Barrett v. Colvin
Filing
17
ORDER denying 13 Motion for Judgment on the Pleadings. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied. The Commissioner's cross-motion for judgment on the pleadings is also denied. The case is remanded to the Administrative Law Judge for further proceedings. Ordered by Judge Joseph F. Bianco on 2/14/2018. (Karamigios, Anna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-4660 (JFB)
_____________________
BRIAN SCOTT BARRETT,
Plaintiff,
VERSUS
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
February 14, 2018
______________
JOSEPH F. BIANCO, District Judge:
Plaintiff Brian Scott Barrett 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 Social Security Disability
benefits. An Administrative Law Judge
determined that plaintiff had the residual
functional capacity (“RFC”) to perform light
work, with certain exertional and
nonexertional limitations; that there were a
significant number of jobs in the national
economy that plaintiff could perform; and
that, therefore, plaintiff was not disabled.
The Appeals Council denied plaintiff’s
request for review of the ALJ’s
determination.
Accordingly, the ALJ’s
determination became the Commissioner’s
final determination.
Plaintiff now moves for judgment on
the pleadings under Federal Rule of Civil
Procedure 12(c).
Plaintiff argues that:
(1) the ALJ did not afford adequate weight
to the medical opinions of plaintiff’s treating
physician, Dr. Dowling; (2) the ALJ’s
determination that plaintiff had the RFC to
perform light work was not based on
substantial evidence; (3) the ALJ failed to
properly evaluate plaintiff’s credibility; and
(4) the Commissioner failed to sustain her
burden of establishing that there is other
work in the national economy that plaintiff
can perform. Plaintiff requests that the
Commissioner’s decision be reversed and
the Court remand the case with instructions
to award benefits.
In the alternative,
plaintiff requests that the Commissioner’s
decision be reversed and the Court remand
the case for reconsideration by the ALJ of:
(1) the weight given to Dr. Dowling’s
opinions; (2) plaintiff’s RFC to perform
light work; (3) plaintiff’s credibility; and
(4) new vocational expert testimony. The
Commissioner opposes the motion and
cross-moves for judgment on the pleadings.
and debris. (Id. at 132.) Plaintiff frequently
lifted 50 pounds or more, and was able to lift
up to 100 pounds. (Id. at 132.) On October
2, 2009, plaintiff made changes in his work
activity, and ultimately stopped working on
August 19, 2010 because of alleged
disability due to a right knee medial
meniscus tear, a left shoulder rotator cuff
tear, neck and lower back degenerative disc
disease, acid reflux, and emotional disorder.
(Id. at 48-49, 115, 127, 130-31, 151.)
For the reasons set forth below, the
Court denies plaintiff’s motion for judgment
on the pleadings, denies the Commissioner’s
cross-motion for judgment on the pleadings,
and remands the case to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.
In a function report completed on June
5, 2013 (id. at 140-50), plaintiff reported
that he lived in a house with his wife and
two sons (id. at 115-16, 140, 153). On a
typical day, plaintiff took anti-inflammatory
and pain medication, helped his wife with
caring for their children, which included
taking his sons to and from the bus stop and
driving them to and from sports activities,
watched television, read books, browsed the
internet, and bird-watched. (Id. at 141, 144.)
Plaintiff had difficulty sleeping, preparing
meals, taking care of personal hygiene and
grooming, and performing house and yard
work due to pain, weakness, and problems
with stability, but he performed “simple
chores” frequently. (Id. at 141-42.) Plaintiff
possessed a driver’s license and was able to
operate a vehicle to go out on his own and
provide transportation for his sons. (Id. at
141, 143-44.) Despite his ability to drive,
plaintiff would shop only online for
clothing, homeopathic remedies, and books.
(Id.) Plaintiff stated that he had little
interest in socializing with others, but he
attended church and his sons’ sports
activities. (Id. at 145.) Plaintiff also stated
that he stopped drinking because of his acid
reflux. (Id.) Plaintiff had no difficulty using
his hands, seeing, and talking, but had
difficulty lifting, climbing stairs, kneeling,
squatting, and reaching. (Id. at 145-46.)
Plaintiff could not stand, walk, or sit for
long periods of time. (Id. at 145-47.) He
used a walker for assistance in the restroom
I. FACTUAL BACKGROUND
The following summary of the relevant
facts is based on the Administrative Record.
(“AR,” ECF Nos. 8, 12.) 1
A more
exhaustive recitation is contained in the
parties’ submissions to the Court and not
repeated here.
A. Personal and Work History
Plaintiff was born on February 3, 1961,
and was 49 years old at the onset of his
disability on August 19, 2010. (AR at 4849, 115, 127, 130, 151, 170.) On June 1,
2005, plaintiff successfully completed three
years of college. (Id. at 131.) Plaintiff’s
past relevant work history includes working
as a firefighter. (Id. at 130.) Plaintiff started
working for the Fire Department of the City
of New York (the “FDNY”) in August 1990.
(Id. at 131.) On November 1, 1990, plaintiff
successfully completed the FDNY Fire
Training Academy. (Id.) As a firefighter,
plaintiff would lift ladders, tools, victims,
1
Pages 1-340 of the AR appear at ECF No. 8; pages
341-366 appear at ECF No. 12.
2
and wore a brace on his right knee only
when outside the house. (Id. at 146-47.)
Plaintiff reported that he had difficulty
paying attention and finishing what he
started, but he could follow written and
spoken instructions. (Id. at 147.)
On June 10, 2008, plaintiff saw
Dr. Kattia Olender. (Id. at 255.) In her
examination report, Dr. Olender commented
that plaintiff had injured his lower back after
lifting a 350-pound individual while on
duty. (Id.) Dr. Olender diagnosed plaintiff
with a “back strain or sprain,” and
recommended heat, stretching, Dolobid, and
Skelaxin. (Id.) Dr. Olender also indicated
that plaintiff’s current duty status was
“ML,” effective June 8, 2008. (Id.)
To alleviate pain, plaintiff used
homeopathic remedies, ice, and heat. (Id. at
149-50.)
Additionally, plaintiff took a
variety of prescription and non-prescription
medications. (Id.)
On June 15, 2008, plaintiff saw
Dr. Brian Maloney. (Id. at 254.) In his
examination
report,
Dr.
Maloney
commented that plaintiff had a back strain or
sprain, but no radicular pain. (Id.) Dr.
Maloney ultimately diagnosed plaintiff with
a “back strain or sprain,” and recommended
physical therapy. (Id.) Dr. Maloney also
indicated that plaintiff’s current duty status
was “ML,” effective June 8, 2008. (Id.)
B. Relevant Medical History
1. Medical Evidence Before August 19,
2010
At some point in 2005, plaintiff
underwent arthroscopic surgery on his right
shoulder to repair his rotator cuff. (Id. at
217.) The procedure was performed at New
York University Langone Medical Center.
(Id.)
On June 22, 2008, plaintiff saw Dr.
Michael Lin.
(Id. at 253.)
In his
examination report, Dr. Lin commented that
plaintiff had a lumbar strain, no radiation,
numbness, weakness, and was slowly
beginning to improve. (Id.) Dr. Lin
diagnosed plaintiff with a back strain or
sprain, and recommended physical therapy,
stretching, heat/ice, and nonsteroidal antiinflammatory drugs. (Id.) Dr. Lin also
indicated that plaintiff’s current duty status
was “ML,” effective June 8, 2008. (Id.)
On December 13, 2007, plaintiff injured
his lower back during a rescue while on duty
as firefighter. (Id. at 257.) On December
15, 2007, plaintiff saw Dr. Gerard Casey.
(Id.) Dr. Casey diagnosed plaintiff with a
“back strain or sprain,” and recommended
heat, Advil, and Skelaxin. (Id.) In his
examination report, Dr. Casey also indicated
that plaintiff’s current duty status was “FD,”
or full duty, effective August 13, 2007. (Id.)
On December 24, 2007, plaintiff saw
Dr. J. Marchisella. (Id. at 256.) In his
examination report, Dr. Marchisella
commented that plaintiff had a back strain or
sprain and nonradiating lower back pain.
(Id.) Dr. Marchisella ultimately diagnosed
plaintiff with a back strain or sprain, and
recommended heat for plaintiff. (Id.) Dr.
Marchisella also indicated that plaintiff’s
current duty status was “ML,” or medical
leave, effective December 15, 2007. (Id.)
On June 29, 2008, plaintiff returned to
Dr. Lin. (Id. at 252.) In his examination
report, Dr. Lin commented that plaintiff had
significant improvement with physical
therapy and good range of motion and
strength. (Id.) Dr. Lin diagnosed plaintiff
with a back strain or sprain, and
recommended home physical therapy and
core strengthening. (Id.) Dr. Lin also
indicated that plaintiff’s current duty status
was “ML,” effective June 8, 2008. (Id.)
3
motion in his right knee resulting from his
October 2, 2009 injury. (Id. at 213, 293.) 2
After physical examination, Dr. Cherney
noted that plaintiff had a range of motion of
5-90 degrees, tenderness over the medial
joint line, Lachman 4mm with no drop back,
4mm of medial and 4mm of lateral opening
on stress, and slight decreased patella
excursion with no pain on patella
compression, but his distal neurovascular
was intact. (Id. at 213.) Dr. Cherney also
reviewed an MRI of plaintiff’s right knee
and determined that plaintiff had a right
knee tear medial meniscus with probable
minimal partial tear ACL and patellofemoral
chondrosis/arthrosis.
(Id.)
Because
plaintiff’s knee was locked and he was
walking with a limp wearing a hinged knee
brace, Dr. Cherney recommended right knee
arthroscopy. (Id.)
On October 2, 2009, during a tactical
training at the New York Police Department
(the “NYPD”) Academy, plaintiff injured
his right knee. (Id. at 167, 168, 213, 242,
251.) Specifically, his right knee was
jammed during a combative physical session
with three NYPD trainers from the Weapons
and Tactics Unit. (Id. at 168, 242.) Plaintiff
reported that this condition caused a change
in his work activity. (Id. at 130.)
An October 12, 2009 MRI of plaintiff’s
left knee showed: a rupture of the ACL, a
bucket handle tear of the medial meniscus, a
small fracture involving the posterior nonweight bearing cortex of the lateral tibial
plateau, a shallow impaction injury of the
lateral condylar patellar sulcus, and a deep
focal chondral loss of the central femoral
trochlea. (Id. at 173, 284-85.)
On November 14, 2009, plaintiff saw
Dr. Pierc Ferriter. (Id. at 251.) In his
examination report, Dr. Ferriter commented
that plaintiff’s right knee was bent and
sprained and was painful and swollen. (Id.)
Dr. Ferriter diagnosed a meniscus-medial
tear, and indicated that plaintiff’s current
duty status was “ML,” effective November
14, 2009. (Id.)
On November 20, 2009, plaintiff
returned to Dr. Ferriter. (Id. at 250.) Dr.
Ferriter diagnosed plaintiff with a meniscusmedial tear and authorized surgery. (Id.) Dr.
Ferriter also indicated that plaintiff’s current
duty status was “ML,” effective November
14, 2009. (Id.)
On November 24, 2009, plaintiff
underwent arthroscopic surgery on his right
knee. (Id. at 168, 174, 209, 217, 242, 249,
293-94, 297-99.)
The procedure was
performed by Dr. Cherney at the North
Shore Surgery Center in Smithtown, New
York. (Id. at 168, 217, 242, 293, 298-99.)
