Carlsen v. Colvin

Filing 20

ORDER denying 11 Motion for Judgment on the Pleadings; denying 18 Motion for Judgment on the Pleadings. For the reasons set forth herein, the Court denies plaintiff's motion for judgment on the pleadings and the Commissioner's cross-motion for judgment on the pleadings. 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 9/19/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-3538 (JFB)
_____________________

CHARLES CARLSEN,
Plaintiff,
VERSUS

NANCY A. BERRYHILL 1,
ACTING COMMISSIONER OF SOCIAL SECURITY
Defendant.
___________________
MEMORANDUM AND ORDER
September 19, 2017
___________________

JOSEPH F. BIANCO, District Judge:

Court on March 5, 2013, and on September
11, 2014, the case was remanded by the
Honorable Joanna Seybert, United States
District Judge.
See Carlsen v. Colvin
(“Carlsen I”), No. 13-CV-1164 JS, 2014 WL
4536728 (E.D.N.Y. Sept. 11, 2014). The
Court found that the ALJ (1) failed to assign
any weight to the medical opinion of
plaintiff’s treating physician, Dr. Carlson,
and (2) failed to “consider[] the effects of
Plaintiff’s obesity, if any, in conjunction with
Plaintiff’s ankle impairment at the various
steps of the evaluation process.” Id. at *7-10.

Plaintiff Charles Carlsen (“plaintiff”)
commenced this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“SSA”)
challenging the final decision of the acting
Commissioner of Social Security (the
“Commissioner”)
denying
plaintiff’s
application for retroactive disability
insurance benefits for the time between June
24, 2008 and March 6, 2013. Following an
April 2011 hearing before an Administrative
Law Judge (“ALJ”) and an adverse decision
by the ALJ, plaintiff first appealed to this
1

Plaintiff commenced this action against Carolyn W.
Colvin, who was then the Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court is directed to
substitute Nancy A. Berryhill, who now occupies that
position, as defendant in this action.

1

Upon remand, the ALJ determined,
following a June 2015 hearing, that plaintiff
was not disabled during the relevant period
after finding that plaintiff had the residual
functional capacity to perform the full range
of light work, for which there were a
significant number of jobs in the national
economy. The Appeals Court denied
plaintiff’s request for review, and plaintiff
commenced the instant action.

testified that he could not find a new job
because his ankle precluded him from
meeting the physical requirements. (Id. at 5152.)
2. Plaintiff’s
Activities

Claimed

Injuries

and

At the April 2011 ALJ hearing, plaintiff
testified that he felt constant pain in his left
ankle arising from a broken ankle; following
three surgeries, he now had a plate. (Id. at 5556.) He testified to pain in his left shoulder
due to a dislocation before 2008, after which
accident, despite the shoulder pain, he had
continued to work. (Id. at 56-57.) He agreed
that his shoulder was “not much” of a bother.
(Id. at 57.) Later, he also stated that he has
pain in his knee when he walks too much. (Id.
at 59.) He also testified that he had pain in his
hands when it was damp due to arthritis; he
stated that they would swell and he was
unable to handle and grasp well. (Id. at 60.)
He further stated that he has difficulty sitting
due to soreness supposedly arising from
blood in his spinal fluid. (Id. at 64.)

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 plaintiff’s motion for judgment on the
pleadings, denies the Commissioner’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. Factual Background

At the April 2011 ALJ hearing, plaintiff
also testified that he took Vicodin four times
daily for pain in his left ankle (id. at 65),
which helped him “function” and “took the
edge off” (id. at 74). He had stomach
problems as a side effect of the Vicodin. (Id.
at 65.) The pain, which was located in his left
leg, was 6/10 in terms of intensity. (Id. at 74.)
He wore no back or knee brace, only a left
foot/ankle brace. (Id. at 59, 65, 73.) He stated
that he had been prescribed a cane. (Id. at 55.)
He had not undergone surgery on his neck,
shoulders, back, or hands. (Id. at 84.)

The following summary of the relevant
facts is based on the Administrative Record
(“AR”) developed by the ALJ. (ECF No. 10.)
1. Personal and Work History
Plaintiff worked as a tractor-trailer driver
from 1981 to April 20, 2008. (AR at 155.) In
that job, he used skills and technical
knowledge. (Id. at 156.) He spent 8 hours per
day handling large objects, but lifted less than
10 pounds. (Id.)
At the April 2011 ALJ hearing, plaintiff
testified that he had been a truck driver for 15
years preceding 2008. (Id. at 66.) However,
he said that he had left his job on or around
April 15, 2008, because his employer’s
warehouse had closed. (Id. at 51.) He
obtained unemployment benefits and

Plaintiff further testified that he was
unable to stand for “any length of time” (id.
at 54, 76), which he clarified meant more than
10 or 15 minutes (id. at 54). He testified to
being unable to walk for “any length of time,”
which meant more than 20 to 40 minutes. (Id.
2

344-45.) The VE testified that this job
required the residual functional capacity
(“RFC”) to perform medium work, even in
the manner plaintiff had testified to
performing it (such as lifting no more than 10
pounds), because there could have been times
when he had been required to readjust the
load or check air pressure. (Id. at 345.)

at 54-55.) He could sit for about a half-hour
before he had to move. (Id. at 64.) He
admitted that he could carry up to 30 pounds,
and when his arthritis was acting up, he could
carry up to 10 pounds. (Id. at 62-63.) He
testified that he had no difficulty reaching.
(Id. at 62.) He testified that he was able to
open doors, hold cups of coffee, eat with a
fork and knife, and open drawers. (Id. at 71.)
He could squeeze toothpaste and use an
electronic can opener. (Id. at 64.)

The ALJ then asked the VE if there were
any jobs a hypothetical individual could
perform who had the same age, educational
background, and work history as plaintiff,
with the proviso that plaintiff be restricted to
lifting and carrying 20 pounds occasionally
and 10 pounds frequently; standing and
walking 6 hours out of an 8-hour day; sitting
7 hours out of an 8-hour day with normal
breaks; frequently pushing/pulling with the
upper extremities; frequently climbing
ramps/stairs, balancing, stooping, kneeling,
crouching; occasionally pushing and pulling
with lower extremities; occasionally
crawling and overhead reaching with the left
upper extremity; and no climbing
ladders/scaffolds or exposure to unprotected
heights and moving machinery. (Id. at 34546.) The VE testified that, during the relevant
period, plaintiff could have performed six
jobs, all requiring the RFC for light work. (Id.
at 345-50.) Three of them were for SVP of 2,
i.e., unskilled work: (1) electrical equipment
assembler, DOT code 729.687-010 (5,208
jobs in the national economy); (2) mail clerk,
DOT code 209.687-026 (2,481 jobs in the
national economy); and (3) office helper,
DOT code 239.567-010 (3,588 jobs in the
national economy). (See id. at 348-49.)

