintiff was restricted to occasionally
lifting or carrying 5 to 10 pounds. (Id. at
330.) He restricted plaintiff to only sitting for
3 hours, standing for 2 hours, and walking for
2 hours in an 8-hour workday. (Id. at 331.)
Dr. Hecht indicated that plaintiff could sit for
2 hours at a time without interruption and
could stand or walk for less than 1 hour
without interruption. (Id.) Dr. Hecht stated
that plaintiff did not need a cane to ambulate.
(Id.) He opined that with his right hand,
plaintiff could occasionally reach and push or
pull, and could continuously (more than twothirds of the time) perform activities
involving handling, fingering, and feeling.
(Id. at 332.) With his left hand, plaintiff
could occasionally reach and push or pull,
and could frequently (from one-third to twothirds of the time) participate in handling,
fingering, or feeling. (Id.) Dr. Hecht opined
that plaintiff could occasionally climb stairs,
ramps, ladders, and scaffolds; balance; stoop;
and crouch. (Id.) Dr. Hecht indicated that
plaintiff could occasionally tolerate exposure
to unprotected heights, moving mechanical
parts, and operating motor vehicles;
frequently tolerate humidity and wetness,
extreme cold, extreme heat, and vibrations;
and continuously tolerate dust, odors, fumes,
and pulmonary irritants. (Id. at 333.) Dr.
Hecht noted that plaintiff could perform
activities such as shopping and traveling
without assistance; was able to ambulate
without assistance of a device such as a cane
or wheelchair; use standard transportation;
climb a few steps at a reasonable pace while
using a handrail; prepare a simple meal and
feed himself; and care for his personal
hygiene. (Id. at 334.) Dr. Hecht reported that
plaintiff was unable to walk a block at a
reasonable pace or on uneven or rough
surfaces. (Id.) Dr. Hecht stated that the
earliest date of the above listed limitations
began in July 2012, and he expected the
disability to persist. (Id. at 335, 337.)
shoulder pain and also reported to Dr. Farakh
a “new condition of exacerbated pain of the
cervical spine and right leg pain.” (Id. at
372.) Plaintiff stated that he had tripped and
fell the previous week, causing right leg pain
and exacerbating his neck pain.
(Id.)
Plaintiff also complained of pain to the
thoracic and lumbar spine, as well as pain to
the left shoulder. (Id.) Examination of the
cervical spine revealed diffuse tenderness,
limited range of motion secondary to the
pain, paravertebral muscle spasms and
tenderness, and a soft compartment. (Id.)
Plaintiff’s muscle strength was full (5/5) in
bilateral
upper
extremities.
(Id.)
Examination of the thoracic and lumbar spine
revealed diffuse tenderness, limited range of
motion, and soft compartment. (Id.) In the
lower extremities, muscle strength was full
(5/5), and deep tendon reflexes were 2/4
bilaterally. (Id.) Plaintiff’s left shoulder had
a limited range of motion. (Id.) Plaintiff had
tenderness in the right tibia and fibula area
and no tenderness or swelling of the calf.
(Id.) Plaintiff had full range of motion of
right knee and right ankle with pain on
anterior aspect of the right leg, and the right
lower extremity compartment was soft. (Id.)
X-rays of the cervical spine revealed
decreased normal cervical lordosis and
degenerative changes, but no displaced
fracture nor dislocation. (Id. at 372, 374.) Xrays of the right tibia and fibula revealed no
displaced fracture and no dislocation. (Id.)
Dr. Farakh’s impressions were neck pain;
chronic thoracic and lumbar spine pain (rule
out disc injury); right leg contusion; and
impingement syndrome of the left shoulder.
(Id. at 372.) Dr. Farakh recommended
limiting heavy activities involving the spine,
left upper extremity, and right lower
extremity. (Id.)
On March 10, 2014, Dr. Hecht completed
a Medical Source Statement of plaintiff’s
Ability to Do Work-Related Activities
(Physical). (Id. at 330-35.) Dr. Hecht opined
6
of the thoracic and lumbar spine revealed
diffuse tenderness, limited range of motion
secondary to the pain, soft compartment
bilaterally in the lower extremities, and full
strength (5/5) bilaterally. (Id.) Dr. Farakh
noted that an MRI of the lumbar spine had
shown herniated disc L5-S1, multiple
desiccation discs, degenerative changes, and
no fracture or dislocation. (Id.) Dr. Farakh’s
impression was that plaintiff had chronic
thoracic and lumbar spine pain, herniated
disc at L5-S1, and impingement syndrome of
the left shoulder with a partial rotator cuff
tear. (Id.) Dr. Farakh recommended a
cortisone and Lidocaine injection in the left
shoulder, physical therapy, pain medications
as needed, and that plaintiff wear a soft
lumbar brace. (Id.) Dr. Farakh discussed the
possibility of surgery to the left shoulder if
symptoms continued and requested a follow
up in six weeks. (Id.)