At the end of Dr. Cherney’s operation
report, he indicated that “there [was] some
risk for persistent anterior and medial
symptoms” going forward. (Id. at 299.)
A November 16, 2009 MRI of
plaintiff’s
right
knee
showed
a
complex/macerated tear of the posterior
horn and body of the medial meniscus with
suspected associated meniscal fragment/flap
at the root attachment, intrasubstance tearing
noted of the anterior horn and root
attachment, mild focal edema within the
lateral femoral condyle and posterolateral
tibial plateau likely reflecting contusions,
suspected associated mid-grade ACL sprain,
and
patellofemoral
compartment
chondromaiacia. (Id. at 168, 173, 242, 26263, 293.)
The following day, plaintiff returned to
Dr. Cherney. (Id. at 212, 294.) Dr. Cherney
stated that plaintiff’s pain was moderate, and
On November 18, 2009, plaintiff saw
Dr. Stuart B. Cherney for pain and loss of
2
In the Disability Determination Explanation report,
Dr. Cherney was listed as a “Treating Source.” (Id.
at 50.)
4
On March 24, 2010, plaintiff returned to
Dr. Weil. (Id. at 235-36.) Again, under the
findings and impression sections of his
report, Dr. Weil indicated VAC syndrome
and GERD (id. at 235), and the rest of the
report was illegible.
that he was totally disabled as a firefighter.
(Id. at 212.) Plaintiff had a range of motion
of 20-90 degrees, mild swelling, no calf
swelling or tenderness, and he was
neurovascularly intact. (Id.)
On December 2, 2009, one week after
plaintiff’s arthroscopic surgery, plaintiff
returned to Dr. Cherney. (Id. at 211, 294.)
Dr. Cherney stated that plaintiff’s symptoms
were improving, but he was still totally
disabled from work. (Id. at 211.) Plaintiff
was still only partial weight bearing, but
plaintiff’s range of motion was improving,
and it was 7-105 degrees. (Id.) Plaintiff had
no swelling, minimal joint line tenderness,
no calf swelling or tenderness, and his distal
neurovascular was intact. (Id.)
On June 2, 2010, while on duty as a
firefighter, plaintiff injured his lower back
again after digging through debris and
moving waterlogged furniture during a fire
investigation. (Id. at 169, 242, 314, 326.)
On June 10, 2010, plaintiff returned to
Dr. Marchisella.
(Id. at 248.)
Dr.
Marchisella diagnosed plaintiff with a back
strain or sprain, and recommended physical
therapy, Advil, and Cyclobenzaprine. (Id.)
Dr. Marchisella also indicated that plaintiff’s
current duty status was “ML,” effective June
6, 2010. (Id.)
On December 18, 2009, plaintiff
returned to Dr. Ferriter. (Id. at 249.) Dr.
Ferriter diagnosed plaintiff with a meniscusmedial tear, and indicated that plaintiff’s
current duty status was “ML,” effective
November 14, 2009. (Id.)
On June 19, 2010, plaintiff saw Dr. M.
Weiden. (Id. at 247.) In his examination
report, Dr. Weiden commented that plaintiff
had a history of lower back pain and could
not bend as a result of a new injury. (Id.)
Further, plaintiff was being treated for
GERD. (Id.) Dr. Weiden’s diagnosis was
as follows: back strain or sprain, surgery
arthroscopic, and gastroesophagitis. (Id.)
Dr. Weiden also indicated that plaintiff’s
current duty status was “ML,” effective June
6, 2010. (Id.)
On January 18, 2010, plaintiff saw Dr.
Konstantin
Tarashansky
for
gastroesophageal reflux disease (“GERD”).
(Id. at 230.) Dr. Tarashansky performed a
laryngoscopy on plaintiff, and found that his
postcricoid and arytenoids were abnormal.
(Id.)
On January 22, 2010, plaintiff saw Dr.
Peter Weil for GERD. (Id. at 237-38.) In
his report, under the findings and impression
sections, Dr. Weil indicated VAC syndrome
and GERD (id. at 237); the rest of the report
was illegible.
A June 22, 2010 MRI of plaintiff’s
lumbar spine showed: multiple small
Schmorl’s nodes from the level of L1
through L4; either minimal disc bulge or a
small central disc herniation at T11-T12;
minimal disc bulge at L3-4; central and
slightly right paracentral disc herniation at
L4-5; and minimal posterior subluxation
with small central disc herniation at L5-S1.
(Id. at 169, 172, 242, 260-61.)
On February 16, 2010, plaintiff returned
to Dr. Tarashansky. (Id. at 231-32.) Dr.
Tarashansky conducted both physical and
endoscopic examinations. (Id. at 231.)
However,
the
impressions
and
recommendations sections from the report
related to those exams were illegible. (Id. at
232.)
On June 27, 2010, plaintiff returned to
Dr. Ferriter. (Id. at 246.) In his examination
report, Dr. Ferriter commented that plaintiff
5
was 4mm at the firm endpoint; McMurray
was negative; and plaintiff had the following
symptoms: no swelling or effusion,
moderate patellofemoral crepitus through
active flexion extension, no LPCS present,
some pain present on patella compression,
no definite joint line tenderness, no tibial
drop back, and no calf swelling or
tenderness. (Id.) Dr. Cherney reviewed an
MRI of plaintiff’s right knee and found
some degenerative changes in the femoral
sulcus with slight chondritic changes over
the median ridge of the patella, and found
that trace effusion was present. (Id.) Dr.
Cherney did not recommend surgery, but
rather a home exercise program and antiinflammatory medication. (Id. at 210.)
had a back strain or sprain, was still having
pain and trouble sitting, and plaintiff’s pain
was present with flexion and extension.
(Id.) Dr. Ferriter’s diagnosis was as follows:
back strain or sprain, surgery arthroscopic,
and gastroesophagitis. (Id.) Dr. Ferriter
also indicated that plaintiff’s current duty
status was “ML,” effective June 6, 2010.
(Id.)
On July 3, 2010, plaintiff returned to
Dr. Ferriter. (Id. at 245.) In his examination
report, Dr. Ferriter commented: still lower
back pain, no leg pain, no numbness, and
limited motion of spine present with spasm.
(Id.) Dr. Ferriter’s diagnosis was as follows:
back strain or sprain, surgery arthroscopic,
and gastroesophagitis. (Id.) Dr. Ferriter
also indicated that plaintiff’s current duty
status was “ML,” effective June 6, 2010.
(Id.)
In a letter dated July 15, 2010, Dr.
Cherney stated, “The prognosis for return to
full duty as a fire marshal is poor. The
changes and disability status regarding
[plaintiff’s] right knee are permanent in
nature.” (Id. at 297.)
A July 6, 2010 MRI of plaintiff’s right
knee showed a longitudinal oblique tear of
the posterior horn of the medial meniscus,
irregularity of the body of the medial
meniscus, joint effusion with associated
diffuse synovitis, and cartilage loss in the
patellofemoral compartment. (Id. at 168,
174, 242, 258-59, 297.)
On July 16, 2010, plaintiff saw Dr.
Thomas J. Dowling for pain in his lower
back and neck. (Id. at 171, 314-19, 326-28.)
Plaintiff reported his pain level as an 8/10 on
the visual analog scale. (Id. at 314, 326.)
Following
a
lumbosacral
spinal
examination, Dr. Dowling commented that
plaintiff had no deformity, no tenderness or
spasm, and no evidence of peripheral
vascular disease, and that his range of
motion was within normal limits, albeit he
did have pain with range of motion. (Id. at
315.)
Following a lower extremity
examination, Dr. Dowling commented that
plaintiff had no tension signs and his gait
was normal. (Id.) Dr. Dowling diagnosed
plaintiff with mechanical discogenic low
back pain and an underlying herniated disc
at L4-5 and L5-S1, further commenting that
physical impairment was “temporary total.”
(Id. at 315-16.) Dr. Dowling then
recommended physical therapy two-to-three
On July 12, 2010, plaintiff returned to
Dr. Cherney. (Id. at 209-10, 294-95, 297.)
Dr. Cherney indicated that, after right knee
arthroscopic surgery and several months of
physical therapy, plaintiff returned to work
as a fire marshal at the end of January 2010.
(Id. at 209.)
Nevertheless, plaintiff’s
symptoms continued to worsen with
increased activity, and plaintiff had pain
going down stairs, had pain walking
downhill, had difficulty kneeling and
squatting, and had increased crepitus. (Id.)
Plaintiff did some home exercises including
using a bike, but was unable to return to
running. (Id.) After examination, Dr.
Cherney noted that plaintiff’s quad strength
was in the good to excellent range; Lachman
6
times per week for the lumbar spine for six
weeks, epidural steroid injections, and a
Medrol-Dosepak. (Id. at 316, 327-29.)
arthroscopic surgery of the right knee, posttraumatic patellofemoral arthrosis of the
right knee, and a herniated disc of the
lumbar spine L4-5 and disc bulge T11-12.
(Id. at 168-69.)
The Committee
recommended that plaintiff had a partial
permanent disability, and that he was unfit
for fire duty. (Id. at 169.) The Committee
also recommended that plaintiff be put on
light duty with limited service. (Id.) The
examination report indicated that plaintiff
continued to have pain and stiffness, had
difficulty with stairs, had palpable crepitus,
and was unable to kneel or squat. (Id. at
242.)
On July 19, 2010, plaintiff saw Dr.
Dutkowsky.
(Id. at 244.)
In his
examination
report,
Dr.
Dutkowsky
commented: right knee strain, crepitus rom
intact, no effusion or instability, and mild
medial collateral lig laxity. (Id.) Dr.
Dutkowsky’s diagnosis was as follows: back
strain or sprain, surgery arthroscopic, and
gastroesophagitis. (Id.) Dr. Dutkowsky also
indicated that plaintiff’s current duty status
was “ML,” effective July 15, 2010. (Id.)
On August 2, 2010, plaintiff saw Dr.
Danna Mannor. (Id. at 243.) Dr. Mannor’s
diagnosis was as follows: back strain or
sprain,
surgery
arthroscopic,
and
gastroesophagitis.
(Id.)
Dr.
Mannor
recommended that plaintiff see the FDNY
Pension Fund’s Medical Board (“the
Medical Board”), and indicated that
plaintiff’s current duty status was “LD,” or
light duty, effective July 6, 2010. (Id.)
On August 24, 2010, plaintiff saw Dr.
Alan M. Schuller for GERD. (Id. at 155.)
Dr. Schuller performed an upper endoscopy
on plaintiff, and the results were
unremarkable. (Id. at 279.) Dr. Schuller
also performed a colonoscopy on plaintiff,
which showed a serrated adenoma. (Id.)
On September 27, 2010, plaintiff
returned to Dr. Cherney. (Id. at 293-96.) In
his report, Dr. Cherney indicated that
plaintiff had a range of motion of 5-90
degrees, tenderness over the medial joint
line, and slight decreased patella excursion
with no pain on patella compression. (Id. at
293.) Additionally, plaintiff’s Lachman was
4mm with no drop back, his distal
neurovascular was intact, and there were
4mm of medial and lateral opening on stress.
(Id.) Plaintiff had pain with stairs and
walking downhill, was unable to run, and
had difficulty kneeling and squatting. (Id. at
295-96.) Dr. Cherney diagnosed plaintiff
with right knee displaced bucket handle tear
medial meniscus, right knee chondrosis of
patella and femoral sulcus, right knee
chondrosis medial femoral condyle, and
right knee 3 compartment synovitis. (Id. at
295.) Because plaintiff’s knee was locked
and he was consequently walking with a
limp wearing a hinged knee brace, Dr.