At the April 11 hearing, plaintiff also
testified that he could shower, comb his hair,
shave, and dress, including doing his belt,
zippers, and coat buttons. (Id. at 68.) When
his hands are swollen, he tries to avoid
buttons. (Id. at 62.) He had trouble with socks
because of his ankle. (Id. at 76.) He was able
to do laundry, with assistance (Id. at 69.) He
was able to take out the garbage. (Id. at 70.)
Plaintiff was able to lift 30 pounds of
groceries. (Id. at 62.) He admitted to being
able to drive locally, such as to the store or to
a friend’s house. (Id. at 72.) He admitted that
he could go to: a restaurant (id. at 72); the
movies (id. at 71); the barber (id. at 68); an
ATM (id. at 70); a bank (id. at 71); and the
post office. (Id. at 70.) He did not know how
to use a computer. (Id. at 72.)
Plaintiff did not testify to other subjective
complaints or limitations at the June 9, 2015
ALJ hearing or otherwise supplement the
above testimony. (See generally id. at 32953.)
3. Testimony of the Vocational Expert
Vocational Expert (“VE”) Espironza
Destefano testified at the June 2015 ALJ
hearing that plaintiff’s past relevant work
could best be described as tractor-trailer
driver, U.S. Department of Labor’s
Dictionary of Case Occupational Titles
(“DOT”) code 904.383-010, with a specific
vocational preparation (“SVP”) of 4. (Id. at

An additional three such jobs had an SVP
of 3 or 4, based on transferable skills that the
VE testified that plaintiff had earned in his
past relevant work: knowledge of how to load
items, ability to check the load and manage
his own time, critical thinking skills to
identify problems, understanding of written
information, and communication skills
3

earlier. (Id. at 185.) X-rays of the left ankle
reportedly revealed four intact screws from
his prior surgeries. (Id. at 185.) Dr. Fracchia
noted an old non-union fracture, but no acute
fractures or dislocations; the ankle joint was
completely fused. (Id.) Dr. Fracchia
diagnosed left ankle osteoarthritis, status post
fusion. (Id.) Dr. Fracchia recommended
conservative treatment such as ice, elevation,
and anti-inflammatory medication as needed.
(Id.) Dr. Fracchia advised plaintiff to bear
weight as tolerated. (Id.)

necessary in talking to others to convey
information effectively. (Id. at 347-48).
These three additional jobs that plaintiff
could have performed during the relevant
period were: (1) loading inspector, DOT code
910.667-018 (504 jobs in the national
economy); (2) perishable freight inspector,
DOT code 910.667.022 (457 jobs in the
national economy); and (3) shipping clerk,
DOT code 219.367-030 (20,911 jobs in the
national economy). (Id. at 346-48.) In
response to plaintiff’s counsel’s inquiry as to
whether the ability to communicate and use
logic and reasoning were skills plaintiff
would have acquired from his past work
experience, the VE responded in the
affirmative. (Id. at 349-52.)

On August 14, 2008, plaintiff returned to
Dr. Fracchia. (Id. at 183.) Plaintiff reported
some improvement in pain level. (Id.) He
reported taking Naproxen for about one
week, but he had not purchased the rocker
bottom shoe that had been prescribed. (Id.)
Physical examination results were essentially
unchanged, with limited range of motion;
there were no signs of erythema, warmth, or
discharge. (Id.) Dr. Fracchia noted that
plaintiff declined to purchase the orthopedic
shoe and would return on an as-needed basis.
(Id.)

4. Medical History
a. From June 24, 2008 to March 6,
2013
On July 7, 2008, plaintiff saw orthopedist
Michael J. Fracchia, M.D., at Long Island
Bone and Joint, for left ankle pain. (Id. at
184-85.) Plaintiff reported pain since June
24, 2008, when he twisted his ankle getting
out of a truck. (Id. at 184.) Plaintiff reported
that he had fractured his left ankle in 1984,
undergoing three surgeries, most recently a
fusion in 1991, since which he had
experienced almost no pain. (Id.) The only
other medical history reported was
hypertension for which plaintiff was taking
an anti-hypertensive, the name of which he
could not recall. (Id.) On examination, Dr.
Fracchia found that plaintiff was 5 feet 8
inches and 280 pounds. (Id.) He had diffuse
swelling of the left ankle, but no bruises,
erythema, warmth, or discharge, and no
eversion or inversion. (Id.) The range of
motion in plaintiff’s ankle was limited, and it
was tender to palpation. (Id. at 184-85.)
There was decreased sensation on the top of
his foot and the front of his ankle, which
plaintiff stated was unchanged from years

On June 2, 2009, plaintiff saw Natalya
Laskina, PA, at Middle Country Medical
Care, for the purpose of a physical
examination required for his Department of
Transit certification to drive a truck. (Id. at
191, 279-80.) PA Laskina noted plaintiff’s
history of left-ankle reconstruction and
shoulder sprain. (Id. at 280.) She found that
plaintiff’s blood pressure was 150/98.5. (Id.)
She found that his height was 5 feet 8 inches
and his weight was 257 pounds. (Id.) On the
same day, PA Laskina completed a Medical
Examination Report for Commercial Driver
Fitness Determination, noting that high blood
pressure was the only significant medical
finding, and indicating that, medically,
plaintiff was qualified to drive for one year.
(Id. at 200-03, 281-84.) PA Laskina
specifically checked off “no” on the boxes
asking whether there were any: vascular
4

Plaintiff returned to Dr. Carlson on
March 11, 2010. (Id. at 216.) Based on the
results of a recent blood test, Dr. Carlson
noted that plaintiff had non-insulin dependent
diabetes. (Id. at 216, 218-22.) Plaintiff’s
blood pressure at the time was 128/80. (Id. at
216.) A physical examination was otherwise
unremarkable, and Dr. Carlson advised
plaintiff to reduce his intake of
carbohydrates. (Id.)

irregularity; musculoskeletal problems, such
as limitation of motion and tenderness; or
limb impairments, such as impairment of leg
or foot, perceptible limp, atrophy, weakness,
clubbing, edema, or insufficient mobility and
strength or grasp, either to maintain steering
or to operate pedals. (Id. at 202.) She also
checked off “no” on the questionnaire as to:
chronic low back pain; impaired hand, arm,
foot, leg, finger, or toe; diabetes; and heart
disease. (Id. at 200.)

On March 16, 2010, plaintiff saw
Svetlana Ilizarov, M.D., an orthopedist
affiliated with Stony Brook Hospital, for his
ankle pain. (Id. at 494.) Dr. Ilizarov ordered
x-rays of plaintiff’s left ankle, which revealed
that plaintiff was status-post ankle surgery,
with a non-united middle third fibular shaft
fracture. (Id. at 224.) Dr. Illizarov advised
plaintiff to use heel lifts, and referred him to
Steven P. Sampson, M.D., to evaluate him for
possible surgery. (Id. at 494.)

On June 15, 2009, plaintiff went to the
emergency room of John T. Mather
Memorial Hospital, complaining of pain and
decreased range of motion in his right
shoulder. (Id. at 205-11.) Plaintiff reported
that the symptoms began the night before and
that he had not experienced similar
symptoms previously. (Id. at 207.) On
examination, plaintiff had tenderness, pain,
and limited range of motion in his right
shoulder; there was normal circulation, pulse,
and perfusion. (Id.) All other joints were
normal, and physical examination was
otherwise unremarkable (Id.) The examiner
ordered an x-ray of plaintiff’s right shoulder,
which was negative. (Id. at 210.) The
examiner diagnosed a rotator cuff sprain and
tendonitis, splinted the shoulder, and
prescribed Toradol and Naprosyn. (Id. at
208.)

On April 1, 2010, plaintiff returned to Dr.
Carlson to discuss his ankle and his blood
pressure medication. (Id. at 215, 274.)
Plaintiff stated that his current pain
medication was not helping. (Id.) Neurologic
examination showed no focal findings,
musculoskeletal examination showed no
compartment syndrome, and cardiovascular
examination showed normal rate and regular
rhythm. (Id.) Blood pressure was 132/68.
(Id.) Dr. Carlson prescribed Vicodin in
addition to refilling blood pressure
medication. (Id.)