Additionally, Dr. Hecht’s examination of
plaintiff’s lower extremities revealed a full
active range of motion of both hips, right
knee, and both ankles. (Id.) Motor strength
of the hips, knees, and ankles was full (5/5)
bilaterally, and reflexes of the paella and
Achilles were 2+ and symmetric bilaterally.
(Id.) Dr. Hecht assessed derangement of the
left knee, status post arthroscopy, lumbar disc
bulge, disc desiccations, derangement of the
right shoulder, and statuspost laceration to
the left leg. (Id.) Dr. Hecht reported that the
examination findings were consistent with
plaintiff’s complaints. (Id.)
In a physical assessment of plaintiff,
dated March 12, 2014, Dr. Mango stated that
in an 8-hour work day, plaintiff could walk,
stand, sit, push, pull, and bend for 1-2 hours;
hear, speak, and use his hands for more than
4 hours; use public transportation for 1-2
hours; and climb or use the stairs for 1-2
hours. (Id. at 377-78.) He stated plaintiff
could lift/carry up to 10 pounds, and claimed
that plaintiff could not participate in
employment, education, or training. (Id. at
378.) Dr. Mango stated plaintiff could not
participate in activities such as rehabilitations
or treatment programs, and opined that
plaintiff was extremely vulnerable to cold
and heat. (Id.) He wrote that plaintiff could
sit, stand, or walk for only twenty-minute
intervals. (Id.) Dr. Mango recommended
reevaluation in six months, but stated that
plaintiff could not currently work due to total
disability. (Id. at 377-78.)
3. Plaintiff’s Testimony at the
Administrative Hearing
On March 20, 2014, plaintiff,
accompanied by counsel, testified before the
ALJ. (Id. at 23-58.) He stated that he lives in
a house with his wife, who also is disabled,
and that he also has two adult children. (Id. at
35.)
In the early 1990s, plaintiff had his own
cellular telephone business. (Id. at 56.)
Plaintiff also worked as a telemarketer for
Slomin’s Oil Company from September 2011
through January 2012, but resigned because he
“couldn’t sit or stand too long of a period of
time.” (Id. at 29.) He was looking for work
“that wouldn’t fixate [him] in that one
position.” (Id. at 30.) Plaintiff then went on
to work at Four Seasons as an event
coordinator, but “it was straining [his] knee. It
was . . . aggravating it again and [his] back.”
(Id. at 31.) That was his last job. (Id. at 26.)
Plaintiff “set up various point of sale, point of
contacts to generate leads for the sales team
Upon return to Dr. Farakh on March 14,
2014, plaintiff reported that his lumbar spine
pain had improved. (Id. at 370.) The
improvement lasted for several weeks, but
the pain became exacerbated again. (Id.)
Plaintiff further reported that he still had
lumbar and thoracic spine pain, as well as left
shoulder pain. (Id.) Examination revealed
tenderness and limited range of motion in
plaintiff’s left shoulder. (Id.) Examination
7
only may stand for up to 10 minutes. (Id.)
During the ALJ hearing, he asked to stand to
avoid muscle spasms. (Id.)
throughout Suffolk and Nassau.” (Id. at 26.)
That position did not require him to stay at a
desk, but he “still had to stand and . . . lift.”
(Id. at 30.) He worked there from January
through July 1, 2012, when he was laid off.
(Id. at 26-27, 29-30.) Plaintiff’s employment
at Slomin’s and Four Seasons “both were
situations where [he] felt [he] was over [his]
head with [his] injuries.” (Id. at 31.) Since
then, plaintiff has tried unsuccessfully to find
a job in a virtual home office. (Id. at 27.)
Plaintiff testified that he spends his days
managing his pain and his doctors’
appointments. (Id. at 35.) He awakes at 6:00
a.m. and lets the dog out. (Id. at 35-36.) He
only has energy for the first hour of the day,
and does manage to use the bathroom, shower,
and dress. (Id. at 36.) Plaintiff takes Motrin
for inflammation, Flexeril for back spasms,
and Vicodin when he “can’t level out the
pain.” (Id. at 37.) He tries to avoid Vicodin
because “it’s a narcotic, it’s not a good thing
to take so [he tries] and use Motrin to remove
the problem.” (Id. at 38.) Because of his pain,
plaintiff must lay down four times a day. (Id.
at 38.) He has to lay down “at least a good 10
minutes,” but sometimes longer, testifying: “It
depends, sometimes for no good reason the
muscle spasms will last 20 minutes.” (Id. at
44.) Plaintiff attends physical therapy, when
he is covered by insurance, and he has
physical therapy sessions at Dr. Farakh’s
office, although he goes no more than twice a
week so as to not “inflame [his] injuries.” (Id.
at 40-41.) However, he explained that his wife
had to drive him to the ALJ hearing. (Id. at
41.)