Additionally, at some point during
August 2010, plaintiff saw Dr. Mark
Spadaro from the FDNY Bureau of Health
Services World Trade Center (“WTC”)
Program. (Id. at 157.) Dr. Spadaro
prescribed Aciphex (Rabeprazole) and
Pantoprazole (Protonix). (Id. at 157, 160,
163.)
2. Medical Evidence from August 19,
2010 to June 3, 2014
On August 19, 2010, plaintiff stopped
working as a firefighter and his disability
allegedly began. (Id. at 48-49, 115, 127,
130-31, 151.) In a letter to Fire
Commissioner Salvatore Cassano, dated
August 23, 2010, Chief Medical Officer
Kerry J. Kelly, M.D. stated that an FDNY
Medical
Board
Committee
(“the
Committee”) diagnosed plaintiff with medial
meniscus tear of the right knee, status post
7
Cherney
recommended
arthroscopy. (Id. at 293.)
right
reported a pain level of 5/10 on the visual
analog scale. (Id. at 316, 323.) Dr. Dowling
reported that a cervical spine exam revealed
no muscle spasm or tenderness, and that
plaintiff was neurologically intact. (Id. at
316, 324.) Dr. Dowling added that plaintiff
had pain with extensions, which radiated
into the left upper extremity, a cervical
range of motion within normal limits, a
positive Spurling’s sign on the left and
negative on the right, symmetric reflexes,
normal sensation, normal strength, and a
normal gait. (Id.) Dr. Dowling diagnosed
plaintiff with cervical radiculopathy due to
underlying degenerative disc disease leading
to foraminal stenosis of the cervical spine.
(Id. at 316.) Dr. Dowling concluded that
plaintiff’s physical impairment was total,
and recommended cervical translaminal
epidural steroid injections, Omeprazole, and
a Medrol-Dosepak. (Id. at 316, 324.)
knee
On January 6, 2011, Dr. Basil
Dalavagas, an impartial orthopedic specialist
consultant for the Medical Board provided
the Medical Board with an opinion that
plaintiff was permanently disabled for full
fire duty due to his right knee. (Id. at 167.)
On March 3, 2011, the Medical Board
unanimously recommended that plaintiff be
granted an accident disability retirement
based on his October 2, 2009 injury. (Id.)
The Medical Board also recommended that
plaintiff’s
application
for
disability
retirement under the provisions of the WTC
Program be denied. (Id.) Subsequently,
based on this recommendation, in a letter
dated March 3, 2011, the Board of Trustees
of the FDNY Pension Fund awarded
plaintiff an accident disability retirement
and denied plaintiff’s application for
disability retirement under the World Trade
Center Bill. (Id. at 165.)
On April 5, 2012, while plaintiff was
preoccupied watching his son’s hockey
game, an individual collided with him. (Id.
at 205.) Plaintiff fell onto the ice, injuring
his left shoulder. (Id.)
A February 23, 2012 MRI of plaintiff’s
cervical spine showed: mild degenerative
changes, including degenerative spurring
and slight interspace narrowing, disc
bulging, and bilateral mild foraminal
narrowing, at C4-5; broad-based central
right-sided spur/disc complex, moderate to
severe focal right foraminal narrowing, mild
to moderate left foraminal narrowing, and
slight impingement on the right side of the
spinal cord at C5-6; degenerative spurring
and interspace narrowing, shallow central
right-sided spur/disc complex, moderate to
severe focal proximal right foraminal
narrowing, and moderate left foraminal
narrowing at C6-7. (Id. at 173, 269-70,
316.)
On April 13, 2012, plaintiff saw Dr.
Jordan Kerker for pain in his left shoulder.
(Id. at 156, 205-06.) In his report, Dr.
Kerker indicated that plaintiff had been
having pain anteriorly, which was not
remitting and was mostly over the anterior
rotator cuff and over the subscapularis. (Id.
at 205.) After physical examination, Dr.
Kerker noted that plaintiff had no atrophy,
swelling, or deformity to the left shoulder,
no tenderness to touch over his ac joint, no
clear ac separation or dislocation, full
abduction and internal and external rotation,
and no deficits or weakness in his
supraspinatus or infraspinatus. (Id. at 206.)
Plaintiff’s forward flexion was limited to
about 70 degrees, but, passively, he had a
full range of motion. (Id.) Dr. Kerker
indicated that plaintiff was neurovascularly
On March 12, 2012, plaintiff returned to
Dr. Dowling. (Id. at 316, 323-25.) Plaintiff
complained of neck pain radiating from the
left shoulder and left arm with associated
numbness and tingling to the left arm, and
8
repair his rotator cuff. (Id. at 173-74, 216,
267-68.) The procedure was performed by
Dr. Kerker at the Melville Surgery Center in
Melville, New York. (Id. at 267-68.)
intact, and had a negative speed test and a
positive O’Brien test. (Id.) Dr. Kerker also
reviewed two x-rays of plaintiff’s left
shoulder,
commenting
that
they
demonstrated a 2B acromial arch and
concentric glenohumeral joint, but no
advanced degenerative changes. (Id.) Dr.
Kerker recommended that plaintiff get an
MRI of his left shoulder and take antiinflammatories. (Id.)
Approximately one week after the
surgery, on May 16, 2012, plaintiff returned
to Dr. Kerker. (Id. at 200-01.) In his report,
Dr. Kerker noted that plaintiff was “doing
okay.” (Id. at 200.) He also indicated that
plaintiff had a large avulsion of all three
tendons, significant pain, no residual
swelling or effusion, limited motion in the
shoulder, and good function of the elbow,
hand, and wrist. (Id. at 200-01.) Plaintiff
was neurovascularly intact and his
compartments were soft. (Id. at 201.) Dr.
Kerker also reviewed two X-rays of
plaintiff’s left shoulder, commenting that
they
demonstrated
well-performed
acromioplasty, concentric glenohumeral
joint, and no advanced degenerative
changes. (Id.) Dr. Kerker recommended
that plaintiff continue wearing the sling for
three more weeks. (Id.)
An April 19, 2012 MRI of plaintiff’s
left shoulder showed a full-thickness tear of
the supraspinatus tendon with 1.7 cm of
retraction, and a high grade partial tearing of
the subscapularis tendon without evidence
of complete rupture. (Id. at 173, 186-87.)
On April 23, 2012, plaintiff had a phone
conversation with Dr. Kerker to discuss the
MRI results. (Id. at 204.) Dr. Kerker told
plaintiff the MRI was positive for a fullthickness tear of the supraspinatus tendon
and a high-grade partial tear of the
subscapularis. (Id.) Dr. Kerker and plaintiff
discussed the risks and benefits of surgical
intervention. (Id.) On May 4, 2012,
plaintiff returned to Dr. Kerker. (Id. at 20203.) In his report, Dr. Kerker noted that
plaintiff had a subscapularis partial tear and
a full-thickness tear of the supraspinatus.
(Id. at 202.)
Plaintiff had pain and
tenderness with internal and external
rotation of the shoulder, severe weakness
with supraspinatus testing, and an equivocal
speed test and positive O’Brien test, but was
nonetheless neurovascularly intact. (Id. at
203.)
Dr. Kerker and plaintiff again
discussed the risks and benefits of surgical
arthroscopy. (Id. at 202.) Dr. Kerker also
told plaintiff that he would need to be in a
sling for four weeks, and full recovery
would take six months. (Id.) Plaintiff
scheduled surgery for the following week.
(Id. at 203.)
Approximately one month after the
surgery, on June 6, 2012, plaintiff returned
to Dr. Kerker. (Id. at 198-99.) In his report,
Dr. Kerker noted that plaintiff was out of the
sling, ready to start physical therapy, and
“doing quite well.” (Id. at 198.) Dr. Kerker
also indicated that plaintiff had very little
motion, secondary to pain and apprehension,
no gross motor or sensory deficits,
symmetric reflexes, good function of the
elbow, hand and wrist, and his
compartments were soft. (Id. at 199.)
On June 20, 2012, plaintiff was
admitted to the emergency room of the St.
Catherine of Sienna Hospital due to gastro
pain. (Id. at 158, 217.) Plaintiff was
prescribed medication and then released.
(Id. at 158.)
On May 8, 2012, plaintiff underwent
arthroscopic surgery on his left shoulder to
Approximately three months after his
surgery, on July 26, 2012, plaintiff returned
9
consultation. (Id. at 171, 188-192.) Dr.
Duffy indicated that, during the session,
plaintiff’s level of consciousness was not
impaired and his attention and concentration
were not impaired. (Id. at 190-91.) She also
indicated that plaintiff’s mood was
predominately one of moderate manifest
depression, anxiety, and agitation. (Id. at
191.) In her report, Dr. Duffy wrote that
plaintiff experienced moderate to severe
symptoms as a consequence of his workrelated
incident,
including
manifest
depression,
anxious
irritable
mood,
increased stress and tension, insomnia,
fatigue, as well as diminished self-esteem
and emotional coping capability. (Id.) She
added that plaintiff’s injuries and subsequent
disability from his accident in August 2010
were significantly interfering in his
social/emotional/occupational functioning.
(Id.) Dr. Duffy recommended that plaintiff
would benefit from psychotherapeutic
intervention, should attend individual
therapy, should be referred to a psychiatrist
to determine if he was a candidate for
psychotropic medication, and would benefit
from stress management training and
cognitive therapy focusing on interpersonal
communication and problem-solving skills.
(Id.)
to Dr. Kerker. (Id. at 196-97.) In his report,
Dr. Kerker noted that plaintiff was “doing
quite well” and “progressing nicely in
therapy.” (Id. at 196-97.) Dr. Kerker
indicated that plaintiff had 110 degrees of
forward flexion and abduction, internal
rotation to the posterior hip, and a passive
range of motion of 130 to 140 degrees of
forward active flexion and abduction. (Id. at
197.) Dr. Kerker added that plaintiff had
improving strength in his rotator cuff and
was neurovascularly intact. (Id.)
On December 4, 2012, plaintiff returned
to Dr. Dowling. (Id. at 317, 320-22.)
Plaintiff complained of neck pain, left
shoulder pain, left arm pain, left hand
numbness and tingling, and constant lower
back pain that was mechanical in nature.
(Id. at 317.) Plaintiff also reported his pain
level as a 6/10 on the visual analog scale.
(Id. at 317, 320.) After a cervical spine
examination, Dr. Dowling indicated that
plaintiff had some spasm on the left side,
tenderness on the left side of the trapezius
and paraspinals, a painful range of motion
that was within normal limits, and a positive
Spurling’s sign on the left and negative on
the right. (Id. at 317, 321.) After a lower
back examination, Dr. Dowling indicated
that plaintiff had no spasm and no
tenderness, pain with flexion, a normal
range of motion, and a normal gait. (Id. at
317, 321.) Dr. Dowling commented that
plaintiff was neurologically intact, but his
physical impairment was total. (Id. at 317,
322.) Dr. Dowling diagnosed plaintiff with
discogenic low back pain with an underlying
herniated disc, cervical radiculopathy, and
underlying degenerative disc disease and
foraminal stenosis. (Id. at 318.) Dr.