On February 5, 2010, plaintiff saw James
E. Carlson, D.O., a primary care physician,
for an upper respiratory infection, blood
pressure check, and left ankle pain. (Id. at
217; see id. at 265.) On physical examination,
plaintiff’s heart rate was normal and rhythm
was regular, there was no compartment
syndrome musculoskeletally, deep tendon
reflexes in knees and ankles were equal
bilaterally, and sensory examination was
intact to light touch distally. (Id.) Dr. Carlson
advised plaintiff to continue with his current
blood pressure medication. (Id.)

On April 5, 2010, plaintiff saw Dr.
Sampson for his ankle pain, which had
worsened over the prior three months. (Id. at
225.) Dr. Sampson noted that plaintiff was
status/post tibiotaler fusion 25 years
previously. (Id.) On examination, Dr.
Sampson found that plaintiff was overweight,
walked with an antalgic gait, and had ankle
joint tenderness. (Id.) There was no crepitus
or
instability.
(Id.)
Dr.
Sampson
5

at 228.) Dr. Acer opined that plaintiff could
follow and understand directions and
instructions, appropriately perform tasks,
maintain attention and concentration at least
on a short-term basis, maintain a regular
schedule, learn new tasks, perform complex
tasks independently, adequately relate with
others, and deal with stress. (Id. at 230.) She
opined that her findings were not consistent
with severe cognitive issues hindering
functioning. (Id.)

recommended a silicone ankle foot orthosis
(ankle brace). (Id.) After receiving the brace,
plaintiff returned to Dr. Sampson on June 8,
2010, and there were no significant findings.
(Id. at 226.)
On June 9, 2010, plaintiff was
consultatively examined by psychologist
Kathleen Acer, Ph.D. (Id. at 227-30.)
Plaintiff complained of memory and
concentration difficulties, such as forgetting
to do things, and difficulty falling asleep. (Id.
at 227.) He denied symptoms of formal
thought, major depressive, or anxiety-related
disorder. (Id.) He had never been evaluated
or treated for cognitive or emotional
problems. (Id.) Plaintiff stated he has a GED
and was a truck driver until he was laid off in
2008, and now could not work due to chronic
left leg pain. (Id.) He took Lisinopril and
Vicodin as needed. (Id.) Plaintiff reported
that he was able to bathe, dress, and groom
himself; cook; shop; and drive. (Id. at 228.)
He stated that he needed help managing his
finances because he would forget to pay his
bills. (Id.) He reported limited socialization,
but good relationships with family. (Id. at
228-29.) He stated that he spent his days
driving his daughter to and from school,
watching television, and running errands. (Id.
at 229.) On mental status examination,
plaintiff had a socially skilled manner, and
his posture and eye contact were normal;
thought processes were coherent and goaldirected; affect was full range; mood was
euthymic; sensorium was clear; attention and
concentration were intact and plaintiff was
able to calculate and count serial 3s; his
recent and remote memorial skills were
intact; he could recall three of three objects
and seven digits forward and five digits back
after a five-minute delay; his intellectual
skills were average; general fund of
information was appropriate to experience;
his insight and judgment were good; and his
speech was fluent and clear, with adequate
expressive and receptive language skills. (Id.

On June 9, 2010, the same date, plaintiff
was also consultatively examined by internist
Ammaji Manyam, M.D. (Id. at 231-34.)
Plaintiff complained of two months of
throbbing left leg pain. (Id. at 231.) He
reported a history of a 1984 motor vehicle
accident that shattered his left ankle, with
repeated ankle injuries and repair in 1988 and
1996, resulting in a plate in his left ankle.
(Id.) He reported hypertension. (Id.) He took
Vicodin four times a day and Lisinopril as
needed. (Id.) He cooked, cleaned, did
laundry, shopped, showered, bathed, dressed,
and drove a car. (Id. at 232.) He was 260
pounds and 5 feet and 8 inches. (Id.) On
examination, Dr. Manyam noted that,
without his ankle brace, plaintiff dragged his
left leg. (Id.) With the brace, the dragging
was mildly corrected, and Dr. Manyam
recommended continued use of the brace.
(Id.) Plaintiff could walk on his heels and
toes, with some difficulty. (Id.) He could
perform a three-quarters squat, had a normal
stance, and used no assistive devices such as
a cane. (Id.) He needed no help changing for
the examination or getting on and off the
examination table. (Id.) He was able to rise
from a chair without difficulty. Plaintiff’s
blood pressure was 136/80. (Id.) He had no
jugular venous distension of the neck or
bruits. (Id. at 233.) Percussion was normal
and chest was clear to auscultation. (Id.)
Cervical and lumbar spine had full flexion,
extension, and rotary movement. (Id.)
Plaintiff had full range of motion—
6

plaintiff since February 2010 every 2-3
months. (Id. at 265.) He diagnosed left ankle
fracture status-post reconstructive surgery
with guarded prognosis, and, for “clinical
findings,” noted “hardware” in plaintiff’s left
ankle, and, for “diagnostic findings,” noted
“x-ray.” (Id. at 265-66.) He stated that any
motion precipitates daily pain in the left ankle
at 8-9/10 on a pain scale. (Id. at 267.) He
further asserted that plaintiff was taking
Vicodin as needed and did not identify any
side effects. (Id. at 269.) Dr. Carlson opined
that plaintiff: could sit and stand/walk for no
more than one hour each in an 8-hour
workday (id. at 267); could not sit or stand
continuously in a work setting, and would
need to get up and move around every half
hour (id. at 267-68); and could lift and carry
up to 10 pounds on an occasional basis (id. at
268). Dr. Carlson opined that plaintiff: had
arthritis in both hands and, therefore, would
have moderate limitations in grasping,
turning, twisting, fine manipulations,
fingering, handling, and reaching (id. at 26869); was completely unable to push, pull,
kneel, bend, or stoop; and had to avoid
wetness, noise, fumes, gases, temperature
extremes, humidity, dust, and heights (id. at
271). He added that plaintiff also had limited
vision. (Id.) Dr. Carlson further opined that
plaintiff’s pain, fatigue, or other symptoms
would interfere with his attention and
concentration on a constant basis. (Id. at
270.) Dr. Carlson also stated that plaintiff’s
impairment would interfere with his ability to
keep his neck in a constant position. (Id. at
269.) He stated that plaintiff’s symptoms and
limitations had existed since March or April
of 1984. (Id. at 271.)

bilaterally—of the shoulders, elbows,
forearms, wrists, knees, and ankles. (Id.)
Hand and finger dexterity was intact and grip
strength was 5/5 bilaterally. (Id.) All joints
were stable and non-tender, and there was no
redness, heat, swelling, or effusion; and there
was no thickening, ankyloses, or subluxation.
(Id.) Deep tendon reflexes were physiologic
and equal in upper and lower extremities.
(Id.) There was no sensory deficit. (Id.)
Strength was 5/5 in upper and lower
extremities. (Id.) There was edema of the
extremities. (Id.) No muscle atrophy of the
extremities was evident. (Id.) As to the left
foot, there was a slight irregularity because of
the hardware inside, and scarring, as well as
a varus deformity. (Id.) Dr. Manyam
diagnosed hypertension and left leg pain
secondary to old injuries and to old healed
fractures with intact hardware. (Id. at 234.)
He opined that plaintiff had no limitations for
physical activities. (Id.)
On July 14, 2010, plaintiff followed up
with Dr. Carlson for diabetes and left leg
pain. (Id. at 275.) Plaintiff was wearing his
ankle brace and complaining of increased
pain in his left leg. (Id.) A physical
examination, including of plaintiff’s
musculoskeletal and neurological systems,
was unremarkable. (Id.) Plaintiff was
instructed to continue Lisinoprol and
Vicodin, and to check his glucose with strips.
(Id.) On August 31, 2010, plaintiff returned
to Dr. Carlson complaining of severe ankle
pain. (Id.) Plaintiff’s left ankle was tender
and swollen, as compared to the right; the
examination was otherwise unremarkable.
(Id. at 276.) On October 1, 2010, plaintiff
followed up for low vitamin B12 and was
given a B12 shot; physical examination was
again unremarkable. (Id. at 278.)