Plaintiff testified that he has both a cane
and a leg brace, but only uses the cane when
he has to get out of a car; he uses the leg brace,
prescribed by Dr. Mango, constantly. (Id. at
55.) He explained that although his home has
stairs, “it’s hard for [him] to climb up the stairs
so [he]’ll keep stuff downstairs rather than go
up everyday.” (Id. at 56.) He cannot kneel,
and if he bends, “any bending is going to
inflame [his] injuries.” (Id.) Plaintiff limits
the amount of times he has to get in and out of
a car, and when he takes Vicodin for pain, he
cannot drive and becomes irritable, as well as
lethargic. (Id. at 56-57.) Plaintiff testified
that, rather than take the Vicodin, he prefers to
lay down until the pain subsides. (Id. at 57.)
Although unsure whether his medication
would affect his ability to perform in a
telemarketing position, plaintiff stated that his
position at Four Seasons required a lot of
driving and display set-up. (Id. at 57.)
Plaintiff testified that, after breakfast, he
goes online in search of employment. (Id.) He
has interviewed with HTN for a work-at-home
position as a customer service representative,
but had yet to hear back from them at the time
of the hearing. (Id. at 42.) He has been
looking for work since he lost his last job, and
searches for work online daily. (Id. at 43.)
After his daily job search, plaintiff goes about
his day, and he goes with his wife and his
father to their doctors’ appointments, but
plaintiff does not do the driving. (Id. at 46.)
His father lives about two miles away, and his
mother takes care of the father. (Id.) Plaintiff
will sometimes pay his bills online, but his
wife or daughter have to do the grocery
Plaintiff estimated that he could only lift
“about two to five pounds” without inflaming
his injuries. (Id. at 31-32.) When his injuries
are aggravated, the pain “goes right to the
shoulder, back, and then if [he’s] standing or
sitting it’ll go to [his] knees.” (Id. at 32.) Dr.
Farakh prescribed a back belt for plaintiff, and
without the belt, he “would be fidgeting a lot
standing, sitting.” (Id. at 32.) In addition,
plaintiff testified that he can only walk back
and forth to his mailbox without “inflaming
his injuries.” (Id. at 34.) He only may walk
up to 5 minutes before needing to rest, and
8
claim on May 16, 2014. (Id. at 8-22.) The
Appeals Council denied plaintiff’s request
for review of the ALJ’s decision on
September 21, 2015, making the ALJ’s May
16, 2014 decision the final decision of the
Commissioner. (Id. at 1-5.)
shopping. (Id. at 47-48.) He can no longer
help his wife with the grocery bags. (Id. at
48.) Plaintiff’s children often come home to
help with cleaning the house or yard work,
which plaintiff is unable to do. (Id. at 48-49.)
His wife and daughter clean up after dinner.
(Id. at 49-50.) At the hearing, the ALJ asked
plaintiff: “And you’re not, you’re, you’re just
allowing your wife and daughter to do the
chores. The cleaning up, you’re not able to
help at all?” (Id. at 51.) Plaintiff explained
that he is not able to help and said: “They
know, they understand.” (Id.) Plaintiff also
testified that he used to attend church, but he
can no longer sit through services. (Id. at 53.)
Plaintiff has been unable to visit his sister in
New Jersey for the past 4-5 years, nor has he
taken any vacations. (Id. at 53-54.)
Plaintiff filed this action seeking reversal
of the ALJ’s decision on November 18, 2015.
(ECF No. 1.) The Court received the
administrative record on March 17, 2016.
(ECF No. 7.) The Commissioner filed a
motion for judgment on the pleadings on June
15, 2016. (ECF No. 9.) Plaintiff filed a
cross-motion for judgment on the pleadings
on August 16, 2016. (ECF No. 12.) The
Commissioner replied on August 30, 2016,
and plaintiff replied on September 26, 2016.
(ECF Nos. 13, 15.) The Court has fully
considered the parties’ submissions.