Dowling then recommended that plaintiff
take a Medrol Dosepak followed by Mobic
(Meloxicam). (Id. at 317, 322.)
Approximately eight months after his
arthroscopic surgery, on December 12,
2012, plaintiff returned to Dr. Kerker. (Id.
at 194-95.) In his report, Dr. Kerker stated
that plaintiff was “doing extremely well.”
(Id. at 194-95.) Dr. Kerker indicated that
plaintiff had excellent motion and good
strength, full forward flexion and abduction,
slightly restricted internal rotation, excellent
external rotation, and good strength in the
rotator cuff. (Id. at 194-95.) Dr. Kerker
added that plaintiff was neurovascularly
intact overall and had no real restrictions,
other than lifting heavy weights. (Id. at
195.) Dr. Kerker concluded by stating that
On December 6, 2012, plaintiff saw Dr.
Jennifer N. Duffy, Ph.D. for a psychological
10
but had pain with resisted extension. (Id.)
Plaintiff complained of pain in his right
elbow, and Dr. Kerker diagnosed it as tennis
elbow and gave plaintiff a shot of Celestone
and Marcaine. (Id.) Dr. Kerker then
recommended that plaintiff continue
exercising his left shoulder and follow up
with Dr. Kerker as needed. (Id.)
plaintiff could return to normal activities.
(Id.)
On December 17, 2012, plaintiff
returned to Dr. Cherney. (Id. at 208.) In his
report, Dr. Cherney noted that plaintiff had
Grade III changes in the patellofemoral joint
and medial compartment and symptoms of
varying degrees of severity from no pain to
moderate pain. (Id.) Further, plaintiff’s
range of motion was full, quad strength was
excellent, and stability was normal. (Id.)
Dr. Cherney also noted that there was no
patellofemoral crepitus, no pain on
compression, no joint line tenderness, and
that there was trace increased varus equal to
the opposite knee. (Id.) Dr. Cherney
indicated that plaintiff had limited his
activities to minimal impact or no impact
sports, and that plaintiff swam, biked, and
did yoga. (Id.) Nevertheless, Dr. Cherney
suggested that plaintiff use a hinged knee
brace for certain activities. (Id.)
On April 11, 2013, plaintiff saw Dr.
Samir Dutta. (Id. at 216-19.) The Division
of Disability Determination had referred
plaintiff to Dr. Dutta for an orthopedic
examination. (Id. at 216.) In his report, Dr.
Dutta noted that plaintiff had experienced
pain in his neck for ten years, and that the
pain had worsened during the prior two
years. (Id.) Dr. Dutta also noted that
plaintiff had experienced lower back pain
for twenty-five years, a problem with his left
shoulder for one year, and had injured his
right shoulder fifteen years prior. (Id.)
Regarding plaintiff’s general appearance,
gait, behavior, and station, Dr. Dutta
commented that plaintiff appeared to be in
no acute distress, had a slight limp on the
right side, could walk on his heels and toes
without difficulty, and could squat halfway.
Dr. Dutta further commented that plaintiff’s
station was normal, plaintiff used no
assistive device, needed no help changing
for the exam or getting on and off the exam
table, and was able to rise from a chair
without difficulty.
(Id. at 217-18.)
Regarding plaintiff’s cervical spine, Dr.
Dutta commented: flexion 30 degrees,
extension 30 degrees, lateral flexion and
rotation 50 degrees bilaterally, no cervical or
paracervical pain or spasm, and no trigger
points. (Id. at 218.) Regarding plaintiff’s
upper extremities, Dr. Dutta commented:
shoulder forward elevation bilaterally
degrees, abduction 110 degrees, full
adduction, internal rotation, external rotation
bilaterally, no joint inflammation, effusion,
or instability, strength 5/5 in proximal and
distal muscles, no muscle atrophy, and no
On February 24, 2013, plaintiff was
admitted to the emergency room of the St.
Catherine of Sienna Hospital due to gastro
pain. (Id. at 158, 217.) Plaintiff was
prescribed medication and then released.
(Id. at 158.)
Approximately one year after plaintiff’s
arthroscopic surgery, on April 5, 2013,
plaintiff returned to Dr. Kerker. (Id. at 156,
264-66.) In his report, Dr. Kerker noted that
plaintiff was still developing some stiffness
and decreased range of motion, and was still
having some mild pain, but had no
numbness or tingling, and “worked out a
lot.” (Id. at 194-95, 264.) After physical
examination, Dr. Kerker noted that plaintiff
had no residual swelling or effusion, full
forward flexion and abduction, excellent
strength in the rotator cuff and
subscapularis, no deficits or weakness
overall, a negative drop-arm sign, and no
pain with resisted flexion. (Id. at 265.)
Further, plaintiff was neurovascularly intact,
11
social interactions, no recurrent thoughts of
death or suicide, no severe symptoms of a
major depressive disorder, some anxiety,
some nightmares and flashbacks of his
experiences of 9/11, but is not experiencing
any significant ongoing trauma related
symptoms, and no symptoms of panic,
mania, or formal thought disorder. (Id. at
224.) Dr. Acer later added that there did not
appear to be significant limitations in
plaintiff’s ability to follow and understand
directions and instructions, appropriately
perform tasks, or maintain attention and
concentration, but that plaintiff had some
minor difficulties dealing with stress. (Id. at
225.) Dr. Acer diagnosed plaintiff with
adjustment disorder, undifferentiated, mild,
and concluded her report by stating that,
overall, the results of the evaluation did not
appear to be consistent with severe
psychiatric issues that would hamper
functioning. (Id.) She did, however, note
that plaintiff might benefit from some
individual counseling. (Id. at 226.)
sensory abnormality.
(Id.)
Regarding
plaintiff’s thoracic and lumbar spines, Dr.
Dutta commented: flexion 70 degrees,
lateral bending 20 degrees, bilateral
extension 20 degrees, rotation 20 degrees
bilaterally, no SI joint or sciatic notch
tenderness, no spinal or parspinal
tenderness, no scoliosis or kyphosis, slight
spasm noted, SLR test negative bilaterally,
and no trigger points. (Id.) Regarding
plaintiff’s lower extremities, Dr. Dutta
commented: knee flexion right 110 degrees,
left knee 120 degrees flexion, strength 5/5 in
proximal and distal muscles bilaterally, no
muscle atrophy, no sensory abnormality, and
no joint effusion, inflammation, or
instability. (Id.) Dr. Dutta then provided
the following diagnosis: post repair
supraspinatus tendon, left shoulder, post
repair right shoulder subscapularis, post
meniscectomy, medial, right knee, history of
GERD, posttraumatic stress disorder, history
of depression, acid reflux, degenerative disc
disease from C2 through C7, and herniated
disc of L4-L5. (Id. at 218-19.) Dr. Dutta
concluded by commenting that plaintiff’s
prognosis was stable, that plaintiff had mild
limitations for sitting and standing, and that
plaintiff had moderate limitation for
prolonged walking and lifting heavy weight
on a continuous basis. (Id. at 219.)
On June 21, 2013, M. Graff, Ph.D.
reviewed the evidence and provided a state
agency
Medically
Determinable
Impairments
and
Severity
(“MDI”)
assessment. (Id. at 53-54.) Dr. Graff stated
that plaintiff’s restriction of activities of
daily living were mild, plaintiff’s difficulties
in maintaining social functioning were mild,
plaintiff had no difficulties maintaining
concentration, persistence, or pace, and
plaintiff had no repeated episodes of
decompensation of extended duration. (Id.
at 53.) Dr. Graff concluded stating that
plaintiff’s impairment or combination of
impairments were non-severe. (Id. at 54.)
On June 7, 2013, plaintiff saw
psychologist Kathleen Acer, Ph.D. for an
evaluation. (Id. at 223-26.) In her report,
Dr. Acer left the longitudinal history section
blank, but commented as follows in the
psychiatric history section: plaintiff reported
some issues related to his experiences in
9/11, he has never been in regular treatment,
he had no current counseling or treatment,
and he stated he was starting a couples
therapy program. (Id. at 223.) Regarding
plaintiff’s current functioning, Dr. Acer
commented: he has some difficulty falling
and staying asleep at times, some decrease
in motivation, tendency to prefer avoiding
Also on June 21, 2013, single
decisionmaker A. Knight (“SDM Knight”)
reviewed the evidence and provided a state
agency RFC assessment. (Id. at 55-57.)
After finding that plaintiff had exertional
and postural limitations, SDM Knight rated
12
each limitation. (Id. at 55-56.) SDM Knight
stated that plaintiff could occasionally lift
and/or carry (including upward pulling) 20
pounds, frequently lift and/or carry
(including upward pulling) 10 pounds, stand
and/or walk (with normal breaks) for a total
of approximately six hours in an eight-hour
workday, and push and/or pull without
limitation (including operation of hand
and/or foot controls), other than shown for
lift and/or carry. (Id. at 55.) SDM Knight
also stated that plaintiff could frequently
climb ramps/stairs, occasionally climb
ladders/ropes/scaffolds, frequently balance,
occasionally stoop, occasionally kneel,
occasionally crouch, and frequently crawl.
(Id. at 55-56.) SDM Knight also found that
plaintiff had no manipulative limitations, no
visual limitations, no communicative
limitations,
and
no
environmental
limitations. (Id. at 56.) SDM Knight
determined that plaintiff did not have the
RFC to perform his skilled past relevant
work as a firefighter.
(Id. at 56-57.)
However, SDM Knight found that plaintiff
was not limited to unskilled work because of
his impairments, and that plaintiff
demonstrated the maximum sustained work
capability for light work based on the seven
strength factors of his physical RFC. (Id. at
57.) In sum, based on the documented
findings, SDM Knight determined that
plaintiff was not disabled. (Id.)
upper endoscopy and a colonoscopy on
plaintiff. (Id. at 271-77, 282-83.) Both
impressions were normal. (Id. at 271-72,
282.)
Dr. Schuller recommended that
plaintiff
continue
taking
Aciphex
(Rabeprazole) and return for another
colonoscopy in five years. (Id. at 282.)
On February 10, 2014, plaintiff returned
to Dr. Cherney. (Id. at 292.) In his report,
Dr. Cherney indicated that plaintiff
continued to have pain and stiffness, mostly
over the medial aspect of the right knee of
varying degrees of severity, and increasing
medial pain in the left knee. (Id.) With
respect to plaintiff’s right knee, Dr. Cherney
commented that range of motion showed a
lack of 5 degrees flexion, there was some
increasing
varus,
there
was
no
patellofemoral
crepitus,
there
was
tenderness present over the medial joint line,
plaintiff’s strength was excellent, and
plaintiff’s stability was normal. (Id.) Dr.
Cherney indicated that plaintiff’s pain in his
right knee increased with any increased level
of activity, but plaintiff was still able to do
low impact fitness-type exercise. (Id.) With
respect to plaintiff’s left knee, Dr. Cherney
commented that there was essentially full
range of motion, some tenderness over the
medial joint line, slight increased varus
alignment, no patellofemoral crepitus, no
pain on compression, and plaintiff’s stability
was normal.
(Id.)
Dr. Cherney
recommended that plaintiff refrain from all
jumping or impact sports or activity and any
heavy lifting. (Id.) Dr. Cherney concluded
that with respect to plaintiff’s right knee, he
had a permanent disability. (Id.)
On August 26, 2013, plaintiff returned
to Dr. Schuller and complained of heartburn.
