Ridge v. Berryhill

Filing 19

ORDER denying 10 Motion for Judgment on the Pleadings; denying 15 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 ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/30/2018. (Baum, Sabrina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-645 (JFB)
_____________________

MARK J. RIDGE,
Plaintiff,
VERSUS

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

___________
MEMORANDUM AND ORDER
March 30, 2018
____________
JOSEPH F. BIANCO, District Judge:
Plaintiff Mark Ridge (“plaintiff”)
commenced this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act on
February 3, 2017, challenging the final
decision of the Acting Commissioner of
Social Security (the “Commissioner” or the
“government”)
denying
plaintiff’s
application for Social Security disability
benefits on December 12, 2016.
An
Administrative
Law
Judge
(“ALJ”)
determined that plaintiff had the residual
functional capacity to perform light work, as
defined in 20 C.F.R. § 404.1567(b), with
certain limitations. The ALJ found that there
were a significant number of jobs in the
national economy that plaintiff could perform
despite these limitations, and, therefore, that

plaintiff was not disabled. The Appeals
Council denied plaintiff’s request for review,
making the ALJ’s decision the final decision
of the Commissioner.
Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The Commissioner opposes
the motion and cross-moves for judgment on
the pleadings. For the reasons set forth
below, the Court denies plaintiff’s motion for
judgment on the pleadings, denies the
Commissioner’s cross-motion for judgment
on the pleadings, and remands the case to the
Administrative Law Judge (“ALJ”) for
further proceedings consistent with this
Memorandum and Order.

I. FACTUAL BACKGROUND

hearing before the ALJ, he claimed that he
was disabled because he was “limited to a
less-than sedentary occupational life.” (AR
at 36-37.) In a function report dated June 5,
2013, plaintiff reported that he did not need
help taking care of his personal needs and
grooming, could fix light meals, although he
used to cook more “before [his] conditions
began,” and was able to do some light
cleaning in the house. (AR at 221-22.) He
stated that he needed help with all chores, and
could no longer do outdoor chores. (AR at
222.) Plaintiff reported that he went outside
daily, drove a car, and shopped for personal
items and groceries about once a week. (AR
at 222-23.) He stated, however, that he could
not go to the gym, lift weights, or ride a bike.
(AR at 223.) He reported that he was limited
in what he could lift, and could only stand,
walk, and sit for short periods of time.1 (AR
at 224-25.) Section C, discussing plaintiff’s
testimony at his hearing before the ALJ,
includes additional information about
plaintiff’s personal and work history,
injuries, and symptoms.

The following summary of the relevant
facts is based upon the administrative record
(“AR”) developed by the ALJ. (ECF No. 7.)
A more exhaustive recitation is contained in
the parties’ submissions to the Court and is
not repeated herein.
A. Personal and Work History
Plaintiff was born on December 31, 1967,
and is currently 50 years old. (AR at 164.)
Plaintiff is divorced and has three teenage
children who live with their mother. (AR at
41.) Plaintiff lives with his parents. (AR at
43.) He completed one or two years of
college. (AR at 168, 214.)
Prior to becoming unable to work,
plaintiff worked as a correction officer for the
Nassau County Sheriff’s Department from
August 1995 through January 2013. (AR at
214.) Plaintiff was injured at work on
January 6, 2011, when an inmate fell on him
while he was attempting to stop a fight. (AR
at 368.) The incident resulted in injuries to
plaintiff’s hip, shoulder, and back (AR at
279, 368), and plaintiff received Workers’
Compensation as a result of this injury from
January 2011 to February 2012 (AR at 133,
136, 139). Plaintiff returned to work “in a
light duty capacity” from February 2012
through January 2013, when he retired on
disability pension. (AR at 44-45, 399.) At
plaintiff’s hearing before the ALJ in this case,
he testified that he sustained injuries to his
neck “from numerous inmate altercations,
assaults . . . throughout [his career],” and that
his neck pain got worse after a motor vehicle
accident in 2014. (AR at 45.)

B. Relevant Medical History
As plaintiff summarizes, he has been
diagnosed with lumbar herniations, bulging
discs, stenosis, lumbar spondylosis, lumbar
and cervical radiculopathy, facet arthritis,
thoracic or lumbosacral neuritis or radiculitis,
shoulder tendinitis, hypertension, and
anxiety. (AR at 266, 269, 275-76, 280, 291,
295, 310, 314, 318, 322, 332, 388, 418, 463,
476.)
1. Medical Evidence Before the July 4,
2012 Alleged Onset Date
On January 6, 2011, plaintiff went to the
Winthrop University Hospital emergency
room with complaints of left shoulder, left

Plaintiff claimed that his disability onset
date was July 4, 2012. (AR at 129.) At his

1

Plaintiff estimated that he could walk for about 15
minutes before having to stop and rest for three to five
minutes. (AR at 226.)

2

five millimeter “retrolisthesis of L4 on L5,”
L4-L5 disc bulging and central to left
paracentral disc herniation result[ing] in
moderate bilateral neural foraminal stenosis
without spinal canal compromise, and a small
L4-L5 annular tear; and grade I
anterolisthesis of L5 on S1 with bilateral
chronic-appearing
L5
spondylolysis,
associated L5-S1 disc pseudo bulging and
facet arthropathy resulting in mild right and
moderate left-sided neural foraminal
stenosis. (AR at 332.)

hip, and left lower back pain after falling at
work while trying to stop an inmate fight.
(AR at 337-40, 368.) The emergency room
doctor noted paresthesia in the legs and
injuries to the shoulder, hip, and back with
radiculopathy. (AR at 338.) Plaintiff was
treated with a Medrol Dose Pack and referred
for an orthopedic consultation. (Id.)
On January 11, 2011, plaintiff visited
Charles Ruotolo, M.D. (“Dr. Ruotolo”), at
Total Orthopaedics & Sports Medicine
(“Total Orthopaedics”).
(AR at 368.)
Plaintiff reported pain with lifting or
strenuous activity after an injury at work.
(Id.) Dr. Ruotolo noted that plaintiff reported
a pain level of six out of ten in his left hip,
left shoulder, and lower back radiating into
his leg; had numbness/tingling down the
posterior and lateral left thigh to the knee; and
was tender to palpation of the left hip. (Id.)
Plaintiff also reported that his left shoulder
soreness was mild and had “pretty much
resolved.” (Id.) Plaintiff was not working at
the time, but intended to return to work when
medically cleared. (Id.) An examination of
plaintiff’s hips showed normal gait; range of
motion of 0 to 140 degrees in flexion and
extension, 0 to 40 internal rotation, 0 to 45
external rotation, 0 to 60 abduction, and 0 to
30 adduction; normal motor strength; and
intact sensation and reflexes. (AR at 369.)
Dr. Ruotolo noted that plaintiff had no
observable difficulties standing, walking,
sitting, or arising from a seated position. (Id.)
Dr. Ruotolo prescribed Naprosyn for pain
and noted that plaintiff was to have a
magnetic resonance imaging (“MRI”) scan of
his lumbar spine, and referred him to Karen
Avanesov, D.O. (“Dr. Avanesov”), for an
evaluation of his spine. (AR at 370.) Dr.
Ruotolo found that plaintiff was “temporarily
totally disabled” pending MRI results. (Id.)

On January 24, 2011, plaintiff returned to
Total Orthopaedics and met with Dr.
Avanesov, who reviewed his MRI results.
(AR at 365.) Dr. Avanesov examined
plaintiff and found plaintiff had normal gait
and posture; spasms in the lower lumbar
paraspinal muscles and tenderness to
palpation, with more pain to palpation on the
left side; range of motion of the back of 40
degrees in forward flexion, 20 in extension,
20 in left side bending or rotation, and 30 in
right side bending or rotation; straight leg
raise to 20 degrees on the left and negative on
the right; full muscle strength and tone;
normal neurological sensory testing,
although plaintiff had deep dull pain and
paresthesia in the left buttock and posterior
thigh; and deep tendon reflexes of 2/2 on both
sides. (AR at 365-67.) Plaintiff rated the
level of pain in his left leg a five out of ten.
(AR at 365.) He reported that his symptoms
were exacerbated by bending and sleeping.
(Id.) Dr. Avanesov diagnosed plaintiff with
spinal instability at L4-5 and L5-S1, left
lumbar radiculopathy, and degenerative disc
disease at L4-5 and L5-S1. (AR at 366.) He
found plaintiff was “temporarily totally
disabled,” prescribed Vicodin and Valium,
and referred plaintiff for four weeks of
physical therapy three to five times per week.
(AR at 367.)

Plaintiff’s January 19, 2011 MRI
showed: L3-L4 disc bulging with no more
than mild bilateral neural foraminal stenosis;

On February 21, 2012, plaintiff saw Dr.
Avanesov again and reported left leg pain,

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examined plaintiff, and found para lumbar
tenderness with spasm; flexion to 60 degrees;
positive facet load test; and dysesthesias in
the left buttock and posterior thigh/leg. (AR
at 318.) Dr. Lombardi diagnosed plaintiff
with herniated discs at L4-5 and C5-6, facet
arthritis, and chronic neck pain, and
concluded that plaintiff was “unable to
perform restricted assignment.” (Id.) The
doctor recommended that plaintiff return in
two weeks “to determine possible return to
restricted assignment.” (Id.)

which was aggravated by sitting and
sleeping, and which plaintiff said nothing,
including physical therapy, alleviated. (AR
at 362.) Plaintiff reported that his pain had
increased to a level of seven out of ten. (Id.)
Dr. Avanesov found spasms in the bilateral
lumbar paraspinal muscles and left sciatic
region; tenderness to palpation at the lumbar
spine, especially around facet joints of the
lower lumbar segment; impaired lumbar
range of motion, with flexion to 40 degrees,
extension to 20 degrees, and lateral bending
and rotation to 30 bilaterally; and positive
straight leg raise on the left at 20 degrees.
(AR at 362-63.) He diagnosed plaintiff with
L4-5 and L5-S1 left foraminal stenosis; L4-5
and L5-S1 facet hypertrophy; L4-5 and L5S1 grade retrolisthesis; L5-S1 grade
spondylolisthesis; L5 spondylosis; and L4-5
and L5-S1 degenerative disease. (AR at 36364.) Dr. Avanesov recommended continuing
with “conservative care” and another six
weeks of physical therapy, prescribed Norco,
and referred plaintiff for pain management
and electromyography and nerve conduction
velocity (“EMG/NCV”) studies of the lower
extremities. (AR at 364.)