On September 20, 2011, plaintiff was
examined by orthopedist Leon Sultan, M.D.,
at the request of his attorney. (Id. at 294-95.)
Plaintiff complained of chronic pain and
swelling of his left ankle, and a limp for
which he used a brace while walking. (Id. at
294.) Plaintiff reported an ankle fracture in

On March 24, 2011, Dr. Carlson
completed
a
Multiple
Impairment
Questionnaire. (Id. at 265-72.) Therein, Dr.
Carlson noted that he had been treating
7

month from work. (Id. at 291.) Dr. Sultan
opined that the earliest date that the
description of symptoms and limitations
applied was 1984. (Id.)

1984, and multiple surgeries in the 1980s to
reconstruct his ankle. (Id.) He was prescribed
an ankle brace in April 2010. (Id.) He
reported being laid off in 2008. (Id.) Plaintiff
reported taking Vicodin and Lisonopril. (Id.
at 295.) On examination, Dr. Sultan observed
that plaintiff favored his left lower extremity
when he walked without his ankle brace. (Id.)
His left leg was one-quarter inch shorter and
his left calf had significant atrophy. (Id.) His
ankle was frozen at approximately 20 degrees
of plantar flexion, secondary to the ankle
fusion. (Id.) Sensory testing of his left foot
and ankle was intact. (Id.) Dr. Sultan opined
that plaintiff had a permanent disability
caused by the 1984 fracture that “interferes
with” walking, prolonged standing, heavy
lifting, carrying, squatting, stopping, and
crawling. (Id.) He was unable to engage in
gainful employment. (Id.) Dr. Sultan
recommended that plaintiff lose weight. (Id.)

On January 3, 2012, plaintiff saw Antoun
Mitromaras, M.D., from North Shore
Immediate Medical Care, complaining of left
ankle and left shoulder pain. (Id. at 520.)
Plaintiff reported surgery 20 years previously
to reconstruct his ankle. (Id.) On
examination, there was decreased range of
motion of the left shoulder and a click; there
were normal findings as to his buttocks,
thigh, knee, calf/shin, ankle, foot and toes
bilaterally and normal gait, normal motor
strength, normal sensation, and intact deep
tendon reflexes. (Id.) Dr. Mitromaras ordered
left shoulder radiology. (Id. at 519.) On
January 10, 2012, plaintiff saw Dr.
Mitromaras, complaining of left shoulder
pain. (Id. at 518.) On examination, there was
a decreased range of motion and click of the
left shoulder; his hands, upper arm, elbow,
wrist, hand, and fingers were within normal
limits; and he had a normal gait, normal
motor strength, normal fine motor, and
normal sensation. (Id.) X-rays of the left
shoulder revealed mild degenerative
changes; there was no fracture or dislocation.
(Id. at 516; see also id. at 518.) Dr.
Mitromaras
prescribed
Vicodin
and
Lisinopril. (Id. at 517.)

On the same date, Dr. Sultan completed a
Multiple Impairment Questionnaire about
plaintiff’s functional abilities. (Id. at 285-93.)
Dr. Sultan listed the primary symptoms as
daily pain and swelling in the left ankle, and
limping. (Id. at 286.) Dr. Sultan noted no side
effects reported by plaintiff. (Id. at 289.) Dr.
Sultan opined that plaintiff could lift and
carry up to 10 pounds frequently, and up to
20 pounds occasionally. (Id. at 288.) He
opined that plaintiff did not have any
difficulty in reaching, handling, or lifting,
grasping, turning, or twisting (id. at 288), nor
any limitation using his fingers or hands for
fine manipulation, or reaching overhead
bilaterally (id. at 289). He opined that
plaintiff was precluded from pushing,
pulling, kneeling, bending, and stooping, and
had to avoid heights. (Id. at 298.) He opined
that plaintiff could sit for 2 to 3 hours per day,
and must rise and move hourly, and could
stand or walk for 1 to 2 hours per day. (Id. at
287.) Dr. Sultan assessed that plaintiff could
not sit or stand continuously. (Id. at 287-88.)
Plaintiff would be absent more than thrice a

On February 6, 2012, plaintiff returned to
Dr. Mitromaras to obtain refills for Vicodin
(Id. at 514.) Plaintiff complained of severe
pain in his left shoulder and left ankle, and
stated that he had run out of Vicodin. (Id.)
Physical examination again revealed a
normal gait, normal motor strength, normal
fine motor, normal sensation, and intact deep
tendon reflexes. (Id.) Straight leg raise was
negative. (Id.) His back, hips, lower
extremities, feet, and ankles, bilaterally, were
within normal limits, as were his hands and
upper extremities, except for decreased range
8

shoulder pain. (Id. at 498.) Dr. Ilizarov noted
that the MRI revealed hypertrophic
degenerative
changes
at
the
acromioclavicular
joint,
supraspinatus
tendinosis with mild interstitial delamination,
and degeneration of the glenohumeral joint;
she recommended 6 weeks of physical
therapy. (Id.)

of motion in his shoulder. (Id.) Dr.
Mitromaras diagnosed rotator cuff syndrome,
prescribing Vicodin. (Id. at 513.)
On February 27, 2012, plaintiff returned
to Dr. Ilizarov for his left ankle pain, wearing
a brace. (Id. at 494-95.) At the last visit, he
had been sent to Dr. Sampson, who had
recommended a brace prior to considering
surgery. (Id. at 494.) Plaintiff was taking
Vicodin and was still in great pain. (Id.) On
examination, plaintiff had a limp on the left
side, but his gait improved after a onecentimeter heel lift was used. (Id.) His
sensation was intact, there was no erythema,
and pulses were equal and physiologic. (Id.)
There was tenderness over the subtalar joint.
(Id.) Dr. Ilizarov’s impression was left ankle
pain and effusion, with pain most likely due
to the arthritis of the subtalar joint. (Id.) Dr.
Illizarov recommended that plaintiff wear
higher heel sneakers and return to Dr.
Sampson to discuss surgery. (Id. at 495.)

During a May 24, 2012 follow-up,
plaintiff stated that he had not gone for
physical therapy because he did not know
which place took his insurance. (Id. at 499.)
Dr. Ilizarov emphasized the importance of
following through with physical therapy.
(Id.)
On July 30 and November 16, 2012,
plaintiff returned to Dr. Mitromaras for a
renewal of his medications Viagra,
Lisinopril, and Flomax. (Id. at 504, 506.) Dr.
Mitromaras noted that he was wearing his
ankle brace. (Id. at 506). Examination on
both occasions revealed normal upper
extremities, as well as normal sensation,
reflexes, gait, and motor strength. (Id. at 504,
506.)

On March 19, 2012, plaintiff returned to
Dr. Ilizarov for a follow-up. (Id. at 496-97.)
He stated that he experienced a significant
improvement in his gait after changing shoes
to one with a higher heel. (Id. at 496.)
Plaintiff complained, however, of leftshoulder pain of several months’ duration.
(Id.) On examination, Dr. Ilizarov found that
plaintiff had positive impingement signs and
reduced range of motion in the left shoulder
and otherwise full range of motion in the
other shoulder. (Id.) Motor strength was full,
sensation was intact, reflexes were
symmetrical, stability was intact, asymmetry
was absent, Hawkins sign was negative, and
Spurling sign was also negative. (Id.) Dr.
Ilizarov diagnosed rotator cuff tendonitis,
and recommended a magnetic imaging
(“MRI”) scan of the left shoulder followed,
possibly, by physical therapy. (Id. at 497.)