(Id. at 280.) Dr. Schuller performed a
colonoscopy and endoscopy on plaintiff.
(Id. at 155, 278-81.) Dr. Schuller also
diagnosed plaintiff with colonic polyps and
GERD, and recommended that he continue
taking Aciphex (Rabeprazole) and return for
another colonoscopy and endoscopy. (Id. at
281.)
On February 20, 2014, plaintiff returned
to Dr. Dowling. (Id. at 317.) Plaintiff
complained of neck and back pain with
numbness into his left hand around the
digits. (Id.) With respect to plaintiff’s neck,
Dr. Dowling commented that plaintiff had
pain on Valsalva maneuver, and his pain
On September 23, 2013, plaintiff
returned to Dr. Schuller, who performed an
13
interruption. (Id. at 309.) Plaintiff could sit,
stand, and walk for only two hours in an
eight-hour workday. (Id.) Plaintiff did not
require the use of a cane to walk. (Id.)
Plaintiff could climb stairs and ramps, stoop,
kneel, and crouch occasionally, but could
never climb ladders or scaffolds, balance, or
crawl. (Id. at 311.) Further, Dr. Dowling
indicated that plaintiff could perform
activities like shopping, travelling without a
companion for assistance, walking without
using a wheelchair, walker, cane, or
crutches, walking a block at a reasonable
pace on rough or uneven surfaces, using
standard public transportation, climbing a
few steps at a reasonable pace with the use
of a single hand rail, preparing a simple
meal and feeding himself, caring for
personal hygiene, and sorting, handling, and
using paper/files. (Id. at 313.) Dr. Dowling
concluded that plaintiff’s limitations lasted
or would last for 12 consecutive months.
(Id.)
was intermittent but worse at night
depending on his neck position. (Id.) Dr.
Dowling indicated that plaintiff did not have
any radiating pain, and plaintiff rated his
pain as a 4/10 on the visual analog scale.
(Id.) After a cervical spine examination, Dr.
Dowling noted that plaintiff had no spasm,
some tenderness and pain with range of
motion, a full range of motion, a positive
Spurling’s sign on the left, which
reproduced neck pain only, a negative
Lhermitte’s sign, a negative right sided
Spurling’s sign, and a full range of motion
of both shoulders. (Id. at 318.) Radiographs
of plaintiff’s cervical spine showed
degenerative changes at C4-5, C5-6, and C67 and straightening consistent with spasm.
(Id.)
After a lumbosacral spinal
examination, Dr. Dowling indicated that
plaintiff had no deformity, no tenderness or
spasm, pain with range of motion during
extension and flexion, a range of motion
diminished by 10 degrees, a normal spinal
rhythm, and a normal gait. (Id.) Plaintiff
was neurologically intact in both the upper
and lower extremities. (Id.) Dr. Dowling
diagnosed plaintiff with cervical foraminal
stenosis, underlying disc disease, cervical
radiculopathy, and discogenic low back
pain, with underlying herniated disc. (Id.)
Dr. Dowling recommended that plaintiff
take Mobic (Meloxicam), get an MRI, and
return for an evaluation for epidural steroid
injections. (Id. at 319.)
On March 11, 2014, plaintiff saw
Anthony Wong, M.D. for a skin
examination. (Id. at 304-05.) Dr. Wong
identified a basal cell carcinoma on
plaintiff’s face and recommended that
plaintiff schedule Mohs surgery to remove
it. Plaintiff agreed. (Id.)
On March 19, 2014, Dr. Wong
performed a Mohs excision of a basal cell
carcinoma on plaintiff’s nose. (Id. at 30203, 306-07.) In his report, Dr. Wong
indicated that plaintiff tolerated the
procedure well, and recommended that
plaintiff return to Dr. Wong’s office in one
week. (Id. at 303.)
On March 3, 2014, Dr. Dowling
completed an SSA Medical Source
Statement of Ability to Do Work-Related
Activities for plaintiff. (Id. at 308-13.) Dr.
Dowling indicated that plaintiff could lift up
to 20 pounds occasionally and 21-50 pounds
rarely, but could never lift 51-100 pounds.
(Id. at 308.) Plaintiff could also carry up to
20 pounds occasionally and 21-50 pounds
rarely, but could never carry 51-100 pounds.
(Id.) Plaintiff could sit, stand, and walk for
only 30 minutes at a time without
One week later, on March 26, 2014,
plaintiff returned to Dr. Wong. (Id. at 30001.) Dr. Wong indicated in his report that
there were no concerns, and recommended
that plaintiff return in four weeks. (Id. at
300.)
14
On June 3, 2014, Dr. Duffy completed a
SSA Medical Source Statement of Ability to
Do Work-Related Activities for plaintiff.
(Id. at 337-40.) In the statement, she
indicated that plaintiff had a mild restriction
for understanding, remembering, and
carrying out simple instructions; a moderate
restriction for making judgments on simple
work-related decisions; a marked restriction
for understanding, remembering, and
carrying out complex instructions; and a
marked restriction for making judgments on
complex work-related decisions. (Id. at
337.) Further, she indicated that plaintiff
had a marked restriction for interacting
appropriately with the public, supervisors,
and co-workers, and a marked restriction for
responding appropriately to usual work
situations and changes in a routine work
setting. (Id. at 338.) In an attachment, Dr.
Duffy explained that, due to his chronic pain
and severely depressed mood, plaintiff was
easily distracted and had difficulty
sustaining attention, and his impaired
memory and concentration would interfere
with recalling and carrying out simple tasks,
but was more pronounced with complex
tasks that require sustained attention and
higher level thinking. (Id. at 340.) In the
same attachment, Dr. Duffy also explained
that, due to plaintiff’s constant pain, he had
great difficulty coping with his limitations,
and was, thus, very irritable, easily
frustrated and overwhelmed, depressed, and
withdrawn, and would have difficulty
managing daily stressors and functioning
consistently in the work setting. (Id.)
An April 4, 2014 MRI of plaintiff’s
cervical spine showed a C5/6 disc bulge
with a right paramidline and right
intraforaminal asymmetry, a C6/7 mild disc
bulge, a C4/5 minimal bulge, and no focal
left-sided disc herniation. (Id. at 173, 33031.)
On May 2, 2014, plaintiff returned to
Dr. Duffy for a psychological re-assessment
of his level of functioning and need for
treatment. (Id. at 332-36.) In her report, Dr.
Duffy indicated that, during the session,
plaintiff’s level of consciousness was
unimpaired, and his attention and
concentration were not impaired. (Id. at
335.) She also indicated that plaintiff’s
mood was predominately one of moderate
manifest depression, anxiety, and agitation.
(Id.)
Dr. Duffy stated that plaintiff
experienced moderate to severe symptoms
as a consequence of his work-related
incident, including manifest depression,
anxious irritable mood, increased stress and
tension, insomnia, fatigue, as well as
diminished self-esteem and emotional
coping capability. (Id.) She added that,
since his initial assessment, plaintiff’s
symptoms had increased in intensity,
causing significant interference in his daily
functioning, and attributed it to his declining
health and chronic pain. (Id.) Dr. Duffy
concluded that, due to the severity of his
symptoms and their impact on his ability to
focus and sustain attention, plaintiff was not
capable of maintaining gainful employment
in any capacity. (Id.) Dr. Duffy then stated
that
plaintiff
would
benefit
from
psychotherapeutic intervention, should
attend individual therapy, should be referred
to a psychiatrist to determine if he was a
candidate for psychotropic medication,
would benefit from stress management
training and cognitive therapy focusing on
interpersonal communication and problem
solving skills, and should continue in
marriage counseling. (Id. at 336.)
C. Relevant Testimonial Evidence
During an administrative hearing held
on June 18, 2014, plaintiff testified that he
was 53 years old. (Id. at 344.) Plaintiff also
testified that he was a high school graduate,
completed two years of college, graduated
from the fire academy, and had previously
worked for FDNY. (Id.) Plaintiff indicated
15
plaintiff, he could not run, ride a bike, or
climb stairs; however, he occasionally rode
a recumbent bike. (Id. at 348-49.) Plaintiff
indicated that he would typically ride the
recumbent bike once in the morning and
once in the afternoon for 5-15 minutes,
depending on the condition of his knee and
back. (Id. at 349.) Plaintiff also testified
that, “depending on how [his] back is
feeling,” and, “depending on how [his] knee
is positioned,” he could sit for only 5-30
minutes at a time. (Id. at 356.)
that he worked for FDNY for 20 years and
retired prematurely because of “a line of
duty disability,” that entailed complications
with his right knee. (Id. at 345.) According
to plaintiff, he had a host of orthopedic
issues that had been ongoing for the past ten
years, including complications with his
neck, lower back, right knee, and left
shoulder. (Id. at 345-46.)
Plaintiff testified that he was married
with two sons. (Id. at 346.) He and his wife
cared for their children and plaintiff’s 83year-old mother. (Id. at 346-47.) Plaintiff
drove “locally,” and could “sit for 10
minutes, 20 minutes, 30 minutes,”
depending on the condition of his lower
back and neck. (Id. at 347.) Plaintiff
testified that if he “gets into a different
position every 20 minutes,” then he was
“able to get through the day with a minimum
amount of pain.” (Id.) Plaintiff added that
remaining “in one place for an extended
period of time” aggravated his lower back
and neck. (Id.) Further, depending on the
position of his neck, plaintiff said that either
a few fingers or his whole hand would turn
numb. (Id. at 347-48.) Plaintiff also
testified that his doctors told him that he had
“degenerative disc disease in the neck,” it
may “potentially get worse,” and “surgical
intervention” may be required at some point,
but, at the moment, he needed to get “a
series of cortisone injections into [his]
neck.” (Id. at 348.)
With respect to plaintiff’s left shoulder,
he testified that it gave him “a lot of trouble”
when he “tr[ied] to lay down at night.” (Id.
at 350.) Due to complications with his
shoulder, back, and neck, plaintiff found it
“very difficult to find the perfect [sleeping]
position” to keep him from “waking up all
night.” (Id.) Plaintiff also testified that he
only had “60-percent range of motion,” and
had experienced “a significant amount of
loss of strength” in his shoulder. (Id. at
351.) According to plaintiff, he could “lift
20 pounds up.” (Id. at 357.)
With respect to psychiatric issues,
plaintiff testified that he saw a psychiatrist
(id. at 351), but there is no evidence in the
record supporting that claim. Plaintiff did
see a psychologist, Dr. Duffy, who
recommended that he see a psychiatrist “to
determine if he is a candidate for
psychotropic medication.”
(Id. at 191,
336). 3 Nevertheless, according to plaintiff,
prior to seeing Dr. Duffy, he realized that he
“became somewhat antisocial,” and, after
seeing Dr. Duffy, he realized that when he
was told he had to retire, “it created some
depression.” (Id. at 353-54.) Plaintiff also
testified that he reported to the World Trade
Center site around 10:00 a.m. on the
With respect to plaintiff’s right knee, he
testified that he could not use his knee at all
until he had surgery, and “initially it was
getting better,” but after “rehab,” he had
come to terms with the fact that he could
only walk in limited amounts and he had to
be careful with what he did with his knee.
(Id. at 348, 350.) Plaintiff testified that he
could “walk up and down [his] block with
[his] kids,” but found it difficult to walk in
shopping malls. (Id. at 357.) According to
3
Further, plaintiff did not report taking any
psychotropic medications. (Id. at 133, 149-50, 15960, 163-64, 171-72, 217, 223, 264, 273, 276, 300,
302, 304, 315, 318, 320, 323.)