When asked whether he would be able to
perform a job similar to the one he had at
Slomin’s were it offered to him, plaintiff
replied: “I, I used to, but now I, I know I
can’t.” (Id. at 54.) Plaintiff explained that
because of the injuries to his back, knee,
shoulder, and neck, he no longer can function
in a work environment without being
medicated, and that he is “choosing not to be
medicated.” (Id.) Although plaintiff had been
searching for a job since 2012, he had not
received any offers. (Id.)
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). Further, “it is up to the
agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
B. Procedural History
On October 12, 2012, Plaintiff filed an
application for disability insurance benefits,
alleging that he was disabled beginning on
July 6, 2012. (Id. at 61, 154-60.) On April 9,
2013, the claim was denied (id. at 61-69), and
plaintiff filed a request for a hearing on April
25, 2013 (id. at 87-88). Plaintiff testified at
the hearing, which took place on March 20,
2014. (Id. at 23-58.) During the hearing,
plaintiff attempted to amend the alleged onset
date to January 1, 2014, but the ALJ denied
the request. (Id. at 26.) The ALJ issued an
unfavorable decision denying plaintiff’s
9
ssioner] 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.
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
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.”).
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).
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Id.
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)).
The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. See 20
C.F.R. §§ 404.1520, 416.920. The Second
Circuit has summarized this procedure as
follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such an impairment, the [Commi-
B. The ALJ’s Decision
Here, the ALJ determined that plaintiff
met his burden in proving that he was not
presently employed at the time of the hearing
and suffered from “severe impairments,”
namely “degenerative disc disease of the
lumbar spine; left shoulder impingement
syndrome; and degenerative joint disease of
10
and lifting things as that term is not clearly
defined and is therefore too vague to be of
probative value.” (Id. at 14.)
the left knee.” (AR at 13.) The ALJ found
that these impairments did not, however, fall
under the list of impairments outlined in
Appendix 1 of the regulations. (Id.)
However, the ALJ accorded “[l]ittle
weight . . . to the March 20, 2013 through
February 12, 2014 opinion[s] of Dr. Enrico S.
Mango.” (Id. at 15.) Although Dr. Mango
“found a 100% total disability and an
inability to return to work,” the ALJ
determined that “[t]hese opinions were
offered within the context of a Workers’
Compensation claim, which focuses only
upon [plaintiff’s] ability to perform the
requirements of his last job,” and that “those
are opinions [that] are reserved to the
Commissioner . . . .” (Id.) The ALJ further
concluded that Dr. Mango’s “opinion that
[plaintiff] can sit only 1-2 hours in an 8-hour
workday . . . is not supported by the objective
findings and is contradicted by substantial
evidence in the record.” (Id.)
At the fourth step, the ALJ concluded that
plaintiff had “the residual functional capacity
to perform the full range of sedentary work as
defined in 20 CFR 404.1567(a) . . . .” (Id. at
14.) The ALJ based his decision, “in large
part, upon a Medical Source Statement of
Ability to do Work Related Activities
(Physical) by Dr. Robert L. Hecht, the
claimant’s treating orthopedic surgeon, dated
March 10, 2014, and the impression of Dr.
Samir Dutta, a physician who examined the
claimant for the [Commissioner] on April 1,
2013.” (Id. at 14 (citations omitted).)
Citing the Medical Source Statement, the
ALJ determined that plaintiff “can sit 6 hours
during an 8-hour workday, allowing for
normal breaks and lunch,” and that “based on
Dr. Hecht’s assessment, [plaintiff] can
perform the occasional standing and/or
walking (i.e., up to 2 hours) required to
perform sedentary work, as described in 20
CFR 404.1567(a).” (Id.) The ALJ gave great
weight to “that portion of Dr. Hecht’s
assessment regarding claimant’s ability to
stand for 2 hours and walk for 2 hours (less
than 1 hour at a time without interruption)
during an 8-hour workday,” but accorded
“[l]ittle weight . . . to that portion of the
treating doctor’s assessment, which limited
sitting to 3 hours during an 8-hour workday.”
(Id.) Moreover, the ALJ gave “[l]ittle weight
. . . to Dr. Hecht’s opinion in his report dated
March 10, 2014 . . . [w]here he stated that, the
claimant has been unable to work since July
of 2012” because that “is an opinion upon an
issue reserved to the Commissioner . . . .” (Id.
at 15.) In addition, the ALJ accorded
“[s]ignificant weight . . . to the opinion of Dr.