On March 21, 2011, Dr. Avanesov
examined plaintiff and found that his
“physical examination [was] unchanged.”
(AR at 355.) He noted continued complaints
of lower back pain radiating to the left
buttock and down his leg to his foot. (Id.)
Plaintiff reported that his symptoms were
aggravated by sitting, standing, and sleeping,
and complained of some paresthesia and
numbness in the left lower extremity. (Id.)
Dr. Avanesov found that plaintiff had
antalgic gait during the stance phase, positive
straight leg raise on the left at 20 degrees, and
full motor strength (neurovascular intact).
(Id.)
Dr. Avanesov recommended that
plaintiff see a pain management specialist for
lumbar epidural steroid injections, “since his
pain is uncontrollable.”
(Id.)
He
recommended that, if the injections failed to
resolve plaintiff’s pain, he schedule lumbar
decompression and possible fusion. (AR at
356.)

On March 3, 2011, plaintiff saw Luis
Alejo, M.D. (“Dr. Alejo”), at Total
Orthopaedics. (AR at 357.) Dr. Alejo
reviewed plaintiff’s EMG/NCV results and
found that the study was consistent with
lumbar
radiculopathy
with
greater
involvement at the L4/5 level. (AR at 359.)
He noted “persistent and radiating low back
pain down [plaintiff’s] left lower extremity
associated with numbness and pain and
spasms in the lower back as well as the lower
extremity.” (AR at 268.)

Plaintiff saw pain management physician
Timothy D. Groth, M.D. (“Dr. Groth”), on
March 30, 2011. (AR at 279.) Plaintiff
reported pain from sitting for too long,
standing, and sleeping, but stated that he had
no problem walking. (Id.) Climbing stairs,
coughing, and sneezing also aggravated
plaintiff’s pain. (Id.) Plaintiff reported that
the lower back pain radiated down his lower
left extremity, with a burning, aching, and
tingling sensation. (Id.) He rated his pain a

On March 4, 2011, plaintiff saw police
surgeon Louis Lombardi, M.D. (“Dr.
Lombardi”).
(AR at 318.)
Plaintiff
complained of back pain radiating to the left
buttock and lower extremity. (AR at 318.)
Dr. Lombardi reviewed plaintiff’s MRI and

4

materials weighing more than ten to fifteen
pounds. (Id.) Additionally, he noted that
plaintiff was not capable of returning to his
usual job and, specifically, that he was not
capable of having direct prisoner contact.
(Id.)

three to six out of ten, and reported that it
interfered with sleeping, sports, housework,
and exercise. (Id.) Dr. Groth reviewed
plaintiff’s MRI, and examined plaintiff and
found lumbar spine flexion of 80 degrees and
extension to 5 degrees, no significant spinal
tenderness, positive left-sided straight leg
raise, and that plaintiff was unable to toe walk
on the left. (AR at 280.) Dr. Groth noted that
his impression was lumbar radiculopathy.
(Id.) From April 2011 to July 2011, Dr.
Groth administered a series of injections.
(AR at 274.) On August 23, 2011, Dr. Groth
completed a Workers’ Compensation Board
form indicating that plaintiff had 100 percent
temporary impairment. (AR at 290-91.)

Plaintiff saw Dr. Avanesov five times,
approximately once a month, from March
through September 2011. (AR at 341-56.)
On June 29, 2011, Dr. Avanesov noted
increased pain, that lumbar range of motion
remained limited, and positive straight leg
raise on the left at 30 degrees. (AR at 35152.) He noted that plaintiff was due for his
third epidural injection and prescribed
Valium. (AR at 352.) On August 15, 2011,
Dr. Avanesov found plaintiff’s condition
unchanged as to his lumbar, neck, and left leg
pain, and continued to find limited range of
motion and point tenderness to palpation in
the lower lumbar spine, despite the injection
the prior month. (AR at 348-49.) On
September 19, 2011, Dr. Avanesov again
found plaintiff’s condition unchanged as to
his pain, tenderness to palpation, and limited
range of motion. (AR at 344.) At both the
August and September 2011 visits, Dr.
Avanesov
offered
plaintiff
lumbar
decompression and stabilization surgery, but
noted that plaintiff wanted to continue with
conservative care. (AR at 344, 349.)

On August 24, 2011, orthopedic surgeon
Stuart Kandel, M.D. (“Dr. Kandel”),
performed an orthopedic evaluation at the
request of the Workers’ Compensation
Board. (AR at 308-311.) Dr. Kandel noted
that plaintiff complained of lower back pain
radiating to his left buttock and left lower
extremity. (AR at 309.) Plaintiff informed
Dr. Kandel that he had not worked since his
injury on January 6, 2011, and was applying
for retirement. (Id.) Dr. Kandel examined
plaintiff and found range of motion in the
lumbar spine of 60 degrees in flexion, 20
degrees in extension, and 40 degrees right
and left lateral flexion; no muscle spasm;
normal sensation; no gross muscle weakness;
2+ reflexes; and negative straight leg raise
bilaterally. (Id.) Dr. Kandel reviewed
plaintiff’s medical records, including his
MRI and records from Drs. Groth and
Avanesov. (AR at 309-10.) Dr. Kandel
diagnosed plaintiff with a lumbosacral sprain
superimposed on degenerative disease of the
lumbar spine with radiculopathy. (AR at
310.) He found that plaintiff had a “moderate
partial disability which should be considered
to be permanent in nature.” (Id.) Dr. Kandel
found that plaintiff was capable of
performing full-time work that did not
require repeated bending or lifting of

On September 29, 2011, Dr. Avanesov
completed a Workers’ Compensation report
based on his September 19, 2011
examination, in which he diagnosed plaintiff
with lumbago, thoracic or lumbosacral
neuritis or radiculitis, and congenital
spondylolisthesis, and reported that plaintiff
had 100 percent temporary impairment. (AR
at 341-42.)
At a visit with Dr. Alejo on October 19,
2011, plaintiff reported that he was “very
limited with respect to bending, lifting and
walking” due to his pain. (AR at 422.) Dr.
Alejo noted persistent lumbar tightness and
5

that trigger points were present, very tight
and guarded range of motion, and antalgic
gait. (Id.) Dr. Alejo recommended a
chiropractic consultation, and noted that
plaintiff agreed to have one. (Id.) He also
recorded that plaintiff was “100% disabled
from work.” (Id.)

examination that plaintiff had 100 percent
temporary impairment. (AR at 391-92.)
On February 1, 2012, Dr. Alejo found
that plaintiff had “significant discogenic
findings with respect to his lumbar spine MRI
inclusive of L3-L4 bulging disks,
retrolisthesis of L4 and L5 with herniation as
well as at L4-L5.” (AR at 425.) He also
found an annular tear at L4-5, a disc bulge at
L5-S1, tightness in the lumbar spine, trigger
points, limited range of motion, and antalgic
gait. (Id.) Dr. Alejo referred plaintiff for
physical therapy, recommended another trial
of epidural steroid injections, and noted that
his opinion was that plaintiff was “100%
disabled from his specific occupation.” (Id.)

Plaintiff saw Dr. Alejo again on
December 7, 2011 and reported that he did
not attend chiropractic care because his
insurance company was not going to approve
it. (AR at 423.) At this visit and a December
28, 2011 visit, Dr. Alejo adjusted plaintiff’s
pain medications. (AR at 423-24). At the
December 7, 2011 visit, 2 Dr. Alejo
“attempt[ed] to wean [plaintiff] off the
Neurontin.” (AR at 423.) Then, on finding
at the December 28, 2011 visit that plaintiff
“was not able to tolerate the weaning without
increasing his symptoms,” Dr. Alejo put
plaintiff back on his regular Neurontin dose.
(AR at 424.) Dr. Alejo also referred plaintiff
for a second opinion on pain management.
(Id.) He noted in Workers’ Compensation
reports based on these examinations that
plaintiff was “temporarily totally disabled,”
and diagnosed thoracic or lumbosacral
neuritis or radiculitis. (AR at 382-83, 38586.)

On February 17, 2012, impartial medical
expert Gerald Greenberg, M.D. (“Dr.
Greenberg”),
completed
a
medical
interrogatory regarding plaintiff’s condition.
(AR at 396.) Dr. Greenberg found that
plaintiff’s impairments did not meet an
impairment in the “Listing of Impairments,”
and that plaintiff should be capable of
sedentary work “within less than one year” of
his January 2011 injury. (AR at 396-98.)
On March 26, 2012, Dr. Avanesov wrote
a “narrative report on [plaintiff].” (AR 399401.) Dr. Avanesov noted that plaintiff
returned to light duty work in February 2012.
(AR at 399.) He also noted that plaintiff
continued to complain of pain in his lower
back and left leg that “ha[d] been constant
ever since the injury and not improved
despite extensive therapy,” and which he
rated a pain level of seven out of ten. (AR at
399-400.) Based on his physical examination
that day, Dr. Avanesov found that plaintiff
had significantly reduced lumbar range of
motion, full muscle strength in his lower
extremities, normal reflexes, numbness and

On January 5, 2012, plaintiff visited
Aristide Burducea, D.O. (“Dr. Burducea”),
from Orthopedics Spine & Sports, who noted
“decreased forward flexion, extension and
lateral flexion” of the lumbar spine and
positive straight leg raise on the left. (AR at
394-95.) Dr. Burducea diagnosed lumbar
radiculopathy, degenerative disc disease, and
facet arthropathy, and ordered an L5 and S1
transforaminal steroid injection. (AR at 394.)
Dr. Burducea noted in a Workers’
Compensation report based on this

2

Dr. Alejo again noted plaintiff’s persistent lower
back pain, and found “[l]umbar spine antalgic loading,

very stiff, and guarded on active flexion and
extension.” (AR at 423.)

6

paresthesia, no sensation to light touch and
pinprick in his left L5 and S1 dermatomal
distribution, and positive straight leg raise on
the left at 30 degrees. (AR at 400.) He
diagnosed plaintiff with left lumbar
radiculopathy at L4-5 and L5-S1, mechanical
lower back pain secondary to L4-5
retrolisthesis and L5-S1 spondylolisthesis,
disc
herniations,
L5
spondylosis,
degenerative disc disease involving the lower
lumbar spine, facet hypertrophy at L4-5 and
L5-S1, and left L4-5 and L5-S1 neural
foraminal stenosis. (Id.)

cleared plaintiff “to perform light duty only.”
(Id.) Plaintiff told Dr. Alejo that this work
bothered his back because there was no room
to stretch. (Id.) He also told Dr. Alejo that
he was afraid of attempting surgery. (Id.) Dr.
Alejo’s assessment was that “[a]t this point in
time, [plaintiff] has failed conservative
treatment.” (Id.) He noted, however, that
plaintiff did not want another set of epidural
injections, and was “afraid of the surgical
procedure.” (Id.) Dr. Alejo again indicated
that plaintiff was “100% disabled from
performing his occupation as a corrections
officer.” (Id.) Dr. Alejo completed another
report for Workers’ Compensation based on
this visit, noting the same diagnoses as in past
reports—thoracic or lumbosacral neuritis or
radiculitis—and
that
plaintiff
was
temporarily totally disabled. (AR at 405.)