16
morning of September 11, 2001 in his
capacity as a firefighter, and spent “the
better part of the first 30 days” following the
attack at the World Trade Center site. (Id. at
354-55.) In his testimony, plaintiff stated
that, “I didn’t think that I had a problem
with 9/11, but once I start[ed] to talk about it
with Dr. Duffy and I guess she saw how
upset I was getting, maybe that had more of
an effect on me than I had realized at that
time.” (Id. at 354.)
maintain concentration for extended periods;
and would be able to perform activities
within a schedule, maintain attendance, and
be punctual. (Id. at 359-60.) Flomberg
confirmed that such an individual would be
able to perform work as a deli cutter/slicer,
fast-food worker, or counter attendant. (Id.
at 361-62.) Flomberg also confirmed that
those jobs exist in sufficient numbers in both
the local and national economy. (Id. at 36163.)
Darren K. Flomberg (“Flomberg”), a
vocational expert, (id. at 106-08), testified
that plaintiff’s past relevant work as a
firefighter was categorized at a very heavy
exertion level with a Skilled Vocational
Preparation rating of six. (Id. at 358-59.)
The ALJ next asked Flomberg to
consider a second hypothetical individual
with the same limitations, except this
individual could lift up to 20 pounds
occasionally and up to 10 pounds frequently;
could carry up to 20 pounds occasionally
and up to 10 pounds frequently; could sit,
stand, and walk for 30 minutes; and could
sit, stand, and walk for two hours over an
eight-hour period.
(Id. at 363-64.)
Flomberg confirmed that there would be no
jobs for such an individual. (Id. at 364.)
The ALJ asked Flomberg to consider a
hypothetical individual of the same age,
work
background,
and
educational
background as plaintiff, who could
occasionally lift 30 pounds and frequently
lift 20 pounds; could sit, stand, or walk
about six hours in an eight-hour day; could
frequently climb and balance; could
occasionally stoop, kneel, crouch, and crawl;
would not have any limitations with
reaching, handling, pushing, or pulling;
would not have any visual communicative or
environmental limitations; would be able to
be accommodated by normal breaks; would
be absent no more than one day per month;
would have no restrictions of activities of
daily living; would have mild difficulties in
social functioning; would have no difficulty
maintaining concentration, persistence and
pace, or decompensation; could understand
simple instructions, constantly respond to
supervisors and co-workers in usual work
situations, and deal with changes in the work
setting; would be able to perform simple
tasks, make simple decisions, and perform
routine and repetitive tasks; would be able to
understand, carry out, and remember
complex instructions; would be able to
The ALJ then asked Flomberg to
consider a third hypothetical individual with
the same limitations, except this individual
could occasionally bend, reach, push, and
pull with his hands; and could never climb
ladders, balance, or crawl. (Id. at 364.)
Flomberg confirmed that there would be no
jobs for such an individual. (Id.)
The ALJ next asked Flomberg to
consider a fourth hypothetical individual
with the same limitations, except this
individual could never be on unprotected
heights; could occasionally understand and
carry out complex instructions; could
occasionally make judgments; could
occasionally interact with the public,
supervisors, and co-workers; could respond
to usual work situations and changes in the
work setting; would suffer from his attention
and concentration being affected at least 20
percent of the time; and could not be on task
20 percent of the time. (Id.) Flomberg
17
confirmed that there would be no jobs for
such an individual. (Id.)
record as a whole.” Greek v. Colvin, 802
F.3d 370, 374-375 (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) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Furthermore, “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) (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.”).
II. PROCEDURAL BACKGROUND
A. Administrative History
Plaintiff filed an application for
disability insurance benefits under Title II of
the SSA on November 27, 2012, alleging
disability as of August 19, 2010. (Id. at 4849.) Plaintiff’s application for disability
insurance benefits was denied on June 24,
2013. (Id. at 62-69.) On July 1, 2013,
plaintiff requested an administrative hearing,
(id. at 70-72, 151), which was held on June
18, 2014 (id. at 81, 87, 102, 109, 111).
After that hearing, the ALJ considered
plaintiff’s case de novo and issued a
decision on July 23, 2014, finding that the
plaintiff was not disabled under the SSA.
(Id. at 8-20.) On September 20, 2014,
plaintiff requested a review of the ALJ’s
decision by the Appeals Council because he
was “unable to perform any substantial
gainful activity.” (Id. at 7.) On July 6,
2016, the Appeals Council denied plaintiff’s
request for a review. (Id. at 1-5.)
B. The Instant Case
Plaintiff commenced this lawsuit on
August 20, 2016. (ECF No. 1.) On April
17, 2017, plaintiff moved for judgment on
the pleadings.
(ECF No. 13.)
The
Commissioner submitted a cross-motion for
judgment on the pleadings on June 30, 2017.
(ECF No. 15.) On July 10, 2017, plaintiff
replied to the Commissioner’s cross-motion
for judgment on the pleadings. (ECF No.
16.) The Court has fully considered the
parties’ submissions.
IV. 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
III. 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
18
‘(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; (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)).
kind of substantial gainful work which exists
in
the
national
economy.”
Id. § 1382c(a)(3)(B).
The Social Security Regulations
establish
a five-step procedure for
determining whether a claimant is entitled to
social security benefits. See 20 C.F.R.
§§ 404.1520, 416.920. The Second Circuit
has summarized this procedure as follows:
B. The ALJ’s Ruling
At the first and second steps, the ALJ
determined that plaintiff had proved that he
had not engaged in substantial gainful
activity since August 19, 2010, the alleged
onset date of disability, and that he suffered
from “severe impairments,” namely, a
history of right knee meniscal tear statuspost surgical repair, left shoulder rotator cuff
tear status-post surgical repair, neck and low
back degenerative disc disease, and
depressive disorder. (AR at 13.)
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 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 function capacity to
perform her past relevant work.
Finally, if the claimant is unable to
perform her past relevant work, the
[Commissioner] determines whether
the claimant is capable of performing
any other work.
At step three, the ALJ determined that
plaintiff’s impairments did not fall under the
list of impairments outlined in Appendix 1
of the regulations. (Id. at 13-14.)
At the fourth step, the ALJ found that
plaintiff had the RFC to perform light work
as defined in 20 CFR § 404.1567(b). (Id. at
14.) The ALJ found the following: plaintiff
could lift/carry up to 30 pounds occasionally
and 20 pounds frequently; sit, stand, and
walk up to six hours in an eight-hour day;
occasionally stoop, kneel, crouch and crawl;
and frequently climb and balance. (Id.)
Additionally, the ALJ noted that plaintiff
could be absent no more than one day per
month; frequently interact with supervisors,
co-workers, and the general public;
constantly respond to supervision, coworkers, and usual work situations;
understand, remember and carry out
complex instructions; and make simple
work-related decisions. (Id.)
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.
In making these determinations, the
Commissioner “must consider four factors:
In reaching his conclusion, the ALJ
considered all the symptoms and the extent
19
in 2009 due to complaints of pain in his
right knee. (Id.) Dr. Cherney performed an
arthroscopic
meniscectomy
and
chondroplasty on plaintiff’s right knee on
November 24, 2009. (Id.) Approximately
seven months later, in June 2010, Dr.
Cherney stated that plaintiff continued to
experience increasing pain and loss of
function in his knee, despite surgery, and
plaintiff’s prognosis for return to full duty as
a fire marshal was poor. (Id.) Dr. Cherney
added that plaintiff would have difficulty
climbing stairs, walking downhill, running,
kneeling,
and
squatting.
(Id.)
Approximately three years after surgery, in
2012, Dr. Cherney noted that plaintiff could
swim, bike, and do yoga; however, Dr.
Cherney advised plaintiff to limit himself to
minimal impact or no-impact sports. (Id.)
Approximately five years after surgery, in
February 2014, plaintiff continued to
complain of ongoing pain and stiffness in
his right knee with increased level of
activity, yet plaintiff was still able to
perform low impact fitness-type exercise.
(Id.) Dr. Cherney advised plaintiff to refrain
from all jumping or impact sport activity
and heavy lifting. (Id.) The ALJ gave
“significant weight” to the opinion of Dr.
Cherney because it was “based on a treating
relationship, and consistent with the course
of treatment and [plaintiff’s] reported
activities.” (Id.)
to which plaintiff’s symptoms could
reasonably have been accepted as consistent
with the objective medical evidence, based
on the requirements of 20 CFR § 404.1529
and Social Security Rulings (“SSR”) 96-4p
and 96-7p. (Id. at 15.) Additionally, the
ALJ noted that he considered the opinion
evidence
in
accordance
with
the
requirements set forth in 20 CFR § 404.1527
and SSRs 96-2p, 96-5p, and 06-3p. (Id.)
In considering plaintiff’s symptoms, the
ALJ followed a two-step process. (Id. at
15.) The first step required the ALJ to
determine if there was an underlying
medically determinable physical or mental
impairment. (Id.) The second step of the
process then required the ALJ to evaluate
the intensity, persistence, and limiting
effects of plaintiff’s symptoms. (Id.) The
ALJ noted plaintiff’s alleged pain due to
multiple orthopedic injuries, as well as the
alleged existence of emotional issues,
including depression and post-traumatic
stress disorder. (Id.) In applying the twostep process, the ALJ determined that
plaintiff’s
“medically
determinable
impairments could [have] reasonably [been]
expected to cause the alleged symptoms;
however, [plaintiff’s] statements concerning
the intensity, persistence, and limiting
effects of these symptoms [were] not
entirely credible.” (Id.)
In support of his conclusion, the ALJ
relied, to varying degrees, on the opinions of
plaintiff’s treating physicians, Dr. Cherney,
Dr. Dowling, and Dr. Duffy. (Id. at 16-18.)
The ALJ also relied on the opinions of the
Medical Board, and consultative medical
examiners Dr. Dutta and Dr. Acer, as well as
plaintiff’s medical records. (Id. at 15-18.)
Although he acknowledged that
plaintiff’s orthopedic surgeon, Dr. Dowling,
“had a treating relationship with” plaintiff,
the ALJ did not rely heavily on Dr.
Dowling’s opinions. (Id.) The ALJ noted in
his determination that plaintiff began
treatment with Dr. Dowling in 2010 due to
complaints of pain in his lower back and
neck. (Id.) Dr. Dowling stated that plaintiff
exhibited a normal range of motion of the
lumbar spine without tenderness or spasm,
and prescribed physical therapy.
(Id.)
Approximately two years later, in March
The ALJ relied heavily on and gave the
most weight to the opinion of Dr. Cherney,
plaintiff’s treating orthopedic specialist. (Id.
at 16.) The ALJ noted in his opinion that
plaintiff began treatment with Dr. Cherney
20
attention were not impaired, and his mood
exhibited moderate depression, anxiety, and
agitation.
(Id.)
Dr. Duffy diagnosed
plaintiff with major depression and posttraumatic stress disorder, and recommended
psychotherapeutic
intervention,
stress
management training, and cognitive therapy.
(Id.) Approximately two years later, in May
2014, plaintiff returned to Dr. Duffy for a reassessment, in which similar findings were
made. (Id.) Dr. Duffy assessed plaintiff,
advising of various mental function
limitations. (Id. at 18.) Although the ALJ
stated that a treating relationship existed and
Dr. Duffy’s findings were “based on a
comprehensive mental status examination
and [were] consistent with the weight of the
evidence,” the ALJ chose to accord “some
weight” to the opinion of Dr. Duffy due to
the course of the medical treatment and
plaintiff’s reported daily activities. (Id.)