Dutta,” although the ALJ did not ascribe
“[g]reat weight . . . to Dr. Dutta’s opinion of
‘moderate’ limitation of standing, walking
With respect to plaintiff’s hearing
testimony, the ALJ found that plaintiff’s
“medically determinable impairments could
reasonably be expected to cause some of the
alleged symptoms,” but that his “statements
concerning the intensity, persistence and
limiting effects of these symptoms [were] not
persuasive” because they were “not
supported by the medical evidence in the
record and [were] inconsistent with his
testimony that he left his job as an event
coordinator because he was laid off and not
because his impairments prevented him from
performing the job.” (Id. at 17.) In addition,
the ALJ found that plaintiff “continues to
look for both full-time and part-time work
every day,” and that his “testimony that he
can only sit for 5-10 minutes at a time is not
credible . . . [g]iven his description of a fairly
broad range of daily activities . . . .” (Id.)
Having concluded that plaintiff retained
the residual functional capacity to perform
sedentary work, the ALJ found that plaintiff
11
could not perform his past relevant work as a
director of special events for a caterer or as a
general/regional manager and showroom
manager, but that plaintiff could perform his
past work as a telemarketer. (Id. at 18.)
Consequently, the ALJ determined that
plaintiff did not qualify for disability
benefits. (Id.)
has to be for at least continuing for a
year. Now, I did also have a problem
with the [date last injured], but I think
that we can go back a little bit further
in time.
(Id. at 26.) Plaintiff’s counsel responded,
“Okay, Judge.” (Id.) In his decision, the ALJ
said that plaintiff’s “representative again
requested that the onset date be amended to
January 6, 2014, the claimant’s 50th birthday,
which the [ALJ] again denied because of
durational considerations (i.e., whether the
impairment has lasted or can be expected to
last 12 months as required by 20 CFR 404.
1509).” (Id. at 17.)
C. Analysis
Plaintiff challenges the ALJ’s decision on
the following grounds: (1) that the ALJ
improperly denied plaintiff’s application to
amend his alleged onset date; (2) that the ALJ
failed to follow the treating physician rule;
and (3) that the ALJ’s conclusion that
plaintiff has the residual functional capacity
to perform sedentary work is not supported
by substantial evidence. 1 As set forth below,
the ALJ failed to provide good reasons for not
allowing plaintiff to amend his alleged onset
date and for not crediting plaintiff’s treating
physicians. Thus, remand is warranted, and
the Court need not, and does not, reach
plaintiff’s residual functional capacity
argument.
The regulation cited by the ALJ states
that “[u]nless [an] 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.” 20 C.F.R. § 404.1509.
Plaintiff contends that, contrary to the ALJ’s
determination, he could have satisfied that
criterion because Dr. Hecht’s March 10, 2014
Medical Source Statement opined that
plaintiff’s impairments were expected to last
for at least 12 subsequent consecutive
months. (Pl.’s Br., ECF No. 12-1, at 17.) In
addition, he asserts that he was prejudiced by
the ALJ’s decision because the amended
onset date coincided with his fiftieth
birthday, and under the relevant regulations,
classifying plaintiff as a fifty-year-old
“person closely approaching advanced age”
would direct a finding of disability by the
Commissioner. See 20 C.F.R. § 404.1563; 20
C.F.R. § 404 App’x 2, Rule 201.09.
1. Amendment of Alleged Onset Date
Plaintiff argues that the ALJ improperly
denied his counsel’s request to orally amend
his alleged onset date to January 6, 2014 at
the hearing. Plaintiff’s counsel stated that the
“basis of that amendment would be both
[plaintiff’s] 50th birthday and the medicals
that we have concerning the back.” (AR at
25-26.)
Without explanation, the ALJ
seemingly denied the request, stating:
In opposition, the Commissioner
contends that (1) plaintiff’s counsel
consented to the ALJ’s decision denying the
request to amend the onset date; and (2) in
If it’s—if you’re alleging his—he’s
been disabled as of January 1, 2014,
does not extend it—it’s not for a year
or more. Right? So the impairment
1
The Court concludes that substantial evidence
supports the AL’'s determinations with respect to the
other steps of the test for disability claims.
12
reasoning for denying the amendment
request. In his decision, he simply cited
“durational considerations,” which, as
plaintiff points out, are not supported by the
record. Accordingly, remand for further
findings is required. See Pratts v. Chater, 94
F.3d 34, 39 (2d Cir. 1996) (stating that
“[w]hen there are gaps in the administrative
record” or where “we are unable to fathom
the ALJ’s rationale in relation to the evidence
in the record without further findings or
clearer explanation for the decision,” remand
is appropriate).
any case, “[p]laintiff was not disadvantaged
by the ALJ’s decision to consider the entire
period starting from the original onset date.”
(Def.’s Reply Br., ECF No. 13, at 2.) The
Court rejects both arguments.