Dr. Avanesov stated in this report that
plaintiff was unable to continue working as a
correction officer in his facility. (AR at 401.)
He noted that plaintiff’s functional
restrictions for dynamic abilities, such as
lifting, carrying, pushing, and pulling, should
be reduced to a minimum, and that plaintiff
needed to avoid climbing, bending, stooping,
kneeling, and reaching. (Id.) He also found
that plaintiff was limited to walking, sitting,
and standing approximately one hour at a
time with a prolonged rest in between. (Id.)
He noted that plaintiff should be restricted to
light activities requiring him to exert no more
than twenty pounds of force occasionally and
not more than ten pounds frequently. (Id.)
He also indicated that plaintiff “sustained
total moderate disability and will require
surgical intervention in the future in order to
treat his problem.” (Id.)

On May 29, 2012, Dr. Alejo noted the
same diagnoses as he had previously based
on plaintiff’s MRI, and summarized that
plaintiff’s three epidurals were not helpful,
and that physical therapy helped, but only on
a very temporary basis (and, regardless,
plaintiff’s insurance would no longer cover
physical therapy). (AR at 404.) Dr. Alejo
diagnosed plaintiff with chronic low back
pain with radiculopathy and spasms
secondary to disc herniation, as well as multilevel disc bulges, and noted that plaintiff was
“100% disabled from performing his
occupation.” (Id.) He also noted again that
plaintiff had “failed conservative treatment”
and was “deferring surgery at this time. He
was scared of the procedure, I do
understand.” (Id.)

Plaintiff saw Dr. Alejo on April 17, 2012
and May 29, 2012, and continued to complain
of lower back pain. (AR at 426-27.) On
April 17, 2012, plaintiff informed Dr. Alejo
that his insurance company “is no longer
approving any physical therapy.” (AR at
426.) An independent medical examiner
physician from the insurance company had

2. Medical Evidence After the July 4,
2012 Alleged Onset Date
On June 4, 2012, 3 plaintiff went to the
Winthrop University Hospital emergency

3

Although plaintiff’s medical records show that his
injury occurred on June 4, 2012, plaintiff alleged a
disability onset date of July 4, 2012 in his application

for Social Security benefits (AR at 129), and the ALJ
used that date in his decision (AR at 17). The Court,

7

room after injuring his right shoulder, and
experiencing neck spasms. (AR at 411-17.)
On June 5, 2012, Dr. Alejo wrote a note
stating that, due to this injury, plaintiff was
under his “active care” for a right shoulder
rotator cuff injury and that, due to this injury,
he was “totally disabled and unable to work
until further notice.” (AR at 417.)

time.” (Id.) This report does not discuss
plaintiff’s right shoulder condition. (Id.)
On December 12, 2012, Dr. Alejo noted
“[c]hronic persistent low back pain and
radiculopathy for multilevel discogenic
sources.” (AR at 431.) He also reported that
plaintiff learned physical therapy exercises
that he could perform at home to try to
improve his range of motion, but could not
lift any weights and was instructed to find a
facility with an indoor pool where he could
perform aerobic exercises without weightbearing stress on his lower back. (Id.)

Plaintiff had a right shoulder MRI taken
on June 27, 2012. (AR at 418.) The MRI
showed hypertrophic change of the
acromioclavicular
joint,
prominent
tendinosis of the supraspinatus tendon and
focal bursal surface tear at the insertion,
subchondral cystic degenerative change of
the humeral head, and a small cyst in the
adjacent soft tissue. (Id.)

On March 5, 2013, plaintiff reported to
Dr. Alejo that he had retired. (AR at 433.)
He informed Dr. Alejo that his pain “ha[d]
not been getting worse, especially since he is
now retired.” (Id.) Dr. Alejo still found
plaintiff’s lumbar spine to be stiff and range
of motion limited. (Id.) On May 22, 2013,
Dr. Alejo noted that plaintiff “still has
persistent intermittent low back pain,” as well
as trigger points and limited range of motion.
(AR at 438.)

On July 6, 2012, plaintiff saw Robert
Lippe, M.D. (“Dr. Lippe”), at Orlin & Cohen
Orthopedic Associates. 4 (AR at 419.)
Plaintiff reported that he injured his right
shoulder at work during an altercation on
June 4, 2012, when he was on restricted duty
supervising inmates. (Id.) Dr. Lippe noted
that plaintiff had no prior shoulder issues, and
that the shoulder pain did not affect plaintiff’s
ability to sleep. (Id.) He also noted that
plaintiff had therapy and an MRI and “now
feels he’s ready to return to work.” (Id.)

On August 15, 2013, plaintiff reported
that he could not be active and was gaining
weight in his retirement because of his back
pain. (AR at 492.) Plaintiff still did not want
surgery; Dr. Alejo noted that he was scared
of the procedure.
(Id.)
Dr. Alejo
recommended epidural injections for
plaintiff’s “acute severe pain” and weight
watchers for weight loss. (Id.)

Plaintiff had multiple visits with Dr.
Alejo for his lower back pain from July 19,
2012 through August 15, 2013. (AR at 42838, 492.) On July 19, 2012, plaintiff reported
that his “episodes of pain ha[d] not
improved[,] in fact they are increasing,” as
were his spasms. (AR at 428.) Dr. Alejo
stated, as before, that plaintiff was “100%
disabled from his occupation.” (Id.) In
describing his work, plaintiff stated that “they
ha[d] him pushing buttons on the job at this

On August 28, 2013, plaintiff saw Chaim
Shtock, D.O. (“Dr. Shtock”), for a
consultative orthopedic examination for the
Social Security Administration Division of
Disability Determination. (AR at 439-46.)
Dr. Shtock does not discuss reviewing any of
plaintiff’s other medical records. (AR at 43942.) Plaintiff complained of lower back pain

4

therefore, uses the July 4, 2012 date for the purposes
of this opinion.

The administrative record contains only the first page
of Dr. Lippe’s notes from plaintiff’s visit. (AR at 419.)

8

but had no spasm. (Id.) Straight leg raising
was positive at 35 degrees bilaterally in the
sitting position. (Id.) In plaintiff’s lower
extremities, Dr. Shtock found plaintiff had
4+/5 muscle strength in the proximal and
distal muscles bilaterally with no muscle
atrophy or sensory abnormality, deep tendon
reflexes in his left knee of 1+, decreased
sensation to light touch over the left leg and
lateral aspect of the left foot, and no joint
effusion, inflammation, or instability. (Id.)
A cervical spine x-ray showed straightening.
(Id.)

ranging from five to nine out of ten. (AR at
439.) Plaintiff stated that his lower back pain
radiated down his left leg with numbness and
tingling; was aggravated by prolonged
sitting, standing, and bending over; and was
relieved by rest, refraining from aggravating
activities, and over-the-counter antiinflammatory medication. (Id.) Plaintiff also
complained of tightness and stiffness in his
neck that he typically experienced once a
week, and which was aggravated by turning
his neck. (Id.) Dr. Shtock noted that
plaintiff’s activities of daily living included
that he was “independent” in cooking, light
cleaning, laundry, shopping, showering,
dressing, and grooming. (AR at 440.)
Plaintiff reported that he watched television,
listened to the radio, read books, went to
doctor’s appointments, and visited friends.
(Id.)

Dr. Shtock noted in his “medical source
statement” that plaintiff had moderate
limitations for heavy lifting, squatting,
crouching, frequent stair climbing, walking
long distances, and frequent bending. (AR at
442.)
Plaintiff had mild to moderate
limitations for sitting and standing for long
periods. (Id.) He had no limitations for
performing overhead activities with both
arms or for fine and gross motor activity with
his hands, and “no other physical functional
deficits in [the doctor’s] opinion.” (Id.)

Dr. Shtock examined plaintiff at this visit
and found that plaintiff appeared to be in no
acute distress, had normal gait, walked on his
heels and toes without difficulty, needed no
help changing for the examination or getting
on and off the examination table, and could
rise from a chair without difficulty. (Id.)
Plaintiff could not, however, squat beyond 40
percent. (Id.) Dr. Shtock found that plaintiff
had intact hand and finger dexterity, and 5/5
right and 4+/5 left grip strength. (AR at 441.)
He found that plaintiff’s cervical spine
showed flexion to 40 degrees, extension to 30
degrees, side bending to 30 degrees
bilaterally, and rotation to 55 degrees
bilaterally, and plaintiff had no tenderness,
paracervical pain, or spasm. (Id.) Dr. Shtock
found that plaintiff had full range of motion
in his upper extremities, full strength, no
sensory abnormalities, and physiologic and
equal reflexes. (Id.) He found that plaintiff’s
thoracic and lumbar spine showed flexion to
60 degrees, extension to 10 degrees, and
lateral flexion and rotary movements to 20 or
25 degrees bilaterally.
(Id.)
Plaintiff
reported left lumbar paraspinal tenderness,

On October 10, 2013, Dr. Alejo noted
that plaintiff was “very leery of any surgical
procedures.” (AR at 491.) Dr. Alejo noted
that epidural injections did not work, and that
plaintiff “may benefit from more physical
therapy, but he already has had extensive
therapy.” (Id.) Dr. Alejo again noted that
plaintiff was “100% permanently disabled
from his previous occupation.” (Id.) He
noted that he would follow up with plaintiff
in the next several weeks if his pain did not
resolve or decrease. (Id.)
Plaintiff saw Dr. Alejo again on
December 12, 2013. (AR at 490.) Dr. Alejo
noted he was “giving [plaintiff] some Tylenol
#3,” and that plaintiff would follow up with
him for pain. (Id.)
On February 19, 2014, plaintiff saw Dr.
Alejo and reported continued lower back

9

impingement at C5-C6, asymmetrical left
neural foraminal narrowing at C3-C4,
bilateral neural foraminal narrowing greater
on the left at C4-C5, and asymmetrical left
neural foraminal narrowing at C6-C7 without
acute fracture or cord compression. (AR at
456.)

pain, that he had been completely unable to
work since the injury, and that none of the
previous treatment helped. (AR at 488-89.)
Plaintiff visited Dr. Alejo again on May 1,
June 12, July 3, and September 4, 2014. (AR
at 479-87.) Dr. Alejo made similar findings
at
these
visits,
including
lumbar
radiculopathy, tight lumbar spine, limited
range of motion, antalgic loading, and lower
back pain. (Id.) Dr. Alejo continued to find
that plaintiff was “100% permanently
disabled from his previous occupation as a
corrections officer.” (AR at 479, 482, 485.)