5. Testimony of Medical Expert
At the June 9, 2015 hearing, the ALJ
declined to seek the testimony of Justin
Willer, M.D., a neurologist, given that Dr.
Willer had indicated prior to the hearing that
there were no neurological issues and
plaintiff’s counsel expressly agreed that Dr.
Willer’s testimony was unnecessary. (Id. at
331.)
At the hearing, the ALJ did obtain the
testimony of John Kwock, M.D., a boardcertified orthopedic surgeon, who had
reviewed the evidence in the record. (Id. at
332-44; see id. at 527-28.) Dr. Kwock opined
that neither plaintiff’s left shoulder rotator
cuff impingement nor ankle fracture and

On April 11, 2012, plaintiff returned to
Dr. Ilizarov complaining of unchanged
9

Kwock explained that he did not mean
walking for an extensive period at any one
time, but rather the kind of cumulative
walking around an office during the course of
the day entailed in light work. (Id.) Dr.
Kwock further explained that plaintiff’s
ankle fusion and orthosis were good
treatment for ankle arthritis and “came close
to allowing plaintiff to run around pretty
good.” (Id. at 339.) Plaintiff’s counsel also
challenged Dr. Kwock’s failure to account
for the impact of the disparity between
plaintiff’s leg lengths, but Dr. Kwock
explained that plaintiff’s orthotics for his
ankle fusion would remedy the discrepancy.
(Id.) Dr. Kwock also explained that no cane
would be needed for an ankle fusion with the
rubber bottom orthotics, but that if plaintiff
were more confident with one, a doctor
“would not object . . . but it’s not necessary.”
(Id. at 340.)

sequelae, singly or in combination, met or
equaled a Listed Impairment. (Id. at 334-35.)
Dr. Kwock testified that, as to the rotator
cuff impingement, x-rays revealed mild
degenerative changes, and clinical findings
showed restricted motion above shoulder
height, but a functional range of motion; and
there was no MRI in the record by which to
assess the soft tissues, except a second-hand
account of such an MRI. (Id. at 333-34.) Dr.
Kwock opined that the shoulder impingement
probably caused minimal to mild pain, noting
the lack of surgical treatment. (Id. at 334.)
As to plaintiff’s left ankle, Dr. Kwock
opined that it dated from a poor outcome of a
severe 1984 ankle fracture involving the tibia
and soft tissue of the ankle that was later
revised in a fusion. (Id. at 334.) Dr. Kwock
opined that the fusion itself had not broken
down, but rather that plaintiff’s pain stemmed
from arthritic changes, which would limit
plaintiff’s endurance ambulating and his
ability to lift and carry. (Id. at 334-35.)

B. Procedural History
1. Carlsen I
On April 7, 2010, plaintiff filed a claim
for disability insurance benefits, alleging that
he was disabled beginning on April 20, 2008.
(Id. at 142-43.) On June 23, 2010, plaintiff’s
application was denied (id. at 83-85), and
plaintiff requested a hearing on July 21, 2010
(id. at 45-46). Plaintiff testified at a hearing
held before ALJ Seymour Rayner on April
28, 2011 (id. at 47-78), and by decision dated
July 15, 2011, ALJ Rayner found that
plaintiff was not disabled (id. at 22-30). The
Appeals Council thereafter denied plaintiff’s
request for review on October 25, 2012. (Id.
at 6-11.)

Dr. Kwock opined that, during the period
from June 24, 2008 to March 6, 2013,
plaintiff could: lift and carry 20 pounds
occasionally and 10 pounds frequently; stand
and/or walk for 6 hours out of an 8-hour
workday; sit for 7 hours out of an 8-hour
workday; continuously handle, finger, and
reach waist-to-chest; frequently push and pull
with the upper extremities; frequently climb
ramps/stairs, balance, stoop, kneel, and
crouch; only occasionally push with the
lower extremities; only occasionally work in
high-exposed places, crawl, and reach above
the shoulder; and never climb ladders or be
near moving parts. (Id. at 335-37.)

Plaintiff then commenced suit in this
Court. See Carlsen I, 2014 WL 4536728. By
Memorandum and Order dated September
11, 2014 (the “Memorandum and Order”),
Judge Seybert remanded the case after
concluding that the ALJ violated the treating

Plaintiff’s counsel challenged Dr.
Kwock’s opinion that plaintiff could walk 6
out of 8 hours, given that Dr. Kwock had also
opined that plaintiff’s ankle affected
ambulating endurance. (Id. at 338-39.) Dr.
10

physician rule with respect to Dr. Carlson’s
medical opinion because, “[a]lthough it [was]
clear that the ALJ did not give Dr. Carlson’s
opinions ‘controlling weight,’ the ALJ never
actually specified what weight, if any, he
ultimately gave to Dr. Carlson’s opinions.”
Id. at *8. The Court instructed that, “[o]n
remand, the ALJ should identify the degree
of weight given to Dr. Carlson’s opinions and
explain why Dr. Carlson’s opinions deserve
such weight.” Id. In addition, the Court
“disagree[d] with Plaintiff that the ALJ failed
to provide an analysis of Plaintiff’s
credibility,” but directed that “the ALJ should
readdress the issue of credibility on remand
after properly applying the treating physician
rule.” Id. at *9.

should consider the combined impact of
Plaintiff’s left ankle impairment with his
obesity throughout the evaluation process.” 2
Id.
2. Post-Remand Proceedings
Following the Court’s Memorandum and
Order, the Appeals Council vacated the
ALJ’s ruling on February 12, 2015 and
returned the case to the ALJ consistent with
the Memorandum and Order. (AR at 383-84.)
In that order, the Appeals Council noted that
plaintiff had also filed a subsequent
application for benefits that found him
disabled since March 6, 2013, and instructed
the ALJ to only consider if plaintiff was
disabled prior to that date. (Id. at 383.)

With respect to the issue of plaintiff’s
obesity, the “Court agree[d] that remand on
this ground [was] also required” because,
although “‘[o]besity is not in and of itself a
disability . . . the Social Security
Administration considers it to be a medically
determinable impairment, the effects of
which should be considered at the various
steps of the [ALJ’s] evaluation process . . . .’”
Id. at *10 (quoting Polynice v. Colvin, No.
12-CV-1381, 2013 WL 6086650, at *6
(N.D.N.Y. Nov. 19, 2013)) (citing SSR 021p, 2000 WL 628049 (Sept. 12, 2002)). The
Court found that “the record [did] show that
Plaintiff was obese, and given that Plaintiff
had a musculoskeletal impairment in the
form of his left ankle injury, the ALJ should
have considered the effects of Plaintiff’s
obesity, if any, in conjunction with Plaintiff’s
ankle impairment at the various steps of the
evaluation process.”
Id. (footnote and
citations omitted). Accordingly, the Court
further instructed that, “on remand, the ALJ

On June 9, 2015, plaintiff appeared at a
hearing in front of ALJ Patrick Kilgannon.
(Id. at 338-53.) On July 31, 2015, the ALJ
issued an unfavorable decision finding that
plaintiff was not disabled between the
amended alleged onset date of June 24, 2008
and March 6, 2013. (Id. at 305-26.) The
Appeals Council denied plaintiff’s request
for review on April 26, 2016 (id. at 296-301),
making the ALJ’s July 31, 2015 decision the
final decision of the Commissioner.
Plaintiff filed the instant action seeking
reversal of the ALJ’s decision on June 27,
2016. (ECF No. 1.) The Court received the
Administrative Record on September 26,
2016. (ECF No. 10.) Plaintiff filed a motion
for judgment on the pleadings on November
23, 2016. (ECF No. 11.) The Commissioner
opposed plaintiff’s motion and cross-moved
for judgment on the pleadings on May 12,
2017. 3 (ECF No. 18.)