First, it is apparent from the ALJ’s
decision that plaintiff’s counsel did not
accede to the original onset date, but in fact
“again requested that the onset date be
amended to January 6, 2014,” which the ALJ
“again denied because of durational
considerations.” (AR at 17.) Further, it is
far from clear from the transcript of the
administrative hearing that the ALJ actually
denied the oral amendment request because
he merely stated that “the impairment has to
be for at least continuing for a year,” and that
although he had “a problem with the [date last
injured],” the ALJ thought that “we [could]
go back a little bit further in time.” (Id. at
26.) Because it is impossible to discern
whether this was an affirmative rejection of
the amendment request, plaintiff’s counsel’s
response of “Okay, Judge” (id.) cannot be
taken as an assent.
2. Opinion of the Treating Physician
The Commissioner must give special
evidentiary weight to the opinion of a treating
physician. See Clark, 143 F.3d at 118. The
“treating physician rule,” as it is known,
“mandates that the medical opinion of a
claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also, e.g., Rosa v. Callahan, 168 F.3d 72, 7879 (2d Cir. 1999); Clark, 143 F.3d at 118.
The rule as set forth in the regulations,
provides:
Second, contrary to the Commissioner’s
contention,
plaintiff
has
adequately
demonstrated that an amended onset date that
coincides with his fiftieth birthday would
bolster his claim based on the accompanying
classification as a “person closely
approaching advanced age.”
See, e.g.,
Stafford v. Astrue, 581 F. Supp. 2d 456, 460
(W.D.N.Y. 2008) (discussing the benefits of
such classification); Rodriguez v. Comm’r of
Soc. Sec., No. 15-CV-6596 (ALC), 2016 WL
5660410, at *8 (S.D.N.Y. Sept. 30, 2016)
(“The distinction between being classified as
a ‘younger person’ and being classified as a
‘person closely approaching advanced age’
can be dispositive in determining whether an
individual qualifies as disabled.”).
Generally, we give more weight to
opinions from your treating sources,
since these sources are likely to be the
medical professionals most able to
provide a detailed, longitudinal
picture
of
your
medical
impairment(s) and may bring a
unique perspective to the medical
evidence that cannot be obtained from
the objective medical findings alone
or from reports of individual
examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source’s opinion on the issue(s) of the
nature and severity of your
Finally, the Court agrees with plaintiff
that the ALJ failed to adequately set forth his
13
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.
(internal citation omitted)). Specifically,
“[a]n ALJ who refuses to accord controlling
weight to the medical opinion of a treating
physician must consider various ‘factors’ to
determine how much weight to give the
opinion.” Halloran v. Barnhart, 362 F.3d 28,
32 (2d Cir. 2004) (citing 20 C.F.R.
§ 404.1527(d)(2)). 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, 177 F.3d at
133.
20 C.F.R. § 404.1527(c)(2).
Although
treating physicians may share their opinions
concerning a patient’s inability to work and
the severity of the disability, the ultimate
decision of whether an individual is disabled
is “reserved to the Commissioner.” Id.
§ 404.1527(d)(1); see also Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999) (“[T]he Social
Security Administration considers the data
that physicians provide but draws its own
conclusions as to whether those data indicate
disability.”).
When an ALJ decides that the opinion of
a treating physician should not be given
controlling weight, she must “give good
reasons in [the] notice of determination or
decision for the weight [she] gives [the
claimant’s] treating source’s opinion.” 20
C.F.R. § 404.1527(c)(2); see also Perez v.
Astrue, No. 07-CV-958 (DLJ), 2009 WL
2496585, at *8 (E.D.N.Y. Aug. 14, 2009)
(“Even if [the treating physician’s] opinions
do not merit controlling weight, the ALJ must
explain what weight she gave those opinions
and must articulate good reasons for not
crediting the opinions of a claimant’s treating
physician.”); Santiago v. Barnhart, 441 F.
Supp. 2d 620, 627 (S.D.N.Y. 2006) (“Even if
the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating source
is inherently more familiar with a claimant’s
medical condition than are other sources.”
The ALJ here violated the treating
physician rule. With regard to Dr. Mango,
who had consistently treated plaintiff since
July 2010, 2 the ALJ gave “[v]ery little
weight” to his opinions of “100% total
disability and an inability to return to work”
because the “doctor’s focus—within the
context of a Workers’ Compensation claim—
was on the claimant’s past relevant work as
an events coordinator/director of special
events for a country club caterer, which was
light work requiring a great deal of standing
and/or walking; a good deal of climbing and
stooping and lifting/carrying 10-20 pounds.”
(AR at 17.)