On November 14, 2014, Dr. Alejo saw
plaintiff and reviewed his cervical spine
MRI. (AR at 452.) He noted that plaintiff
had a history of anxiety, lumbar back pain
with radiculopathy, and hypertension. (Id.)
Based on his examination, Dr. Alejo found
that plaintiff had a stiff head and neck;
tenderness and tightness in the spine, ribs
pelvis, and cervical spine; guarded and
limited lumbar range of motion with antalgic
loading; bilateral shoulder motion guarded
from neck pain; and hip motion guarded from
lower back pain. (AR at 454.) Dr. Alejo
referred plaintiff for physical therapy twice to
three times per week for eight weeks, noted
EMG/NCV pending, and prescribed Tylenol
with Codeine #3 and Mobic. (AR at 454-55.)

On September 23, 2014, plaintiff had a
cardiovascular consultation with Roger S.
Kersten, D.O. (“Dr. Kersten”). (AR at 499.)
Plaintiff told Dr. Kersten that he was retired,
and had a “secondary disability” from his job
as a correction officer. (AR at 500.) Plaintiff
informed Dr. Kersten that he used an
elliptical machine for exercise. (Id.)
On October 31, 2014, plaintiff was in a
car accident. (AR at 466.) Plaintiff was in
the driver’s seat when the car was rear-ended,
and the airbags did not deploy. (Id.)
Plaintiff’s records indicate that he denied
having a loss of consciousness, but that, at the
time of the accident, he experienced head,
lower back, and right shoulder pain. (Id.)

Plaintiff had EMG/NCV studies
performed on December 3, 2014. (AR at
461.) The studies showed “evidence of
bilateral C6-C7 Radiculopathy.” (AR at
463.) That same day, Dr. Alejo saw plaintiff
and reviewed his EMG/NCV studies. (AR at
511.) He noted antalgic gait, stiffness in his
neck; tenderness in his spine, ribs, c-spine,
and lumbar spine, with guarded and limited
lumbar range of motion; guarded range of
motion of both shoulders due to neck pain;
and guarded range of motion of both hips due
to lower back pain. (AR at 511-12.) Dr.
Alejo and plaintiff also discussed the
importance of regular exercise. (Id.)

On November 5, 2014, plaintiff visited
Dr. Alejo, who noted that plaintiff had been
in a motor vehicle accident and complained
that his lower back pain had gotten worse.
(AR at 457.) Dr. Alejo also noted “neck and
back pain,” and that this assessment was new.
(AR at 460.) Dr. Alejo ordered MRIs of
plaintiff’s cervical and lumbar spine,
recommended physical therapy, and
encouraged plaintiff to lose weight. (AR at
459-60.)

On February 23, 2015, plaintiff saw
chiropractor Ruth A. Vitaglione, D.C. (“Dr.
Vitaglione”), for an independent medical
examination for his No-Fault insurance claim
related to his car accident. (AR at 466.) On
examination, Dr. Vitaglione noted that

A cervical spine MRI taken on November
10, 2014 showed: straightening of the
cervical lordosis with central cord
impingement and bilateral exiting nerve root

10

plaintiff was experiencing headaches, neck
pain, stiffness, tightness, tingling down his
right arm, and lower back pain. (AR at 467.)
She also found that plaintiff moved about
without difficulty and had good posture, even
gait, and normal movements. (AR at 468.)
An examination of the cervical spine and
upper
extremities
showed
palpation
tenderness over the bilateral trapezius area,
but no spasms or active trigger points. (Id.)
Plaintiff’s range of motion was within normal
limits and did not elicit complaints of pain.
(Id.) Plaintiff had +2 symmetric reflexes, no
alteration of normal sensation, and full motor
function. (Id.) An examination of the lumbar
spine and lower extremities showed palpation
tenderness at L4-L5, no spasms, and range of
motion within normal limits at 60 degrees in
flexion, 25 in extension, and 25 in lateral
flexion bilaterally. (AR at 469.) Plaintiff had
+2 symmetric reflexes, no alteration of
normal sensation, and full motor functioning.
(Id.) Plaintiff was able to walk on his heels
and toes, and straight leg raise was negative
to 90 degrees bilaterally. (Id.)

spine and found that plaintiff had mild spasm
and tenderness; range of motion to 45 of 50
degrees in flexion, 45 of 60 degrees in
extension, 60 of 80 degrees in rotation on the
right and 70 of 80 on the left, and 35 of 45
degrees lateral flexion on the right and 40 of
45 on the left; full motor strength; and normal
sensation. (AR at 474.) Dr. Weiss examined
plaintiff’s lumbar spine and found mild
spasm and tenderness; range of motion to 50
of 60 degrees in flexion, 20 of 25 in
extension, and 20 of 25 in lateral bending
bilaterally; normal sensation; and 2+
reflexes. (Id.) Straight leg raise was positive
on the left at 70 degrees. (Id.) Dr. Weiss
found that plaintiff had a resolving cervical
and lumbar strain/sprain. (Id.) Dr. Weiss
noted that plaintiff was retired, “so work
[wa]s not an issue.” (AR at 475.)
Plaintiff saw Dr. Alejo again on February
25, 2015. (AR at 476.) Dr. Alejo found that
plaintiff showed no notable changes, and
made similar findings as at past visits. (AR
at 476-78.) At a March 25, 2015 visit, Dr.
Alejo noted that plaintiff complained of
worsening lower back and neck pain as a
result of his motor vehicle accident, and
recommended a cervical epidural injection.
(AR at 525.)

Dr. Vitaglione diagnosed plaintiff with a
resolving cervical and lumbar strain/sprain.
(Id.) She stated that it was “[her] professional
opinion, based on the clinical evaluation of
[plaintiff] . . . that a causal relationship exists
between the injuries sustained and the
accident, superimposed on prior cervical and
lumbar spine injuries.” (Id.) She also
recommended continued chiropractic care
once a week for six weeks, followed by
another assessment at the end of that period.
(AR at 470.)

Plaintiff also saw Dr. Kersten again on
March 25, 2015, and reported intermittent
neck pain and mild to moderate lower back
pain. (AR at 493.)
On April 22, 2015, Dr. Alejo completed a
“Medical Source Statement of Ability to Do
Work-Related Activities (Physical)” form. 5
(AR at 528-33.) Dr. Alejo stated that, since
March 6, 2011, plaintiff could lift and carry
up to twenty pounds occasionally, and could
sit, stand, or walk less than one hour each.
(AR at 528-29.) Dr. Alejo did not respond to

On February 23, 2015, plaintiff also saw
orthopedic surgeon Richard Weiss (“Dr.
Weiss”) for an independent examination for
his No-Fault insurance claim. (AR at 47275.) Dr. Weiss examined plaintiff’s cervical

5

This is a Social Security Administration, Office of
Disability Adjudication and Review form.

11

points. (Id.) Dr. Pollack examined plaintiff’s
upper extremities and found range of motion
limitations in his shoulders, but otherwise full
range of motion; full strength; no sensory
abnormality; and physiologic and equal
reflexes. (Id.) She examined his lumbar
spine and found range of motion to 30
degrees in flexion and extension, 10 degrees
in lateral flexion bilaterally, and 10 degrees
in rotary movements bilaterally; and lumbar
and lumbar paraspinal tenderness. (Id.) Dr.
Pollack found straight leg raise was negative
bilaterally. (Id.) She also found some range
of motion limitations in plaintiff’s lower
extremities, but full strength, no sensory
abnormalities, no muscle atrophy, and
physiologic and equal reflexes. (AR at 537.)
She concluded that plaintiff had the
following restrictions: a marked restriction
in bending, lifting, carrying, pushing, and
pulling; a mild restriction in reaching; and
moderate to marked restrictions in walking,
standing, sitting, climbing stairs, kneeling,
and squatting. (Id.)

the question in this form that asked, if the
total time for sitting, standing, and walking,
was less than eight hours, what the individual
could do for the remainder of an eight-hour
work day. (AR at 529.) Dr. Alejo described
the extent to which plaintiff could perform
other activities: plaintiff could reach and
push or pull occasionally; plaintiff could
occasionally use his right foot to operate foot
controls, but could never do so with his left
foot; plaintiff could never climb, crouch, or
crawl; and plaintiff could never be exposed to
unprotected heights, moving mechanical
parts, humidity and wetness, pulmonary
irritants, extreme cold or heat, or vibrations.
(AR at 530-31.) Plaintiff could, however, use
his hands frequently for handling, fingering,
and feeling; occasionally stoop and kneel;
frequently balance; and frequently operate a
motor vehicle. (Id.) Dr. Alejo indicated that
plaintiff’s limitations had lasted for over a
year. (AR at 533.)
On May 21, 2015, plaintiff saw Andrea
Pollack, D.O. (“Dr. Pollack”), for an
orthopedic examination for the Division of
Disability Determination. (AR at 535.) Dr.
Pollack noted that plaintiff complained of
lower back and neck pain “suffered in a
work-related injury as well as a car accident.”
(Id.) Plaintiff also reported daily headaches
and described his lower back pain as constant
and sharp, rated it a pain level of eight to nine
out of ten, and reported that it radiated into
his left foot and left arm. (Id.) Dr. Pollack
observed that plaintiff needed no help
changing for the examination or getting on
and off the examination table, and could rise
from a chair without difficulty. (AR at 536.)
She noted that plaintiff had intact hand and
finger dexterity and full grip strength. (Id.)
She examined plaintiff’s cervical spine and
found range of motion to 15 degrees in
flexion and extension, 5 degrees in left lateral
flexion bilaterally, and 30 degrees in rotary
movements bilaterally; cervical and
paracervical tenderness; and no trigger

On October 5, 2015, Dr. Pollack
completed a “Medical Source Statement of
Ability to Do Work-Related Activities
(Physical)” form. (AR at 556-61.) Dr.
Pollack reported that plaintiff could do the
following activities: lift and carry up to ten
pounds continuously and 20 pounds
occasionally; sit for 30 minutes, stand for 15
minutes, and walk for 15 minutes, each at one
time without interruption; stand for one hour,
walk for one hour, and sit for eight hours total
in an eight-hour workday. (AR at 557.) Dr.
Pollack also found that plaintiff could do the
following: occasionally use his hands for
pushing and pulling, frequently for reaching,
and continuously for handling, fingering, and
feeling; and occasionally climb stairs and
ramps and balance, stoop, kneel, crouch, and
crawl. (AR at 558-59.) She found that he
could never do the following: use his feet to
operate foot controls, or climb ladders or
scaffolds. (Id.) She also found that plaintiff

12

to identify any functional limitations or
restrictions that result from the impairments
listed earlier in the form. (AR at 571.) Dr.
Kwock wrote that the “objective evidence”
was “somewhat contradictory,” but that, “on
physical examination [plaintiff] d[id] not
appear to have much impairment from the
root involvement in that motor/sensory
examination is normal,” and bilateral straight
leg raise testing was normal. (Id.)

could never be exposed to unprotected
heights, extreme cold or heat, or vibrations;
but could occasionally be exposed to moving
mechanical parts, operating a motor vehicle,
and humidity and wetness, and continuously
to pulmonary irritants. (AR at 560.) Dr.
Pollack found that plaintiff was limited to a
quiet or library-type noise. (Id.) She found
that he could perform activities such as
shopping; traveling without a companion for
assistance;
using
standard
public
transportation; preparing simple meals and
feeding himself; and sorting, handling, and
using paper files. (AR at 561.) Dr. Pollack
identified plaintiff’s neck and back pain and
headaches as the particular medical or
clinical findings supporting her assessment.
(AR at 560.)