2

Because the Court found that remand was warranted
based on the ALJ’s violation of the treating physician
rule, it did “not address Plaintiff’s additional argument
that the evidence submitted to the Appeals Council
after the ALJ’s decision warrant[ed] remand.

However, since this evidence [was] now part of the
record,” the Court ordered the ALJ to “consider such
evidence on remand.” Id. at *8 (citation omitted).
3

11

By letter dated April 24, 2017 (ECF No. 17), the

The Court has fully considered all of the
parties’ submissions, as well as the
Administrative Record.

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). 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
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.”).

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 [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

Commissioner informed the Court that she had served
her cross-motion on plaintiff.
However, the

Commissioner did not file her submissions with the
Court until May 12, 2017.

12

At the fourth step, the ALJ concluded that
plaintiff had the RFC to perform light work,
except that plaintiff was

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.

restricted to the following specific
parameters of limitation: lifting and
carrying 20 pounds occasionally and
10 pounds frequently; standing and
walking six hours out of an eight-hour
day and sitting seven hours out of an
eight hour day with normal breaks;
with frequently [sic] ability in
pushing and pulling with the upper
extremities, climbing ramps/stairs,
balancing, stooping, kneeling, and
crouching; occasional ability in
pushing and pulling with the lower
extremities, crawling, and overhead
reaching left upper extremity;
preclusion
from
climbing
ladders/ropes/scaffolds and avoiding
exposure to unprotected heights and
moving machinery.

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)).

(Id. at 312-13.)
The ALJ afforded the findings of Drs.
Kwock, Manyam, and Acer great weight in
his analysis, while giving “little weight” to
Dr. Carlson’s opinion and “some weight” to
the findings of Dr. Sultan. (Id. at 314-16.)
The ALJ afforded great weight to Dr. Kwock
on the grounds that he was “an orthopedic
surgeon and impartial medical expert.” (Id. at
314.) The ALJ added that Dr. Kwock’s
findings were granted great weight because
of “his review of the entire record . . . his
familiarity with . . . [the] disability program
. . . his availability for cross-examination . . .
[and that his] opinion [was] consistent with,
and well supported by, the evidence of
record.” (Id.) The ALJ also afforded “great
weight” to the findings of Drs. Manyam and
Acer. (Id. at 315.) He found that both sets of
findings were “derived following a thorough
physical and mental status examination[] of
[plaintiff] and their findings [were] set forth

B. The ALJ’s July 31, 2015 Ruling
Here, the ALJ determined that plaintiff
did not engage in substantial gainful
employment between his amended alleged
onset date of June 24, 2008 and March 6,
2013—the date his subsequent application
for disability benefits was granted. (AR at
311.) The ALJ found plaintiff to have the
following “severe impairments” during the
relevant period: joint disorders of the left
shoulder, bilateral knees, and left ankle, as
well as obesity. (Id.) The ALJ found that
these impairments did not, however, fall
under the list of impairments outlined in
Appendix 1 of the regulations. (Id. at 312.)
13

inspector, perishable freight inspector, or
shipping clerk, of which there were a
significant number of jobs in the national
economy. (Id. at 318-20.) Consequently the
ALJ determined that plaintiff did not qualify
for disability benefits. (Id. at 321.)

in a [sic] detailed narrative reports which are
consistent with other opinions in the record
and the record as a whole.” (Id.)
The ALJ afforded “little weight,”
however, to treating physician Dr. Carlson,
despite his “longitudinal history with”
plaintiff, on the grounds that Dr. Carlson’s
findings were “not consistent with the record
as a whole and offer[ed] limitations which
[were] not supported by any clinical findings
or clinical diagnostic testing in the record.”
(Id.) Moreover, the ALJ added that Dr.
Carlson was a “practitioner of family
medicine” and was not a “specialist in
orthopedics,
physiatry,
or
other
musculoskeletal discipline.” (Id.) In addition,
the ALJ afforded Dr. Sultan’s opinion “some
weight” because Dr. Sultan “saw [plaintiff]
only one time, in 2011, and [had] no personal
knowledge as to [plaintiff’s] medical history
beyond that one examination.” (Id. at 316.)
The ALJ also found Dr. Sultan’s opinion
“unpersuasive in that [plaintiff] was able to
work for many years in his usual occupation
despite being afflicted with the limitations
Dr. Sultan offer[ed].” (Id.)

C. Analysis
Plaintiff challenges the ALJ’s decision
on the following grounds: (1) that the ALJ
failed to follow the treating physician rule;
(2) that the ALJ improperly evaluated
plaintiff’s credibility; and (3) that the ALJ did
not properly address plaintiff’s obesity
consistent with the Memorandum and Order.
As set forth below, the Court concludes that
the ALJ failed to properly apply the treating
physician rule and to take plaintiff’s obesity
into account throughout his analysis. Thus,
remand is warranted, and the Court need not,
and does not, address plaintiff’s credibility
argument.
Plaintiff also asks the Court to (1) remand
this matter solely for a benefits calculation, or
in the alternative, (2) remand this matter to a
new ALJ for an expedited hearing. However,
for the reasons set forth below, the Court
concludes that such remedies are
inappropriate at this juncture.

As a result, the ALJ concluded that
plaintiff’s
“medically
determinable
impairments could reasonably be expected to
cause the alleged symptoms,” but that
plaintiff’s “statements concerning the
severity, intensity, persistence and limiting
effects of these symptoms” were not credible
to establish disability for the relevant period.
(Id. at 317.) In addition, the ALJ found that
“[a]lthough the claimant references more
significant limitations, none of this [spoke] to
a true lack of independence.” (Id. at 318.)

1. 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.

Having concluded that plaintiff had the
RFC to perform light work within certain
limitations, the ALJ found that plaintiff could
not perform his past relevant work as a tractor
trailer driver, but that plaintiff could use his
transferrable skills as, inter alia, a loading
14

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.”
(internal citation omitted)).

The rule as set forth in the regulations,
provides:
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
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.

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.”).

Here, remand is appropriate because the
ALJ failed to give “good reasons” for
according less than controlling weight to the
opinion of plaintiff’s treating physician, Dr.

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.
15

Carlson. 4 See Halloran, 362 F.3d at 33 (“We
do not hesitate to remand when the
Commissioner has not provided ‘good
reasons’ for the weight given to a treating
physicians opinion and we will continue
remanding when we encounter opinions from
ALJ’s that do not comprehensively set forth
reasons for the weight assigned to a treating
physician’s opinion.” (emphasis added)). The
ALJ afforded Dr. Carlson’s opinion “little
weight” on the grounds that his opinion was
“not consistent with the record as a whole and
offer[ed] limitations which are not supported
by any clinical findings or clinical diagnostic
testing in the record.” (AR. at 315.) He also
stated that Dr. Carlson is “a practitioner of
family medicine and not a specialist in
orthopedics,
physiatry,
or
other
musculoskeletal disciple.” (Id.) The ALJ
further noted that plaintiff had a “longitudinal
treatment history” with Dr. Carlson, but he
added nothing further to explain why
plaintiff’s treating physician was not granted
controlling weight. (Id.)