The ALJ gave “[s]ome
weight . . . to that portion of Dr. Mango’s
assessment of March 12, 2014, which
indicated that the claimant, in an 8-hour
workday, could stand 1-2 hours and walk 1-2
hours due to severe left knee impairment,”
2
Accordingly, Dr. Mango was the “medical
professional[] most able to provide a detailed,
longitudinal picture of [plaintiff’s] medical
impairment(s)
and
[brought]
a
unique
perspective to the medical evidence . . . .” 20
C.F.R. § 404.1527(c)(2).
14
that characterization, the ALJ was required to
review the entire record to independently
determine whether the disability findings by
Drs. Mango and Hecht were accurate.
but he accorded Dr. Mango’s conclusion that
plaintiff can sit only 1-2 hours in an 8-hour
workday “[l]ittle weight . . . as it is
unsupported by objective medical evidence
[and] inconsistent with other substantial
medical evidence in the record . . . .” (Id. at
15, 18.) Finally, the ALJ stated that Dr.
Mango’s disability determination concerned
a matter that was reserved to the
Commissioner. (Id. at 15.)
In addition, the Second Circuit has made
clear that “ALJs should not rely heavily on
the findings of consultative physicians after a
single examination.” Selian, 708 F.3d at 419.
In Selian, the ALJ rejected the treating
physician’s diagnosis based in part on the
opinion of another physician who “performed
only one consultative examination.” Id. The
Court held that, in doing so, the ALJ failed
“to provide ‘good reasons’ for not crediting
[the treating physician’s] diagnosis,” and that
failure “by itself warrant[ed] remand.” Id.;
see also Cruz v. Sullivan, 912 F.2d 8, 13 (2d
Cir. 1990) (“[A] consulting physician’s
opinions or report should be given limited
weight . . . because consultative exams are
often brief, are generally performed without
benefit or review of claimant’s medical
history and, at best, only give a glimpse of the
claimant on a single day.”); Santiago, 441 F.
Supp. 2d at 628 (holding that ALJ erred in
giving consulting physicians’ opinions
controlling weight over those of the treating
physicians). By crediting the opinions of the
consulting physician over those of the
treating physicians, the ALJ here committed
the same error as the ALJ in Selian, given the
absence of other substantial evidence to
corroborate those opinions. 708 F.3d at 419;
see also Cruz, 912 F.2d at 13; Santiago, 441
F. Supp. 2d at 628.
In addition, the ALJ selectively accorded
some aspects of Dr. Hecht’s opinion great
weight and others little weight. He gave great
weight to “that portion of Dr. Hecht’s
assessment regarding claimant’s ability to
stand for 2 hours and walk for 2 hours (less
than 1 hour at a time without interruption)
during an 8-hour workday,” but little weight
to “that portion of the treating doctor’s
assessment, which limited sitting to 3 hours
during an 8-hour workday,” as well as to “Dr.
Hecht’s opinion in his report dated March 10,
2014 . . . [w]here he stated that [plaintiff] has
been unable to work since July of 2012.” (Id.
at 14-15.)
Instead, the ALJ gave
“[s]ignificant weight” to the opinion of
consulting physician Dr. Dutta, who only
saw plaintiff once. (Id. at 14.)
The Court concludes that the ALJ failed
to provide “good reasons” for rejecting the
opinions of the treating physicians. Snell,
177 F.3d at 133. The first ground on which
the ALJ relied in refusing to credit the
opinions of Drs. Mango and Hecht was their
determination that plaintiff was completely
disabled. However, while “the ultimate
finding of whether a claimant is disabled and
cannot work . . . [is] ‘reserved to the
Commissioner,’” that simply “means that the
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.” Snell, 177 F.3d at 133
(quoting 42 C.F.R. § 404.1527(e)(1)).
Accordingly, rather than merely rejecting
Moreover, both Dr. Hecht’s and Dr.
Mango’s opinions are consistent with the
medical record. Dr. Hecht opined that
plaintiff could only sit for up to 2 hours at a
time, for a total of 3 hours in an 8-hour
workday. (AR at 331.) Similarly, Dr. Mango
stated that plaintiff was “very limited” in his
ability to sit, amounting to 1-2 hours in an 8hour workday. (Id. at 378.) Additionally, Dr.
Hecht determined that plaintiff had
15
significant limitations to his thoracolumbar
range of motion with flexion to 60 degrees
(normal is 90); extension to 10 degrees
(normal is 30); left lateral flexion to 10
degrees (normal is 30); left lateral rotation to
20 degrees (normal is 30); right lateral
flexion to 10 degrees (normal is 20); and right
lateral rotation to 10 degrees (normal is 30).