Dr. Kwock also reported in this form that
plaintiff could do the following: lift and carry
up to 10 pounds continuously, 20 pounds
frequently, and 50 pounds occasionally; sit,
stand, and walk for four hours each, and a
total of seven hours in an eight-hour
workday; use his hands continuously for all
activities listed in the form except for
reaching overhead with the left arm, which
Dr. Kwock found he could do frequently;
frequently use his feet to operate foot
controls; frequently climb ramps and stairs
and balance; and occasionally kneel and
crouch. (AR at 563-66.) Dr. Kwock found
that plaintiff could never climb ladders or
scaffolds, stoop, or crawl. (AR at 566.) Dr.
Kwock also found that plaintiff could be
exposed occasionally to unprotected heights,
and frequently to moving mechanical parts or
operating a motor vehicle. (AR at 567.) Dr.
Kwock found that plaintiff could perform
activities such as shopping; traveling without
a companion for assistance; using standard
public transportation; preparing simple meals
and feeding himself; and sorting, handling,
and using paper files. (AR at 568.)

On June 13, 2015, medical expert John F.
Kwock, M.D. (“Dr. Kwock”), an orthopedic
surgeon, completed the same “Medical
Source Statement of Ability to Do WorkRelated Activities (Physical)” form. (AR at
563-71.)
Dr. Kwock never examined
plaintiff, but completed this form based on
the
evidence
the
Social
Security
Administration furnished for him regarding
plaintiff’s condition. (AR at 569.) Dr.
Kwock reported that he found that plaintiff
had a “mild impairment in lifting and
carrying capacity” and in “overhead use of
[the] left shoulder.” (Id.) In response to the
question
asking
whether
plaintiff’s
impairments met or equaled the criteria of a
listed impairment, Dr. Kwock answered no,
although he stated that plaintiff’s cervical and
lumbar spine impairments met Listing 1.04A.
(AR at 570.) He qualified, however, that the
level of severity of plaintiff’s impairments
did not meet Listing 1.00(b)(2)(b) or (c).
(Id.) Dr. Kwock did not respond to the
question asking for additional information if
plaintiff had an impairment that met one of
the listed impairments.
(Id.) The next
question asked, if plaintiff was found not to
meet or equal a listing, for the medical expert

C. Relevant Testimonial Evidence
The administrative hearing was held on
April 30, 2015 in Central Islip, New York,
before ALJ Patrick Kilgannon. (AR at 32.)
Plaintiff testified that he had worked as a
correction officer for Nassau County from
1995 until 2013, where he “[s]upervised
inmates” and was responsible for their
“[c]are, custody and control.” (AR at 38.)
13

you know, pain – painful all day.
With regards to my neck, I have
problems sleeping and I can’t get – I
can’t sleep at night. I can’t get
comfortable. Spasms a lot, where I
could just – a slight turn in the shower
will make me just not be able to move
it for a few days, and turn my head. I
also get headaches from my neck
injury, on the base of my neck,
radiating into my head, and
sometimes I have to lay down.

Plaintiff sustained injuries in a work accident
in 2011, after which he returned to work from
2012 to 2013 and was assigned to light-duty
work “in a restricted area with no inmate
contact.” (AR at 40, 44.) Plaintiff’s
responsibilities in his light-duty work
capacity included “basically just opening
gates and opening – pressing buttons.” (AR
at 44.) During this period, he was seated the
majority of the time but had “room to move
around and stretch.” (Id.) Plaintiff had
trouble performing this work because of his
pain—he testified that he “was in pain pretty
much every day [he] went to work”—and
“took a lot of time off.” (AR at 44-45.)
Plaintiff retired on disability pension in
January 2013. (AR at 45.)

(AR at 41.) Plaintiff stated that his neck pain
“goes through like my top, [left] shoulder,
into my [left] arm. Sometimes I get a little
numbness and tingling in my fingers.” (AR
at 43, 47.) Plaintiff also discussed difficulty
sleeping due to his neck pain, describing his
sleep as “horrible,” and testifying that he was
“up every, probably hour, trying to get
comfortable. I can’t get comfortable with my
neck, my back, so I get an hour at a time, and
maybe – maybe four or five hours a night.”
(AR at 42.) Plaintiff testified that he napped
“[p]retty much everyday” for approximately
half an hour. (AR at 42-43.) He stated that
he was most comfortable sitting, but that he
could sit for only 20 to 25 minutes at a time
before needing to “get up and switch
positions.” (AR at 43.) Plaintiff testified that
he would sometimes keep his legs elevated
while sitting in a massaging recliner, but
would get up frequently to switch positions.
(Id.) During the hearing, he requested
permission from the ALJ to stand and stretch
his legs. (AR at 46.)

Plaintiff testified that his pain from his
injuries had gotten progressively worse. (Id.)
He stated that his pain had been bad, but that
it “got real bad” by May 2014. (Id.) Then, in
late 2014, plaintiff injured his neck in a motor
vehicle accident.
(Id.)
Plaintiff had
“previous injuries to [his] neck from
numerous inmate altercations, assaults, going
back, and throughout [his] career,” but his
neck pain increased after his accident. (Id.)
He testified that “the pain just got severely
worse, but the headaches, the headaches were
just really, really bad.” (AR at 46.) Plaintiff
stated that “[t]he pain going into [his] arm,
[his] back pain got a little worse.” (Id.)
Plaintiff testified that, at the time of the
hearing, he had headaches daily that lasted an
hour or longer. (Id.) Plaintiff testified that he
had constant pain in his neck and lower back,
providing the following description:

He stated that he would take Codeine or
Tylenol for his headaches and, “if it’s really
bad,” he would lie down in bed and shut his
eyes. (Id.) He testified that he had to lie
down due to headaches daily. (Id.)

From my back I get severe low back
pain, I get burning, tingling,
numbness going down my left leg,
nerve pain. It almost, sometimes,
feels like . . . when I try to get up, it
feels like pins and needles, and my
leg will give out. Just real difficulty
doing anything with my back. It’s

Plaintiff testified that he saw Dr. Alejo
“for worker’s comp[ensation] and no-fault”
approximately every six weeks for each, and
went to physical therapy three times per week
14

struggled to type because of numbness and
tingling in his left hand. (AR at 47.) Plaintiff
testified that he did not lift weights, estimated
that he could lift only five to ten pounds, and,
when asked, responded that he was not sure
he could lift a gallon of milk. (Id.) Plaintiff
testified that he had trouble standing for long
periods of time, and needed to sit after 20 to
30 minutes. (AR at 47-48.) He stated that
when he got up from sitting to walk, he got a
tingling and numbness, and “[t]he nerve pain
goes down to my leg, into my foot, my ankle.
Sometimes my leg gives out while I get up,
and then, while I walk the same thing will
happen, and then I’ll get sharp pain going
right down the leg in the back.” (AR at 48.)
He stated that he also had difficulty bending
and squatting, that he could not kneel, and
that he felt discomfort when reaching
overhead. (AR at 48-49.)

for his neck pain (although not for his back
pain at the time of the hearing). (AR at 3940.)
Plaintiff testified that he took
Meloxicam, Tylenol 3, Codeine, and
Lisinopril for high blood pressure. (AR at
39.) Plaintiff testified that he had been
receiving physical therapy for his lower back
injury until Workers’ Compensation
“stopped” the treatment.
(AR at 40.)
Plaintiff testified that he experienced
dizziness and fatigue from Meloxicam, and
that extreme temperatures exacerbated his
pain. (AR at 42.) Plaintiff had epidural
injections in his lower back, but he testified
that they only relieved his pain
“[t]emporarily, for maybe a week, and then it
just went back to the exact same thing.” (AR
at 39, 42.)
Plaintiff’s doctor, Dr. Avanesov,
recommended lumbar spine surgery, but
plaintiff testified that he decided against it
due to the risks. (AR at 40.) The doctor

Impartial vocational expert Edna Clark
also testified at the administrative hearing.
(AR at 49-56.) The vocational expert
identified plaintiff’s past work as a correction
officer, DOT 372.667-018. (AR at 49.) She
testified that this job is usually performed at
the medium work level, with an SVP of 4, in
the national economy, and found that plaintiff
had performed the job at the heavy level.
(Id.)

went over . . . both the risks and the
success, and I just wasn’t comfortable
with a lot of the risks. I have three
teenagers . . ., and one of my partners
had the same surgery . . . [and] it
wasn’t successful. He’s worse off
now and I’m just scared to get that.
(AR at 40-41.) Plaintiff testified that his
doctors have not recommended neck surgery.
(AR at 41.)