265.) Dr. Carlson opined that plaintiff: could
sit and stand/walk for no more than one hour
each in an 8-hour workday (id. at 267); could
not sit or stand continuously in a work
setting, and would need to get up and move
around every half hour (id. at 267-68); and
could lift and carry up to 10 pounds on an
occasional basis (id. at 268). Dr. Carlson also
opined that plaintiff: had arthritis in both
hands and, therefore, would have moderate
limitations in grasping, turning, twisting, fine
manipulations, fingering, handling, and
reaching (id. at 268-69); was completely
unable to push, pull, kneel, bend, or stoop;
and had to avoid wetness, noise, fumes,
gases, temperature extremes, humidity, dust,
and heights (id. at 271). He added that
plaintiff also had limited vision. (Id.) Dr.
Carlson further stated that plaintiff’s pain,
fatigue, and other symptoms would interfere
with his attention and concentration on a
constant basis. (Id. at 270.) Dr. Carlson also
said that plaintiff’s impairment would
interfere with his ability to keep the neck in a
constant position. (Id. at 269.) He stated that
plaintiff’s symptoms and limitations had
existed since March or April of 1984. (Id. at
271.)

Moreover, the ALJ failed to explicitly
consider several factors such as the frequency
of Dr. Carlson’s examinations of plaintiff; the
length, nature, and extent of the treatment
relationship between plaintiff and Dr.
Carlson (which began in 2010); and the
evidence in support of Dr. Carlson’s opinion.
Id. at 315; see also 20 C.F.R. § 404.1527(c);
Balodis v. Leavitt, 704 F. Supp. 2d 255, 26568 (E.D.N.Y. 2010) (finding that remand was
appropriate where the ALJ did not explicitly
consider several factors when rejecting
treating physician’s opinion). As described
above, Dr. Carlson completed a Multiple
Impairment Questionnaire in March 2011.
(AR at 265-72.) Therein, Dr. Carlson noted
that he had been treating plaintiff since
February 2010, every 2-3 months. (Id. at

The ALJ discounted Dr. Carlson’s
opinion in part because it was “not consistent
with the record as a whole and offer[ed]
limitations which [were] not supported by
any clinical findings or clinical diagnostic
testing in the record.” (Id. at 315.) However,
Dr. Carlson explicitly stated that his views
were based on clinical examination findings
of hardware located in plaintiffs’ left ankle
and x-rays. (Id. 265-66.) Further, when Dr.
Fracchia examined plaintiff in July 2008, xrays of the left ankle revealed four intact
screws from plaintiff’s prior surgeries, and
Dr. Fracchia diagnosed left ankle

4

As plaintiff’s treating physician, Dr. Carlson 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).

16

also Vargas v. Sullivan, 898 F.2d 293, 29596 (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 little
if any weight.”). Thus, Dr. Kwock’s opinion
“cannot by itself constitute substantial
evidence that justifies the rejection of the
opinion of . . . a treating physician” because
Dr. Kwock 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 nonexamining physician does not, by itself,
suffice.”). Accordingly, the ALJ’s “heavy
reliance on [Dr. Kwock’s] testimony also
contravened the clear guidance of SSA
regulations, as [Dr. Kwock] was a
nonexamining source whose opinions are to
be accorded less weight than those of
examining sources and especially treating
sources.” Brown v. Comm’r of Soc. Sec., No.
06-CV-3174 ENV MDG, 2011 WL 1004696,
at *4 (E.D.N.Y. Mar. 18, 2011) (citing 20
C.F.R. § 404.1527).

osteoarthritis, status post fusion. (Id. at 185.)
The range of motion in plaintiff’s ankle was
also limited, and it was tender to palpation.
(Id. at 184-85.) There was decreased
sensation on the top of his foot and the front
of his ankle, which plaintiff stated was
unchanged from years earlier. (Id. at 185.)
Nevertheless, the ALJ afforded “great
weight” to the medical opinions of Dr.
Manyam, a consultative examiner who
examined plaintiff once in July 2010 (id. at
231-34), and Dr. Kwock, a non-examining
medical expert who never treated plaintiff
(id. at 332).
However, 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).
Likewise, the Second Circuit has said that
a “corollary to the treating physician rule is
that the opinion of a non-examining doctor by
itself cannot constitute the contrary
substantial evidence required to override the
treating physician’s diagnosis.” Hidalgo v.
Bowen, 822 F.2d 294, 297 (2d Cir. 1987); see

In short, the ALJ failed to provide “good
reasons” for rejecting the treating physician’s
opinions. Snell, 177 F.3d at 133. That failure
17

“by itself warrants remand.” Selian, 708 F.3d
at 419. In addition, remand is further
warranted based on the ALJ’s heavy reliance
on the opinions of consulting and nonexamining physicians. 5 See id.; Brown, 2011
WL 1004696, at *4.

Plaintiff’s ankle impairment at the various
steps of the evaluation process.” Carlsen I,
2014 WL 4536728, at *10.
Accordingly, on remand, the ALJ must
also definitively address the impact, if any,
plaintiff’s obesity had on his RFC at step four
of the disability evaluation procedure.

2. Plaintiff’s Obesity
Plaintiff also contends that the ALJ
“failed to indicate if he considered the impact
of Mr. Carlsen’s obesity on his residual
functional capacity or the impact it had on the
claimant’s ankle impairment.” (Pl.’s Br.,
ECF No. 12, at 18.) In Carlsen I, the Court
explicitly directed that “on remand, the ALJ
should consider the combined impact of
Plaintiff’s left ankle impairment with his
obesity throughout the evaluation process.”
2014 WL 4536728, at *10 (emphasis added).
The ALJ did not follow that instruction.
Instead, after initially citing the Court’s
direction that “plaintiff’s obesity be
considered pursuant to SSR 02-1p” (AR at
308-09), at step two of the analysis, the ALJ
listed obesity as one of plaintiff’s severe
impairments (id. at 311); and at step three, he
determined that obesity was not a per se
impairment (id. at 312).

IV. REMEDY
As relief, plaintiff requests that the Court
(1) remand solely for a benefits calculation,
or, in the alternative, (2) remand the case to a
new ALJ for an expedited hearing. For the
reasons set forth below, the Court concludes
that none of these remedies is warranted at
this juncture.
A. Remand for Benefits Calculation
Plaintiff contends that the “reliable
evidence points in only one direction”—that
plaintiff is disabled—and, therefore, that the
case should be remanded simply for a
calculation of benefits. (Pl.’s Br. at 20.)
However, the Second Circuit has emphasized
that “reversal for calculation of benefits is
appropriate only when there is ‘no apparent
basis to conclude that a more complete record
might support the Commissioner’s decision
. . . .’” De Mota v. Berryhill, No. 15 CIV.
6855 (PED), 2017 WL 1134771, at *9
(S.D.N.Y. Mar. 24, 2017) (quoting Rosa, 168
F.3d at 83) (citing Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980) (remand for
calculation of benefits only appropriate
where record contains “persuasive proof of
disability” and remand for further evidentiary

However, there the discussion ends.
There is no indication that the ALJ
considered plaintiff’s obesity at step four in
determining plaintiff’s RFC, notwithstanding
the Court’s prior caution that, “given that
Plaintiff had a musculoskeletal impairment in
the form of his left ankle injury, the ALJ
should have considered the effects of
Plaintiff’s obesity, if any, in conjunction with
5

Plaintiff also contends that the ALJ failed to properly
evaluate plaintiff’s credibility. Because the Court
concludes that the ALJ erred in applying the treating
physician rule, and that a remand is appropriate, the
Court need not decide at this time whether the ALJ
erred in assessing plaintiff’s credibility. The Court
recognizes that “[i]t is the function of the Secretary,
not the reviewing courts, to resolve evidentiary
conflicts and to appraise the credibility of witnesses,

including the claimant.” Aponte v. Sec’y Dep’t of
Health & Human Servs., 728 F.2d 588, 591 (2d Cir.
1984) (internal citations and alteration omitted).
However, to the extent that the ALJ, on remand, reevaluates the evidence in addressing the treating
physician rule, in accordance with this Memorandum
and Order, the ALJ should also consider whether that
re-evaluation alters his assessment of plaintiff’s
credibility in light of the evidence as a whole.