(Id. at 337.) Likewise, Dr. Mango noted
lumbar pain with spasms and decreased
lumbar range of motion (id. at 248-52, 256),
and Dr. Farakh, plaintiff’s treating orthopedic
surgeon, diagnosed chronic lumbar pain and
limited range of motion (id. at 370, 372). The
treating doctors’ findings are also consistent
with the lumbar MRI, which showed a central
disc herniation at L5-S1 effacing the ventral
thecal sac. (Id. at 369.) Notwithstanding this
corroboration, the ALJ improperly chose to
credit those portions of the treating
physicians’ opinions that supported his
determination and to discount those that did
not, without sufficient explanation. See, e.g.,
Molina v. Colvin, No. 13-CV-4989 AJP,
2014 WL 3445335, at *17 (S.D.N.Y. July 15,
2014) (“This inconsistent use of Dr.
Mescon’s opinion, without any explanation
by ALJ Borda, is insufficient to support his
physical residual functional capacity
assessment that [the plaintiff] could perform
light work.”); Beck v. Colvin, No. 13-CV6014, 2014 WL 1837611, at *13 (W.D.N.Y.
May 8, 2014) (“The ALJ improperly cherrypicked from [that doctor’s] opinions only the
information that purportedly favors a finding
of no disability.”); Tim v. Colvin, No. 12-CV1761, 2014 WL 838080, at *7 (N.D.N.Y.
Mar. 4, 2014) (“[A]n administrative law
judge may not ‘cherry-pick’ medical
opinions that support his or her opinion while
ignoring opinions that do not.”). 3
3
assessing that he expected plaintiff’s disability to
persist (id. at 335, 337), as well as Dr. Mango’s March
12, 2014 report stating that plaintiff could not work
due to total disability (id. at 377-78).
Finally, the ALJ’s invocation of
plaintiff’s “Workers’ Compensation claim”
as a basis for according little weight to Dr.
Mango’s claim was not sufficient to support
his decision. (AR at 15.) Although the Court
agrees
that “an opinion rendered for
purposes of workers’ compensation is not
binding on the” Commissioner, see, e.g.,
Rosado v. Shalala, 868 F. Supp. 471, 473
(E.D.N.Y. 1994) (citing Coria v. Heckler,
750 F.2d 245, 247 (3d Cir. 1984), that does
not countenance the ALJ’s sweeping decision
to afford little weight to all of Dr. Mango’s
opinions from March 20, 2013 to February
12, 2014.
As with the disability
determination, even though those findings
regarding a Workers’ Compensation claim
were not dispositive, the ALJ was still
required to consider the various factors
discussed above in determining how much
weight to give each of Dr. Mango’s
assessments, and give specific reasons for
affording little weight to those assessments.
See Halloran, 362 F.3d at 32 (citing 20
C.F.R. § 404.1527(d)(2)). He did not do so
in his decision.
In short, the ALJ failed to provide “good
reasons” for rejecting the treating physicians’
opinions. Snell, 177 F.3d at 133. That failure
“by itself warrants remand.” Selian, 708 F.3d
at 419. 4
In particular, the ALJ’s citation of a “report dated
June 27, 2013” in which “Dr. Mango stated that a
series of Hyalgan injections worked very well and
provided 6 months of relief and his assessment of the
degree of the claimant’s disability was lowered to
50%” as an example of “inconsistent evidence” (AR at
15-16) is another example of “cherry-picking”
because that report pre-dated the hearing by
approximately nine months and was followed by Dr.
Hecht’s March 10, 2014 Medical Source Statement
4
Accordingly, the Court need not, and does not,
address plaintiff’s argument that the ALJ’s decision
was not supported by substantial evidence.
16
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. 5
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 9, 2017
Central Islip, NY
***
Plaintiff is represented by John W. DeHaan
of The DeHaan Law Firm P.C., 300 Rabro
Drive East, Suite 101, Hauppauge, New York
11788. The Commissioner is represented by
Joseph A. Marutollo, Assistant United States
Attorney, on behalf of Robert L. Capers,
United States Attorney for the Eastern
District of New York, 271 Cadman Plaza
East, 7th Floor, Brooklyn, New York, 11201.
5
Although plaintiff has requested that the Court order
this action to be re-assigned to another ALJ upon
remand (see Pl.’s Br. at 25), the Court finds that
plaintiff has failed to show that the ALJ’s conduct in
this action “gives rise to serious concerns about the
fundamental fairness of the disability review process
. . . .” Sutherland v. Barnhart, 322 F. Supp. 2d 282,
292 (E.D.N.Y. 2004). Accordingly, the Court leaves
re-assignment to the Commissioner’s discretion.
17
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