2012, plaintiff complained of neck pain
radiating into his left shoulder and Dr.
Dowling diagnosed plaintiff with cervical
radiculopathy due to degenerative disc
disease, and plaintiff’s symptoms resolved
shortly thereafter. (Id.) Approximately nine
months later, in December 2012, plaintiff
complained of exacerbated neck, back, and
shoulder pain. (Id.) Dr. Dowling indicated
that plaintiff had cervical spasms and,
although his neck, back, and shoulder ranges
of motion were normal, Dr. Dowling
commented that plaintiff’s impairment was
“total.” (Id.) Then, in February 2014,
plaintiff complained of intermittent neck
pain and Dr. Dowling noted that plaintiff
had some tenderness, but a full range of
motion without spasms. (Id.) Finally, in
March 2014, Dr. Dowling assessed plaintiff,
advising of various physical limitations.
(Id.) The ALJ gave “limited weight” to the
opinion of Dr. Dowling. (Id.) Although the
ALJ stated that a treating relationship
existed, he afforded little weight to Dr.
Dowling’s opinion because “treatment had
been very sporadic and irregular,” “the
findings on examination have been
essentially normal,” and “the nature of
treatment has been conservative and in no
way support[s] the significant limitations
imposed.” (Id.)
The ALJ also relied on the opinions of
the Medical Board. (Id. at 15-16.) The ALJ
noted that plaintiff’s application for accident
disability was granted, but his application
for disability retirement under the provisions
of the WTC Program was denied due to
insufficient evidence. (Id. at 15.) The ALJ
also noted that the Medical Board advised
that plaintiff “may engage in a suitable
occupation.” (Id. at 16.) The ALJ gave
“some weight” to this opinion because it
was based on plaintiff’s medical history and
his course of medical treatment, and was
consistent with the weight of the evidence.
(Id.)
The ALJ also did not rely heavily on the
opinions of Dr. Duffy, plaintiff’s treating
psychologist. (Id. at 17-18.) The ALJ noted
in his opinion that plaintiff presented to Dr.
Duffy for a consultation in December 2012
due to multiple symptoms, including
feelings of depression, anxiety, irritability,
low frustration tolerance, and a diminished
desire to socialize. (Id. at 17.) Dr. Duffy
stated that plaintiff noted feelings of posttraumatic stress following September 11,
2001, but was still able to work, and was
unable to perform at full capacity owing
only to his physical injuries. (Id.) Dr. Duffy
added that plaintiff’s concentration and
The ALJ relied on the opinions of Dr.
Dutta, a consultative orthopedist. (Id. at 17.)
Dr. Dutta examined plaintiff on April 11,
2013. (Id.) The ALJ discussed the findings
of Dr. Dutta’s examination of plaintiff, and
noted: plaintiff walked with a slight left
limp, but was able to walk on his heels and
toes without difficulty; cervical and lumbar
spines exhibited limited range of motion
21
without pain or spasms; straight leg raising
was negative; limited motion of the
shoulder, with intact strength in the upper
extremities; right knee had a slightly limited
range of motion, with intact strength in the
lower extremities; no evidence of
diminished strength, muscle atrophy,
sensory abnormality, or decreased reflexes;
and no joint effusion, inflammation, or
instability. (Id.) Dr. Dutta diagnosed
plaintiff with the following: post repair
supraspinatus tendon of left shoulder; post
repair right shoulder subscapularis; post
meniscectomy of right knee; history of
GERD; post-traumatic stress disorder;
history of depression; acid reflux; and
degenerative disc disease from C2 through
C7. (Id.) Dr. Dutta also assessed plaintiff,
advising of some physical limitations. (Id.)
Although Dr. Dutta only examined plaintiff
on one occasion, the ALJ gave “some
weight” to Dr. Dutta’s opinion because the
“findings [were] based on a comprehensive
examination and [were] consistent with the
weight of the evidence, the course of
medical treatment, and [plaintiff’s] reported
daily activities.” (Id.)
status examination and [were] consistent
with the weight of the evidence, the course
of medical treatment, and [plaintiff’s]
reported daily activities.” (Id.)
The ALJ relied on the opinion of Dr.
Acer, a consultative psychologist. (Id. at
18.) Dr. Acer examined plaintiff on June 7,
2013. (Id.) The ALJ discussed the findings
of Dr. Acer’s examination of plaintiff, and
noted that plaintiff’s mental status
examination was unremarkable, and his
attention, concentration, and memory were
intact. (Id.) Dr. Acer diagnosed plaintiff
with mild adjustment disorder, and assessed
plaintiff’s mental functioning limitations,
ultimately concluding that the results of the
evaluation did not appear to be consistent
with severe psychiatric issues that would
hamper functioning. (Id.) Although Dr.
Acer only examined plaintiff on one
occasion, the ALJ gave “some weight” to
Dr. Acer’s opinion because the “findings
[were] based on a comprehensive mental
Plaintiff challenges the Commissioner’s
decision that he is not disabled on several
grounds. Specifically, plaintiff asserts that:
(1) the ALJ erred in failing to afford
controlling weight to the opinions of Dr.
Dowling, plaintiff’s treating physician;
(2) the ALJ’s determination that plaintiff
had the RFC to perform light work was not
based on substantial evidence; (3) the ALJ
failed to properly evaluate plaintiff’s
credibility; and (4) the Commissioner failed
to sustain her burden of establishing that
The ALJ also relied on testimony from
a vocational expert who determined that
plaintiff was unable to perform any past
relevant work. (Id. at 19.) The vocational
expert also determined that, based on
plaintiff’s age, education, work experience,
and residual functional capacity, plaintiff
would be able to perform the requirements
of representative occupations such as: deli
cutter slicer; fast food worker; and counter
attendant. (Id. at 20.) The vocational expert
also confirmed that such jobs exist in
significant numbers in the national
economy. (Id.) 4
Upon considering all the medical
evidence and testimony, the ALJ determined
that plaintiff was not disabled under the
SSA. (Id. at 19-20.) Consequently, the ALJ
determined that plaintiff did not qualify for
disability benefits.
C. Analysis
4
As discussed more fully infra, the ALJ also gave
“some weight” to opinion evidence from the “State
agency physical consultant.” (Id. at 18.) However,
no state agency physical consultant provided an
opinion in this case. The parties dispute whether the
ALJ was referring to SDM Knight or Dr. Graff.
22
there is other work in the national economy
that plaintiff can perform.
If an ALJ does not give controlling
weight to a treating physician’s opinions, he
must “give good reasons in his notice of
determination or decision” for the weight
given to those opinions. Clark, 143 F.3d at
118 (quoting C.F.R. §§ 404.1527(d)(2),
416.927(d)(2)); see also, e.g., Perez v.
Astrue, No. 07-cv-958 (DLI), 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.”). Further, the ALJ must
apply various factors to decide how much
weight to give the treating physician’s
opinion. See Shaw, 221 F.3d at 134; Clark,
143 F.3d at 118. These factors include:
(1) the frequency of examination and the
length, nature, and extent of the treatment
relationship; (2) the evidence in support of
the opinion; (3) the opinion’s consistency
with the record as a whole; (4) whether the
opinion is from a specialist; and (v) other
relevant
factors.
20
C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2); see Clark,
143 F.3d at 118. “[W]hen an ALJ does not
give controlling weight to a treating
physician’s opinion, it must be clear from
the decision that the ALJ considered the
factors articulated in the Social Security
Regulations for determining what weight to
assign to a treating physician’s opinion.”
Vlado v. Berryhill, No. 16-CV-794 (MKB),
2017 WL 1194348, at *9 (E.D.N.Y. Mar.
29, 2017). A failure by the ALJ to provide
“good reasons” for not giving controlling
weight to a treating physician’s opinions is a
ground for remand. See Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999).
As set forth below, the Court concludes
that the ALJ’s failure to afford controlling
weight to Dr. Dowling’s opinions or provide
sufficient reasons for declining to do so
warrants remand under the treating
physician rule. Accordingly, the Court
remands this case to the ALJ for further
proceedings. Additionally, as explained
below, the ALJ is instructed to clarify on
remand whether, and to what extent, he
relied on SDM Knight’s RFC assessment.
1. The Treating Physician Rule
Under the treating physician rule, an
ALJ must give special evidentiary weight to
the opinion of a treating physician. See
Clark, 143 F.3d at 119. Specifically, the
treating physician rule “mandates that the
medical opinion of the claimant’s treating
physician [be] given controlling weight if it
is well supported by the 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, 79 (2d Cir.
1999). 5
5
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
impairments(s) is well-supported by
medically acceptable clinical and
laboratory diagnostic techniques and is
not inconsistent with the other substantial
evidence in your case record, we will
give it controlling weight.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
23
Here, the Court concludes that the ALJ
did not provide sufficient reasons for
declining to afford controlling weight to Dr.
Dowling’s opinions under the treating
physician rule. As noted above, the ALJ
gave “limited weight” to Dr. Dowling’s
opinion because (1) “treatment had been
very sporadic and irregular;” (2) “the
findings on examination ha[d] been
essentially normal;” and (3) “the nature of
treatment ha[d] been conservative and in no
way support[ed] the significant limitations
imposed.” (Id. at 16.) Notably, the ALJ did
not find that Dr. Dowling’s opinion was
contradicted by another medical opinion.
Thus,
there
must
have
been
“overwhelmingly compelling evidence” to
overcome Dr. Dowling’s opinions. E.g.,
Giddings v. Astrue, 333 Fed. App’x 649,
652 (2d Cir. 2009) (citing Burgess, 537 F.3d
at 129). For the following reasons, the
Court concludes that none of the ALJ’s
proffered reasons for affording limited
weight to Dr. Dowling’s opinion, either
individually or cumulatively, satisfy the
treating physician rule.
application of the treating physician rule”);
Black v. Barnhart, No. 01-CV-7825 FB,
2002 WL 1934052, at *4 (E.D.N.Y. Aug.
22, 2002) (“The ALJ incorrectly disregarded
Dr. Leva’s testimony because she apparently
believed he treated Black too sporadically in
1998. This conclusory analysis does not
satisfy the treating physician rule.”).
Indeed, the ALJ’s conclusion fails to
consider the fact that Dr. Dowling examined
plaintiff over a four-year period, and was
thus able to “develop a longitudinal picture
of [p]laintiff's medical history and
impairments” as envisioned by the treating
physician rule.
See 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2).
Moreover, “whether [a p]laintiff sought
medical treatment on a regular basis
[should] not weigh against [that p]laintiff if
the ALJ never asked [him or her] about the
reason for [his or] her infrequent medical
treatment.” See, e.g., Vlado v. Berryhill, No.
16-CV-794 (MKB), 2017 WL 1194348, at
*11 (E.D.N.Y. Mar. 29, 2017) (collecting
cases). At no point during the hearing did
the ALJ ask plaintiff about the frequency of
his visits to Dr. Dowling. 6 Thus, the ALJ’s
conclusory assertion, that giving limited
weight to Dr. Dowling’s opinion was
justified because “treatment had been very
sporadic and irregular,” fails to satisfy the
treating physician rule.