The ALJ asked the vocational expert to
consider hypothetical individuals of the same
age, education, and work experience as
plaintiff, with different residual functional
capacities. First the ALJ asked her to
consider an individual with a light exertional
limitation, who could: lift up to 20 pounds
occasionally and 10 pounds frequently;
stand, walk, and sit each for approximately
six hours per an eight-hour work day, with
normal breaks; occasionally climb ladders,
ropes, scaffold, stairs, and ramps; and
occasionally balance, stoop, kneel, crouch,
and crawl. (AR at 49-50.) The vocational
expert found that, with these limitations,

Plaintiff testified regarding his daily
activities: “I go to physical therapy three
times a week, and, well, I don’t do much. I
watch TV, I read the paper, maybe try to read
a book,” but he testified that it was “tough
concentrating” due to his pain. (AR at 4344.) He testified that he only did “light”
housework. (AR at 44.) He stated that he
could pick up after himself, and would
sometimes load the dishwasher or clean the
countertops, “but that’s about it.” (Id.)
Plaintiff testified that he used a computer, but

15

limitations that the hypothetical individual
needed to have his feet elevated to 90 degrees
occasionally throughout the day. (AR at 54.)
The vocational expert testified that a person
“couldn’t do that on a job.” (AR at 55.)
Plaintiff’s attorney next asked about a
hypothetical individual with the same
limitations as the ALJ posed, but who had to
be off-task ten percent of the day, and the
vocational expert said such a person “could
not perform the job.” (AR at 56.)

plaintiff’s past work was eliminated. (AR at
50.) The vocational expert testified that a
hypothetical individual with these limitations
could, however, perform other jobs in the
local, regional, and national economy, such
as that of a cafeteria attendant (DOT 311.677010, light work with an SVP of 2, with 90,000
jobs in the national economy), cashier (DOT
211.162-010, light with an SVP of 2, with
300,000 jobs in the national economy), or
final assembler (DOT 789.686-046, light
work with an SVP of 2, with 12,000 jobs in
the national economy). (AR at 50.) The ALJ
next asked the vocational expert to assume
the same hypothetical, but this time that the
individual had a sedentary exertional
limitation, and the vocational expert stated
that such a person could perform a job as a
surveillance system monitor (DOT 379.367010, sedentary work with an SVP of 2, with
34,000 jobs in the national economy), a new
accounts clerk (DOT 205.367-017, sedentary
work with an SVP of 2, with 25,000 jobs in
the national economy), or as an order clerk
(DOT 209.567-014, sedentary work with an
SVP of 2, with 37,000 jobs in the national
economy). (AR at 51-52.) Finally, the ALJ
noted that there was a medical source
statement in plaintiff’s file that “doesn’t
allow eight hours of sitting, standing or
walking,” and the vocational expert
confirmed that limitation would preclude all
work. (AR at 53.)

II. PROCEDURAL BACKGROUND
A. Administrative History
On March 20, 2013, plaintiff filed a Title
II application for Social Security Disability
Insurance Benefits, alleging disability as of
July 4, 2012. (AR at 17.) Plaintiff’s
application for benefits was denied on
September 23, 2013, and plaintiff requested a
hearing before an ALJ. (Id.) Plaintiff
appeared with counsel and testified at a
hearing before ALJ Patrick Kilgannon on
April 30, 2015, in Central Islip, New York.
(Id.) Vocational expert Edna Clark also
testified at this hearing. (Id.) On August 8,
2015, ALJ Kilgannon denied plaintiff’s
disability insurance benefits claim. (AR at
25.) On December 12, 2016, the Appeals
Council denied plaintiff’s request for review,
making the ALJ’s decision the final decision
of the Commissioner. (AR at 1.)
B. The Instant Case

After the ALJ finished questioning the
vocational expert, plaintiff’s attorney posed
questions regarding variations on the ALJ’s
hypotheticals.
First, plaintiff’s attorney
asked the vocational expert to consider,
within the sedentary positions, that the same
individual could perform only occasional
reaching in all directions and occasional
pushing and pulling, and the vocational
expert testified that those limitations would
eliminate the surveillance system monitor
and new account clerk jobs. (AR at 53-54.)
Plaintiff’s attorney then added to those

Plaintiff commenced this lawsuit on
February 3, 2017. (ECF No. 1.) On August
7, 2017, plaintiff moved for judgment on the
pleadings.
(ECF No. 10.)
The
Commissioner submitted a cross-motion for
judgment on the pleadings on October 20,
2017. (ECF No. 15.) On November 9, 2017,
plaintiff responded to the Commissioner’s
cross-motion for judgment on the pleadings.
(ECF No. 16.) On December 1, 2017, the
Commissioner filed a reply in further support
of her cross-motion for judgment on the
16

pleadings. (ECF No. 18.) The Court has
fully considered the parties’ submissions.

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 Social Security Act unless it is “of such
severity that he is not only unable to do his
previous work but cannot, considering his
age, education, and work experience, engage
in any other kind of substantial gainful work
which exists in the national economy.” Id.
§ 1382c(a)(3)(B).

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

The Commissioner has promulgated
regulations establishing a five-step procedure
for evaluating disability claims. 6 See 20
C.F.R. §§ 404.1520, 416.920. The Second
Circuit has summarized this procedure as
follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such
an
impairment,
the
[Commissioner]
next
considers
whether the claimant has an
impairment 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

IV. DISCUSSION
A. The Disability Determination
A claimant is entitled to disability
benefits if the claimant is unable “to engage

6

The ALJ performs this five-step procedure in the first
instance; the Appeals Council then reviews the ALJ’s
decision and determines if it stands as the

Commissioner’s final decision. See, e.g., Greek, 802
F.3d at 374.

17

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.

no evidence the condition causes greater than
a de minimis effect on his ability to engage in
work related activity.” (AR at 20.) The ALJ
also noted that plaintiff’s hypertension was
well controlled with medication, that he did
not experience any “debilitating” symptoms,
and that the condition was therefore “not
severe” for the purposes of this decision.
(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.

At step three, the ALJ concluded that
plaintiff did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526).
(Id.)

The Commissioner must consider the
following in determining a claimant’s
entitlement to benefits: “(1) the objective
medical facts; (2) diagnosis 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)).

At step four, the ALJ found that plaintiff
did not have the residual functional capacity
to perform his past relevant work, but had the
residual functional capacity to perform light
work with certain limitations. (AR at 21, 23.)
The ALJ wrote that, after careful
consideration of the entire record, he found
that: “[plaintiff] has the residual functional
capacity to perform light work7 as defined in
20 C.F.R. [§] 404.1567(b) except that he can
only occasionally kneel, bend, climb,
balance, and crouch. He can never stoop or
crawl. He can only occasionally reach above
shoulder level.” (AR at 21.)

B. The ALJ’s Ruling
In the instant case, the ALJ first noted that
plaintiff met the insured status requirements
of the Social Security Act through December
31, 2017. (AR at 19.) Next, at the first step
in the five-step sequential process described
supra, the ALJ determined that plaintiff had
not engaged in substantial gainful activity
since July 4, 2012, the date of the alleged
onset of his disability. (Id.) At step two in
the five-step process, the ALJ determined
that plaintiff had the following severe
impairments: degenerative disc disease and
arthritis. (Id.) The ALJ noted that plaintiff
also “suffers from hypertension, but there is

In reaching this conclusion, the ALJ
stated that he followed a two-step process, in
which an ALJ first determines whether there
is an underlying medically determinable
physical or mental impairment. (AR at 2122.) Second, after finding that an underlying
physical or mental impairment that could be
reasonably expected to produce plaintiff’s

7

Light work is defined as work that “involves lifting
no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds,” as
well as work that “requires a good deal of walking or
standing . . . or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” 20 C.F.R.

§ 404.1567(b). Further, an individual who can
perform light work “can also do sedentary work,
unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of
time.” Id.

18

plaintiff’s
medically
determinable
impairments “could reasonably be expected
to produce the alleged symptoms.” (Id.) At
the second step, however, he found that
plaintiff’s statements about the intensity,
persistence, and limiting effects of these
symptoms were “not entirely credible.” (Id.)
As stated supra, the ALJ determined that
plaintiff had the residual functional capacity
to perform light work with limitations. The
ALJ concluded that “the above residual
functional capacity assessment is supported
by the medical evidence of record and
[plaintiff’s] own appearance at the hearing.”
(AR at 23.)

pain or other symptoms has been shown, the
ALJ is required to evaluate the intensity,
persistence, and limiting effects of plaintiff’s
symptoms to determine the extent to which
they limit plaintiff’s functioning.
(Id.)
Whenever statements about the intensity,
persistence, or functionally limiting effects of
pain or other symptoms are not substantiated
by objective medical evidence, the ALJ must
make a finding on the credibility of the
statements based on the ALJ’s consideration
of the entire case record. (Id.)
The ALJ began his analysis by
summarizing plaintiff’s testimony at the
hearing. (Id.) He noted that plaintiff
“testified he has constant burning pain and
numbness in his neck, back, and extremities
. . . [and] has headaches and cannot sleep.”
(Id.) The ALJ also noted that plaintiff cannot
sit for more than twenty minutes, lift more
than ten pounds, or reach overhead, and that
plaintiff lives with his parents, “who help him
with chores and care.” (Id.) On the other
hand, the ALJ observed that “at the hearing,
[plaintiff] appeared to walk normally and he
sat comfortably throughout the hour-long
hearing without having to shift positions or
get up and walk around. He was not wearing
a back brace or a cervical collar. He did not
need a cane or crutch.” (Id.) The ALJ noted
that plaintiff “has not attempted to find and
hold a job” since the onset of his disability,
but plaintiff is capable of driving a car,
traveling alone, and caring for his personal
needs without assistance. (Id.) The ALJ
concluded: “[b]ased on these observations
and inconsistencies, the undersigned
concludes [plaintiff’s] testimony concerning
his symptoms and limitations is not
supported by the evidence of record and is
deemed not fully credible.” (Id.)

In support of his determination as to
plaintiff’s residual functional capacity, the
ALJ summarized the opinions of plaintiff’s
treating physicians and medical experts who
assessed plaintiff for the Workers’
Compensation Board and Social Security
Administration, plaintiff’s medical records,
and plaintiff’s testimony. (AR at 22-23.) The
ALJ discussed the opinions of three of
plaintiff’s treating physicians and three of the
medical examiners who evaluated plaintiff’s
condition. (Id.) The ALJ gave the greatest
weight to the opinion of Dr. Kwock, one of
the medical experts, who found that plaintiff
could sit, stand, and walk for seven hours
total in an eight-hour workday. (AR at 23.)
The ALJ gave some weight to treating
physician Dr. Avanesov’s opinion, which
included that plaintiff sustained “total
moderate disability,” but noted that he gave
“less weight” to Dr. Avanesov’s opinion that
plaintiff was limited to standing for only an
hour “as he walks normally without an
assistive device.” (Id.) The ALJ gave “little
weight” to the opinions of treating physician
Dr. Alejo and medical examiner Dr. Pollack,
and discussed the opinions of Drs. Ruotolo
and Weiss without stating how much weight
he assigned. (AR at 22-23.)

Concluding the first step of determining
plaintiff’s residual functional capacity to
work, the ALJ stated that, after he carefully
considered all of the evidence, he found that

19

the national economy). (Id.) The ALJ stated
that he was “persuaded that this is a
significant amount of jobs.” (Id.)