18

B. Appointment of a New ALJ

proceedings would serve no purpose)); see
also Surrusco v. Berryhill, No. 16-CV-4649
(JFB), 2017 WL 3017197, at *2 (E.D.N.Y.
July 17, 2017).

Alternatively, plaintiff asks that the Court
direct the Commissioner to assign a new ALJ
to this matter on remand because “the ALJ’s
decision exhibits an unwillingness to either
properly
apply
the
Commissioner’s
Regulations or to follow the Court’s
[Memorandum and] Order to properly
adjudicate the claim.” (Pl.’s Br. at 20.)

Here, the Court disagrees with plaintiff
that remand for a benefits calculation is
proper at this juncture because such a remedy
“is appropriate only in the rare circumstance
where there is persuasive proof of disability
in the record and remand for further
evidentiary development would not serve any
purpose.” Arshad v. Astrue, No. 07 CIV 6336
(JSR) (KNF), 2009 WL 996055, at *3
(S.D.N.Y. Apr. 6, 2009); see also Rosa, 168
F.3d at 83; Parker, 626 F.2d at 235. As set
forth above, the ALJ violated the treating
physician rule and failed to adequately
consider plaintiff’s obesity, but the Court is
“unable to say that on remand, and with a
proper analysis” that “a finding of disability
prior to [March 6, 2013] would necessarily
result.” Baggett v. Astrue, No. 5:11-CV-0195
NAM/DEP, 2012 WL 2814369, at *14
(N.D.N.Y. June 13, 2012), report and
recommendation adopted, No. 5:11-CV0195, 2012 WL 2814329 (N.D.N.Y. July 10,
2012); see also Bush v. Shalala, 94 F.3d 40,
46 (2d Cir. 1996) (“[A] decision to reverse
and direct an award for benefits should be
made only when . . . substantial evidence on
the record as a whole indicates that the
claimant is disabled and entitled to
benefits.”). The Administrative Record
includes several medical reports that
plaintiff’s physical condition was normal or
unremarkable during the period at issue. (See,
e.g., AR at 275, 496.) For instance, Dr.
Mitromaras opined that plaintiff’s 2012
examination results indicated “normal upper
extremities, as well as normal sensation,
reflexes, gait, and motor strength.” (Id. at
506.) As a result, the Court cannot say, based
on the current record, that substantial
evidence indicates that plaintiff was disabled
prior to March 6, 2013.

The decision to assign a case to a new
ALJ on remand is usually left to the
discretion of the Commissioner, and courts
will generally not get involved without good
reason. Hartnett v. Apfel, 21 F. Supp. 2d 217,
222 (E.D.N.Y. 1998) (citing Travis v.
Sullivan, 985 F.2d 919, 924 (7th Cir. 1993)).
Indeed, after Carlsen I, a different ALJ
presided over plaintiff’s June 2015 hearing
and issued the ruling sub judice.
Based upon case authority from the
Second Circuit (and sister circuits), this Court
has held that reassignment is permissible
relief only under circumstances where the
ALJ’s
fundamental
impartiality
is
compromised by his or her previous actions
in a case. See Miles v. Chater, 84 F.3d 1397,
1401 (2d Cir. 1996). The relevant factors for
determining whether a new ALJ should be
assigned on remand include:
(1) a clear indication that the ALJ will
not apply the appropriate legal
standard on remand; (2) a clearly
manifested bias or inappropriate
hostility toward any party; (3) a
clearly apparent refusal to consider
portions of the testimony or evidence
favorable to a party, due to apparent
hostility to that party; (4) a refusal to
weigh or consider evidence with
impartiality, due to apparent hostility
to any party.

19

filed his initial application for benefits, a time
limit is appropriate in this case to prevent
undue
delay.”
(citation
omitted));
Dambrowski v. Astrue, 590 F. Supp. 2d 579,
588 (S.D.N.Y. 2008) (same).

Sutherland v. Barnhart, 322 F. Supp. 2d 282,
292 (E.D.N.Y. 2004).
The Court disagrees with plaintiff that
reassignment is warranted in this case. Upon
remand, the ALJ did, as the Court instructed,
accord weight to the treating physician’s
opinion, but failed to explain why that
opinion was not entitled to “controlling
weight.” The ALJ is instructed to provide
such an explanation following remand by this
Court. Similarly, although the ALJ did not
consider plaintiff’s obesity at step four, he
did consider it at earlier steps. Plaintiff does
not argue, nor is there any relevant evidence
in the record, that the ALJ “manifested bias
or inappropriate hostility” toward plaintiff.
Accordingly, the Court leaves it to the
Commissioner
to
decide
whether
reassignment is appropriate in this case
following remand.

Here, plaintiff does not assert that the
ALJ erred in developing the Administrative
Record, but rather, that the ALJ mistakenly
applied the law to the facts. (Pl.’s Br. at 1019.) Moreover, plaintiff has not argued that
additional fact-finding is required upon
remand. In addition, unlike Butts, there is no
evidence of years-long delay; on the contrary,
the ALJ held a hearing and issued a ruling
approximately nine months after Carlsen I.
See supra Part I.B.2.
Accordingly, although the Court
recognizes that this case has a lengthy
procedural history and has already been
remanded once, the Court declines, in its
discretion, to remand with a time limit
requiring the ALJ to issue a new decision by
a date certain.

C. Remand for an Expedited Hearing
Finally, plaintiff claims that an
“expedited hearing and decision” is needed
on remand to the ALJ. (Pl.’s Br. at 20.) The
Second Circuit has stated, in a decision cited
by plaintiff, that “in cases involving an ALJ’s
failure to call a vocational expert, district
courts that select remand as a remedy should
consider imposing a time limit on the
subsequent proceedings. In this case, the past
delay is of such magnitude—years—that a
time limit is imperative.” Butts v. Barnhart,
388 F.3d 377, 387 (2d Cir. 2004). Likewise,
other district courts have imposed time limits
where remand occurred several years after
filing of the benefits application and the ALJ
failed to develop the record. See, e.g.,
Barbour v. Astrue, 950 F. Supp. 2d 480, 491
(E.D.N.Y. 2013) (“District courts in this
circuit have been instructed to consider
imposing a time limit on subsequent
proceedings when ordering a remand for
further development of the record. As it has
been more than seven years since the Plaintiff

V. CONCLUSION
For the reasons set forth above, the Court
denies plaintiff’s motion for judgment on the
pleadings and the Commissioner’s crossmotion for judgment on the pleadings. 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
Date: September 19, 2017
Central Islip, NY
***

20

Plaintiff is represented by Charles E. Binder
of the Law Offices of Harry J. Binder and
Charles E. Binder, P.C., 60 East 42nd Street,
Suite 520, New York, New York 10165.
The Commissioner is represented by
Assistant United States Attorney Layaliza K.
Soloveichik of the United States Attorney’s
Office for the Eastern District of New York,
271 Cadman Plaza East, 7th Floor, Brooklyn,
New York 11201.

21