The ALJ’s first reason for giving
limited weight to Dr. Dowling’s opinion was
that “treatment had been very sporadic and
irregular.” This conclusory assertion does
not satisfy the treating physician rule. See,
e.g., Shaw, 221 F.3d at 134 (concluding that
the ALJ’s rejection of a treating physician’s
opinion because of “the intermittent nature
of [plaintiff’s] treatment” was improper, and
“f[ell] far short of the standard for
contradictory evidence required to override
the weight normally assigned the treating
physician’s opinion”); Valerio v. Comm’r of
Soc. Sec., No. 08-CV-4253 (CPS), 2009 WL
2424211, at *12 (E.D.N.Y. Aug. 5, 2009)
(holding that a “conclusory assessment of
[the treating physician’s] relationship with
plaintiff as sporadic in determining that [the
physician’s] opinion was unsupported by
medical evidence amounts to an improper
The second ground the ALJ invoked to
support his decision to afford Dr. Dowling’s
opinion limited weight was that “the
findings on examination ha[d] been
essentially normal.” (AR at 16.) However,
an ALJ is not “permitted to substitute his
own expertise or view of the medical proof
for the treating physician’s opinion.” Shaw,
6
“[B]ecause a hearing on disability benefits is a
nonadversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative
record.” Vlado, 2017 WL 1194348, at *9 (collecting
cases).
24
221 F.3d at 134; see also, e.g., Morgan v.
Colvin, 592 F. App’x 49, 49 (2d Cir. 2015)
(“The ALJ cannot arbitrarily substitute his
own judgment for competent medical
opinion.” (quoting Rosa, 168 F.3d at 79)).
Dr. Dowling did not report “normal”
findings after examining plaintiff. To the
contrary, over the four years that Dr.
Dowling treated plaintiff, he, inter alia,
diagnosed plaintiff with mechanical
discogenic low back pain and an underlying
herniated disc at L4-5 and L5-S1 (AR at
315-16); diagnosed plaintiff with cervical
radiculopathy
due
to
underlying
degenerative disc disease leading to
foraminal stenosis of the cervical spine and
concluded that plaintiff’s impairment was
“total” (id. at 316, 317, 322, 324); and
concluded that plaintiff could sit, stand, and
walk for only thirty minutes at a time (id. at
309).
Thus, the ALJ impermissibly
substituted his own opinion for Dr.
Dowling’s when he determined that Dr.
Dowling’s findings were “essentially
normal.” See, e.g., Shaw, 221 F.3d at 134;
Jakubowski v. Berryhill, No. 15-CV-6530
(CJB), 2017 WL 1082410, at *15 (E.D.N.Y.
Mar. 22, 2017).
treatments was reason to afford limited
weight to his opinions. See id.; see also,
e.g., Burgess v. Astrue, 537 F.3d 117, 129
(2d Cir. 2008) (“Nor is the opinion of
the treating physician to
be
discounted
merely because he has recommended
a conservative treatment regimen.”); Clarke
v. Colvin, No. 15-CV-354, 2017 WL
1215362, at *8 (S.D.N.Y. Apr. 3, 2017)
(same).
Moreover, the ALJ failed to
consider, or ask plaintiff about, potential
reasons that his treatment was conservative.
See, e.g., Sickler v. Colvin, No. 14 Civ.
1411, 2015 WL 1600320, at *15 (S.D.N.Y.
Apr. 9, 2015); SSRs 16-3p (listing potential
reasons that a prescribed treatment may
seem conservative, including that a plaintiff
may not be able to afford more progressive
treatment, may not have access to low-cost
services, and may not agree to take more
potent prescription medications). 7
Finally, there is no indication in the
record that the ALJ considered the fact that
Dr. Dowling is a specialist in deciding to
afford limited weight to his opinion.
Remand is warranted when the ALJ has not
indicated what weight, if any, was assigned
based on the fact that the medical opinion
was from a specialist. See, e.g., Clark, 2016
WL 1254024, at *10 (collecting cases).
Moreover, the ALJ gave “limited weight” to
Dr. Dowling’s opinion while affording
“some weight” to Dr. Dutta’s opinion. Dr.
Dowling, who examined plaintiff over the
course of four years, is an orthopedic
surgeon specialized in treating lower back
and neck pain. Dr. Dutta, on the other hand,
is a consultative orthopedist who examined
The ALJ’s third reason for giving
limited weight to Dr. Dowling’s opinion—
that “treatment ha[d] been conservative”—
similarly fails to satisfy the treating
physician rule. In Shaw, the Second Circuit
instructed that it was improper for an ALJ to
“characterize[] the fact that [the treating
physician] recommended only conservative
[treatment] as substantial evidence that
plaintiff was not physically disabled.” 221
F.3d at 134. The Court held that, by doing
so, the ALJ improperly “imposed the[]
notion that the severity of a physical
impairment directly correlates with the
intrusiveness of the medical treatment
ordered.” Id. at 134-35. Here, the ALJ
similarly erred in concluding that the
conservative nature of Dr. Dowling’s
7
In fact, plaintiff reported that his “daily medications
affect [his] ability to stay focused” and “seem to have
a negative impact on [his] memory.” (AR. at 14950.) There is no indication that the ALJ considered
this in determining that Dr. Dowling’s opinion was
not entitled to controlling weight because plaintiff’s
treatment was conservative in nature.
25
plaintiff once. “[A]n opinion of a specialist
regarding medical issues related to his or her
area of specialty must be given more weight
than the opinion of a source who is not a
specialist.” Petrie v. Astrue, 412 F. App’x
401, 407 (2d Cir. 2011); see also Rolon v.
Comm’r of Soc. Sec., 994 F. Supp. 2d 496,
508 (S.D.N.Y. 2014) (“An ALJ should
‘generally give more weight to the opinion
of a specialist about medical issues related
to his or her area of specialty than to the
opinion of a source who is not a specialist.’”
(quoting 20 C.F.R. §§ 404.1527(c)(5),
416.927(c)(5))). Thus, the ALJ’s failure to
consider that Dr. Dowling is a specialist,
particularly in light of the fact that the ALJ
gave more weight to Dr. Dutta’s opinion,
requires remand. 8
address on remand. In his opinion, the ALJ
stated,
With regard to additional opinion
evidence, some weight is afforded to
the
State
agency
physical
consultant’s assessments (Exhibit
1A, 5F, 7F, 9F); however, they did
not get an opportunity to examine the
claimant. As such, these opinions
are weighed as statements from nonexamining expert sources, as they are
highly qualified physicians who are
also experts in Social Security
disability evaluation (20 CFR
404.1527).
(AR at 18). However, no state agency
physical consultant provided an assessment
in this matter. The parties dispute to whom
the ALJ’s above statements refer. Plaintiff
argues that the statements refer to SDM
Knight, who provided a state agency RFC
assessment, and that the ALJ erred in
placing any weight on an RFC assessment
from an SDM. The Commissioner contends
that the statements refer to Dr. Graff, the
state agency psychological consultant, and
that, even if the statements refer to SDM
Knight, the ALJ’s reliance on SDM
Knight’s RFC assessment was harmless
error.
In sum, the ALJ failed to provide “good
reasons” for declining to afford controlling
weight to Dr. Dowling’s opinions. Snell,
177 F.3d at 133. That failure “by itself
warrants remand.” Selian v. Astrue, 708
F.3d 409, 419 (2d Cir. 2013).
2. Single Decisionmaker RFC
Assessments
Although the ALJ’s failure to satisfy the
treating physician rule independently
warrants remand, the Court also addresses
an additional deficiency in the ALJ’s
determination, which the ALJ should
“SDMs are non-physician disability
examiners who ‘may make the initial
disability determination in most cases
without requiring the signature of
a medical consultant.’” Lozama v. Colvin,
No. 1:13-CV-0020(GTS), 2016 WL
1259411, at *5 (N.D.N.Y. Mar. 30, 2016)
(quoting Hart v. Astrue, 32 F. Supp. 3d 227,
237 (N.D.N.Y. 2012)). Because SDMs are
not medical professionals, courts have
concluded that an SDM’s RFC assessment is
“entitled to no weight as a medical opinion.”
See, e.g., Buono v. Colvin, No. 14-CV-2388
FB, 2015 WL 4390645, at *2 (E.D.N.Y.
July 15, 2015); Box v. Colvin, 3 F. Supp. 3d
8
The Court notes that it also appears that the ALJ did
not rely on the opinion of Dr. Kerker, who
consistently treated plaintiff for his left shoulder
injury from April 2012 to April 2013. During that
time period, plaintiff visited Dr. Kerker
approximately nine times, and Dr. Kerker performed
arthroscopic surgery on plaintiff. Although the ALJ
described Dr. Kerker’s treatment of plaintiff (id. at
17), he did not clearly state whether he relied on Dr.
Kerker’s opinion, and, if so, to what extent. On
remand, the ALJ is instructed to clarify whether, and
to what extent, he relied on Dr. Kerker’s opinion and
explain his reasons for doing so (or declining to do
so), consistent with this Memorandum and Order.
26
(E.D.N.Y. 2014) ;
Kociuba v.
Comm'r of Soc. Sec. , No. 5:16-CY-0064,
is also denied. The case is remanded to the
ALJ for further proceedings consistent with
this Memorandum and Order.
27, 46
2017 WL 2210511, at *7 (N.D .N.Y. May
19, 2017) (citing Robles v. Comm 'r of Soc.
Sec., No. 5:15-CY-1359, 2016 WL 7048709,
at *5 (N.D.N.Y. Dec. 5, 2016)) . It is thus
legal error to weigh an SDM ' s opinion as if
he or she were a medical professional. See,
e.g. , Box, 3 F. Supp. 3d at 46 .
L
After reviewing the ALJ ' s at-issue
statements and the exhibits referenced
therein, the Court concludes that it is not
clear whether the ALJ ' s statements refer to
SOM Knight ' s RFC assessment. However,
the Court notes that the ALJ ' s findings and
conclusions regarding plaintiff's RFC to
perform light work are closely aligned with
SOM Knight ' s opinions . It thus appears that
the ALJ may have afforded improper
evidentiary weight to SOM Knight ' s
opinions in determining that plaintiff had the
RFC to perform light work. 9 Accordingly,
the ALJ should clarify on remand the
weight, if any, given to SOM Knight ' s RFC
consistent
with
this
assessment,
10
Memorandum and Order.
United. States District Judge
Dated: February 14, 2018
Central Islip, New York
***
Plaintiff is represented by Sharmine Persuad
of the Law Office of Sharmine Persuad ,
1105 Route 110, Farmingdale, NY 11735.
The Commissioner is represented by
Assistant United States Attorney Mary M.
Dickman, 271
Cadman
Plaza
East,
Brooklyn, NY 1120 I.
V. CONCLU ION
For the reasons set forth above,
plaintiffs motion for judgment on the
pleadings is denied . The Commissioner' s
cross-motion for judgment on the pleadings
9
Because it is unclear whether, and to what extent,
the ALJ relied on SDM Knight's RFC assessment,
the Court cannot determine whether any such reliance
was harmless.
10
In light of this Court ' s conclusion that the ALJ
committed legal error by failing to give " good
reasons" for giving limited weight to Dr. Dowling's
opinions, the Court need not address plaintiffs other
arguments. However, after a proper application of
the treating physician rule, th e ALJ shall reassess the
credibility determination of plaintiff, as well as the
determination as to whether plaintiff had the RFC to
perform light work and whether there is other work in
the national economy that plaintiff can perform.
27
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