After concluding his analysis and finding
that plaintiff could perform light work with
the aforementioned limitations, the ALJ
determined that plaintiff was unable to
perform past relevant work because his job as
a correction officer “required heavy
exertional effort.” (Id.)

Based on the testimony of the vocational
expert, and considering plaintiff’s age,
education, work experience, and residual
functional capacity, the ALJ concluded that
plaintiff was capable of making a successful
adjustment to other work that existed in
significant numbers in the national economy.
(AR at 24-25.) The ALJ found that plaintiff
was, therefore, not disabled from the onset of
his disability on July 4, 2012 through the date
of the ALJ’s decision. (Id.)

Moving to the final step of the five-step
process, the ALJ determined that,
considering plaintiff’s age, education, work
experience, and residual functional capacity,
there were jobs that existed in significant
numbers in the national economy that
plaintiff could perform. (AR at 24.) In
determining whether a successful adjustment
to other work could be made, the ALJ
considered plaintiff’s residual functional
capacity, age, education, and work
experience in conjunction with the MedicalVocational Guidelines, 20 CFR Part 404,
Subpart P, Appendix 2. (Id.) The ALJ
explained that, if plaintiff had the residual
functional capacity to perform the full range
of light work, the Medical-Vocational
Guidelines would direct a finding of “not
disabled.” (Id.) The ALJ had found,
however, that plaintiff’s ability to perform all
or substantially all of the requirements of
light work was impeded by additional
limitations. (Id.) To determine the extent to
which plaintiff’s aforementioned limitations
eroded the unskilled light occupational base,
the ALJ had asked the vocational expert
whether jobs existed in the national economy
for an individual with plaintiff’s age,
education, work experience, and residual
functional capacity. (Id.) The ALJ noted in
his decision the vocational expert’s testimony
that, given all of these factors, the individual
would be able to perform the requirements of
representative occupations such as a cafeteria
attendant (DOT 311.677-010, with 90,000
jobs in the national economy), surveillance
system monitor (DOT 379.367-010, with
34,000 jobs in the national economy), or final
assembler (789.686-046, with 12,000 jobs in

C. Analysis
Plaintiff challenges the ALJ’s decision,
finding that plaintiff has not been disabled
since July 4, 2012, and denying him disability
insurance benefits. Specifically, plaintiff
asserts that the ALJ: (1) incorrectly found
that his cervical and lumbar spine injuries did
not meet the requirements of Listing 1.04A,
and (2) failed to properly evaluate the
medical evidence. As set forth below, first,
the ALJ failed to adequately explain his
determination that plaintiff’s impairments
did not meet the listing requirements.
Second, the ALJ failed to properly evaluate
the medical evidence. In particular, the ALJ
failed to provide good reasons for not
crediting plaintiff’s treating physicians’
opinions and for assigning controlling weight
to one of the medical examiners’ opinions.
Thus, remand is warranted, and the Court
need not, and does not, address plaintiff’s
credibility argument.
1. Failure to Meet the Requirements of
Listing 1.04A
As discussed supra, after the ALJ found
that plaintiff had severe impairments, the
third step of the five-step procedure for
evaluating disability claims required the ALJ
to determine if plaintiff’s impairments met or
medically equaled impairments listed in
20

Appendix 1 of the regulations. 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526; Brown,
174 F.3d at 62 (citation omitted). If so, the
ALJ would find plaintiff disabled. 20 C.F.R.
§ 404.1520(d). The ALJ determined that
plaintiff’s severe impairments (degenerative
disc disease and arthritis) “d[id] not meet the
listing in section 1.04.”8 (AR at 21.)

remainder of his decision failed to
demonstrate that it was supported by
substantial evidence.
The ALJ began this step by establishing
the Section 1.04 requirements: in order to
meet this listing, plaintiff “would have to
have demonstrable diagnosis of herniated
disc, . . . degenerative disc disease, . . . [or]
facet arthritis . . . resulting in a compromise
of the nerve root.” (AR at 21.) Additionally,
“[i]f the allegation relates to a compromise of
the nerve root or the spinal cord, nerve root
compression must be demonstrated along
with neuroanatomic distribution of pain,
limitation of motion[,] and motor loss
accompanied by sensory or reflex loss.” (Id.)
The ALJ noted that “[a]s this instant claim
alleges a lumbar impairment, positive
straight leg raising test in the seated and
supine position is also required.” (Id.)

At this stage in the five-step procedure,
an ALJ will find that a claimant has shown
his or her impairment matches a listing only
if it “meet[s] all of the specified medical
criteria. An impairment that manifests only
some of those criteria, no matter how
severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). In order to
meet the requirements of a listing, the
impairment must “satisf[y] all of the criteria
of that listing, including any relevant criteria
in the introduction, and meet[] the duration
requirement.” 20 C.F.R. § 404.1525(c)(3).
The duration requirement is that, “[u]nless
your impairment is expected to result in
death, it must have lasted or must be expected
to last for a continuous period of at least 12
months.” 20 C.F.R. § 404.1509. The
claimant bears the burden of proving that his
or her impairment meets the requirements of
a listing. See Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996) (explaining that the burden
shifts to the Commissioner at step five, after
“the claimant satisfies her burden of proving
the requirements in the first four steps”).

The ALJ then concluded without further
analysis that plaintiff’s impairments “do[] not
satisfy these listing parameters” and that
plaintiff, therefore, “does not meet the listing
in section 1.04.” (Id.) The Court not only
finds this rationale to be inadequate, but also
finds that the record does contain evidence of
the listing criteria. As plaintiff points out, the
administrative record contains evidence that
plaintiff was diagnosed with herniated discs
(e.g., AR at 298, 314, 318, 428), degenerative
disc disease (e.g., AR at 298, 314, 394), and
facet arthritis (e.g., AR at 271, 318). The
record also contains evidence of nerve root
compression characterized by neuroanatomic
distribution of pain (e.g., AR at 264, 270,
454, 479-87), limitation of motion (e.g., AR
at 280, 441, 454, 479-87), motor loss
accompanied by sensory or reflex loss (e.g.,
AR at 264, 295, 400), and positive straight

The Second Circuit has stated that courts
may uphold an ALJ’s determination at step
three even in “the absence of an express
rationale” where “portions of the ALJ’s
decision . . . indicate that his conclusion was
supported by substantial evidence.” Berry v.
Schweiker, 675 F.2d 464, 468 (2d Cir. 1982).
The Court finds that the ALJ’s decision at this
step lacked an express rationale, and that the

8

The ALJ also found that plaintiff’s impairments did
not meet the criteria of Section 1.02, but plaintiff

challenges only the determination as to Section 1.04.
(ECF No. 10-1 at 17-18.)

21

duration of plaintiff’s impairments, or
explain why the medical records containing
this evidence fail to satisfy the listing
requirements. See Temkin v. Astrue, No. 09CV-4246 JFB, 2011 WL 17523, at *9
(E.D.N.Y. Jan. 4, 2011) (concluding that the
ALJ correctly performed step three where he
explained that he had considered medical
expert opinions, that “no treating or
examining physician ha[d] mentioned
findings equivalent in severity,” and that
there was a “complete absence in the record”
of evidence supporting plaintiff’s claim);
Brown, 174 F.3d at 65 (reversing an ALJ’s
decision after finding the determination that
plaintiff’s condition was not medically
equivalent to a listed impairment “[wa]s no
longer a reasonable interpretation of the
medical evidence in the record”). As other
courts in this circuit have correctly found:

leg raise (sitting and supine) (e.g., AR at 362,
365, 394, 441).
The government argues that plaintiff
failed to satisfy his burden of showing that his
impairments met or equaled the listing
criteria. In particular, the government argues
that plaintiff failed to meet the duration
requirement. The government points to the
opinions of Drs. Weiss and Vitaglione that
plaintiff’s neck strain or sprain was resolving,
and that plaintiff had normal reflexes,
sensation, and motor strength, by February
2015—“well short of twelve months” after
the November 5, 2014 motor vehicle accident
that caused this particular condition. (ECF
No. 15-1 at 21.) With respect to plaintiff’s
lumbar condition, the government points to
medical
records
including
negative
neurological findings by Drs. Weiss,
Vitaglione, and Pollack in arguing that the
“longitudinal findings were generally
normal.” (Id.)

Although it may be the case that the
ALJ would ultimately have decided
that plaintiff’s impairments did not
meet or equal the requirements of
Listing 1.04A, this possibility does
not relieve the ALJ of his obligation
to discuss the potential applicability
of Listing 1.04A, or at the very least,
to provide plaintiff with an
explanation of his reasoning as to
why plaintiff’s impairments did not
meet any of the listings.

The government identifies potential
weaknesses in plaintiff’s case, but plaintiff
has also put forward substantial evidence that
could support a finding that the listing
requirements were satisfied. In addition to
the evidence discussed supra relating to the
severity of plaintiff’s impairments, the
administrative record includes evidence that
plaintiff’s impairments satisfied the duration
requirement. Dr. Alejo indicated in his April
22, 2015 medical source statement that
plaintiff’s limitations began in March 2011,
and that his impairments have lasted or will
last for twelve consecutive months. (AR at
538.) Likewise, Dr. Pollack indicated in her
October 5, 2015 medical source statement
that plaintiff’s impairments have lasted or
will last for twelve consecutive months. (AR
at 561.)

Norman v. Astrue, 912 F. Supp. 2d 33, 81
(S.D.N.Y. 2012) (citing Kerr v. Astrue, No.
09-CV-01119, 2010 WL 3907121, at *6
(N.D.N.Y. Sept. 7, 2010), report and
recommendation adopted, No. 7:09-CV1119
GLS/VEB, 2010 WL 3893922 (N.D.N.Y.
Sept. 30, 2010) (remanding and explaining
that “given the above cited evidence,
[p]laintiff was owed a more substantive
discussion of why she did not meet Listing
1.04A”)).

The ALJ offered no explanation as to why
he found plaintiff’s impairments failed to
satisfy the listing parameters. His conclusory
statement does not reference the severity or

This is not a case where “the rationale for
the ALJ’s conclusion . . . is clear and is
22

clinical and laboratory diagnostic
techniques and is not inconsistent
with the other substantial evidence in
your case record, we will give it
controlling weight.

supported by substantial evidence.” Temkin,
2011 WL 17523, at *9. The ALJ failed to
state his reason for his determination at step
three, and the Court is unable to conclude that
any of the portions of the ALJ’s decision
indicate that his conclusion is supported by
substantial evidence. The Court, therefore,
remands and directs the ALJ to reconsider the
evidence in the record of plaintiff’s
impairments, and provide an explanation as
to why it meets or fails to meet the criteria of
Section 1.04.

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
Although treating physicians may share their
opinions concerning a patient’s inability to
work and the severity of the disability, the
ultimate decision of whether an individual is
disabled is “reserved to the Commissioner.”
Id. § 404.1527(d)(1); see also Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999) (“[T]he
Social Security Administration considers the
data that physicians provide but draws its
own conclusions as to whether those data
indicate disability.”).

2. Failure to Properly Evaluate the
Medical Evidence
The Commissioner must give special
evidentiary weight to the opinion of the
treating physician. See Clark, 143 F.3d at
118. The “treating physician rule,” as it is
known, “mandates that the medical opinion
of a claimant’s treating physician [be] given
controlling weight if it is well supported by
medical findings and not inconsistent with
other substantial record evidence.” Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also, e.g., Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999); Clark, 143 F.3d at 118. The
rule, as set forth in the regulations, provides:

If the opinion of the treating physician as
to the nature and severity of the impairment
is not given controlling weight, the ALJ must
apply various factors to decide how much
weight to give the opinion. See Shaw, 221
F.3d at 134; Clark, 143 F.3d at 118. These
factors include:
(i) the frequency of
examination and the length, nature, and
extent of the treatment relationship, (ii) the
evidence in support of the opinion, (iii) the
opinion’s consistency with the record as a
whole, (iv) 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
also Clark, 143 F.3d at 118. When the ALJ
chooses not to give the treating physician’s
opinion controlling weight, he must “give
good reasons in his notice of determination or
decision for the weight [he] gives [the
claimant’s] treating source’s opinion.”
Clark, 143 F.3d at 118 (quoting C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2)); see also
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

Generally, we give more weight to
medical 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 wellsupported by medically acceptable

23

not crediting the opinions of a claimant’s
treating physician.”); Santiago v. Barnhart,
441 F. Supp. 2d 620, 627 (S.D.N.Y. 2006)
(“Even if the treating physician’s opinion is
contradicted by substantial evidence and is
thus not controlling, it is still entitled to
significant weight because the treating source
is inherently more familiar with a claimant’s
medical condition than are other sources.”
(citation omitted)). A failure by the ALJ to
provide “good reasons” for not crediting the
opinion of a treating physician is a ground for
remand. See Snell, 177 F.3d at 133; Halloran
v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)
(“We do not hesitate to remand when the
Commissioner has not provided ‘good
reasons’ for the weight given to a treating
physician[’]s opinion and we will continue
remanding when we encounter opinions from
ALJ’s that do not comprehensively set forth
reasons for the weight assigned to a treating
physician’s opinion.”).

“some” and “less” weight to different
portions of the opinion of Dr. Avanesov. Dr.
Alejo treated plaintiff for his “persistent and
radiating” back pain (as well as shoulder and
neck pain) during numerous visits from 2011
through 2015. (E.g., AR at 268, 525.) Dr.
Alejo reviewed two of plaintiff’s EMG/NCV
studies and two of his MRIs, and reported
findings including bulging and herniated
discs, tears, and lumbar radiculopathy. (E.g.,
AR at 359, 425, 452, 463.) Based on his
review of plaintiff’s medical records, in
addition to plaintiff’s complaints, Dr. Alejo
determined on multiple occasions that
plaintiff was 100 percent disabled. The
government highlights that the ALJ gave Dr.
Alejo’s opinion little weight because it
“contain[ed] no specific limitations,” and the
plaintiff’s residual functional capacity
already “accounts for the difficulty reaching
and lifting heavy objects.” (AR at 23.) The
Court is not persuaded that this qualifies as a
good reason. Contrary to his statement, the
ALJ actually had recognized that Dr. Alejo
specified limitations, for instance, by noting
that Dr. Alejo found plaintiff “could not sit,
stand or walk for even an hour total in an 8hour day.” (Id.) Although the ALJ disagreed
with Dr. Alejo’s determination, as discussed
infra, the Court finds lack of specificity does
not serve as a sufficient reason for
discounting Dr. Alejo’s opinion. (Id.) The
ALJ also stated that Dr. Alejo’s opinion as to
plaintiff’s total disability was “contradicted
by the rest of the evidence of record.”9 (Id.)
Based on its independent review of the
record, the Court disagrees. In addition to Dr.
Alejo, treating physicians Drs. Groth,
Avanesov, and Ruotolo all found that

Here, remand is appropriate because the
ALJ failed to give “good reasons” for
according less than controlling weight to the
opinions of plaintiff’s treating physicians,
and for according greater weight to one of the
medical examiners’ opinions. Further, the
ALJ appears to have placed significant
weight on his own assessment of plaintiff’s
condition
during
the
hour-long
administrative hearing in determining which
opinions to credit. As plaintiff correctly
argues, the ALJ “dismissed or significantly
discounted all of the [treating physicians’
opinions] based primarily upon his own
layperson review,” and reinforced by the
opinion of a medical expert who never
examined plaintiff. (ECF No. 10-1 at 20.)
First, the Court finds that the ALJ failed
to provide sufficient reasons for giving “little
weight” to the opinion of Dr. Alejo and only

9

The ALJ concluded his discussion of Dr. Alejo’s
opinion overall by stating that “[i]t appears that Dr.
Alejo is attempting to assist [plaintiff] in securing

benefits, but his conclusions are not supported by the
evidence in the record.” (Id.)

24

plaintiff was temporarily totally disabled. 10
(AR at 290-91, 367, 370.)

that the ALJ’s determination failed to satisfy
the treating physician rule.11

The ALJ also failed to provide good
reasons for according Dr. Avanesov’s
opinion regarding plaintiff’s functional
limitations only “some weight.” The ALJ
noted that Dr. Avanesov found “dynamic
activities like lifting, carrying, pushing and
pulling should be reduced to a minimum,”
and “[plaintiff’s] general tolerances like
walking, sitting and standing are limited to
about one hour at a time requiring prolonged
rest in between.” (AR at 23.) The ALJ
distinguished that he gave “less weight” to
the limitation to standing for only an hour “as
[plaintiff] walks normally without an
assistive device” (id.), but did not “articulate
good reasons” for according less than
controlling weight to the remainder of Dr.
Avanesov’s opinion.
Perez, 2009 WL
2496585, at *8. In short, given the lack of
good reasons for not crediting the treating
physicians’ opinions, the Court concludes

The Court also finds that the ALJ
improperly accorded controlling weight to
non-examining medical expert Dr. Kwock’s
opinion.12 The Second Circuit has indicated
that, by extension of the treating physician
rule, ALJs should not rely heavily on findings
by consultative examiners or non-examining
doctors. Selian, 708 F.3d at 419 (“ALJs
should not rely heavily on the findings of
consultative physicians after a single
examination.”); Hidalgo v. Bowen, 822 F.2d
294, 297 (2d Cir. 1987) (a “corollary to the
treating physician rule is that the opinion of a
non-examining doctor by itself cannot
constitute the contrary substantial evidence
required to override the treating physician’s
diagnosis.”). In Selian, the ALJ rejected the
treating physician’s diagnosis based in part
on the opinion of another physician who
“performed
only
one
consultative
examination.” 708 F.3d at 419. The Court

10

Although the Court highlights these opinions, the
Court also notes that they discuss “temporary” total
disability and were based on examinations prior to the
alleged onset of disability.

further evaluation. (AR at 370.) He found that
plaintiff was “temporarily totally disabled [until]
repeat evaluation of [the] MRI.” (Id.) Second, the
Court notes that plaintiff received a series of epidural
injections in addition to physical therapy (AR at 274),
and was advised on multiple occasions by different
doctors to consider surgery (AR at 344, 349, 404, 426,
492). Plaintiff testified that he deferred surgery
because he was afraid of the procedure. (AR at 462.)

11

The Court also notes that the ALJ barely discussed
the opinion of treating physician Dr. Ruotolo, and did
not discuss the opinions of treating physicians Drs.
Groth and Burducea, thereby omitting evidence that is
consistent with Drs. Alejo and Avanesov’s opinions.
Dr. Groth, for instance, stated that his impression was
that plaintiff suffered from lumbar radiculopathy. (AR
at 280.) Consistent with a finding of a more severe
condition, from April 2011 to July 2011, Dr. Groth
administered a series of epidural injections. (AR at
274.) Another example is the doctors’ opinions as to
plaintiff’s total temporary disability, discussed supra.

To the extent the conservative nature of plaintiff’s
treatment was a key factor the ALJ’s conclusion, the
Court finds that would be an insufficient basis for
finding plaintiff was not disabled in light of the entire
record. See Shaw, 221 F.3d at 134 (finding that the
district court and ALJ erred in “characteriz[ing] the
fact that [the treating physician] recommended only
conservative [treatment] as substantial evidence that
plaintiff was not physically disabled”); SSRs 16–3p
(listing factors for ALJs to consider when reviewing
an individual’s treatment history, 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 a treatment in light of the side
effects).

12

The ALJ also appeared to credit independent
medical examiner Dr. Weiss’s opinion that plaintiff’s
injuries were “resolving,” and recommending only
physical therapy. (AR at 22.) Similarly, the ALJ
noted that Dr. Ruotolo did not recommend surgery.
(Id.) First, the Court notes that Dr. Ruotolo saw
plaintiff only days after his January 2011 injury and
did not advise against surgery, but, rather,
recommended that plaintiff have an MRI taken for

25

examination are entitled to little if any
weight.”); see also Lester v. Chater, 81 F.3d
821, 831 (9th Cir. 1995) (“The opinion of a
nonexamining physician cannot by itself
constitute substantial evidence that justifies
the rejection of the opinion of . . . a treating
physician.”
(citations
omitted)).
Accordingly, the ALJ’s “heavy reliance on
[Dr. Kwock’s] testimony also contravened
the clear guidance of SSA regulations, as [Dr.
Kwock] was a nonexamining source whose
opinions are to be accorded less weight than
those of examining sources and especially
treating sources.” Brown v. Comm’r of Soc.
Sec., No. 06-CV-3174 (ENV)(MDG), 2011
WL 1004696, at *4 (E.D.N.Y. Mar. 18, 2011)
(citing 20 C.F.R. § 404.1527).

held that, in doing so, the ALJ “fail[ed] to
provide ‘good reasons’ for not crediting [the
treating physician’s] diagnosis,” and that
failure “by itself warrant[ed] remand.” Id. In
Cruz v. Sullivan, the Second Circuit
explained that “a consulting physician’s
opinions or report should be given limited
weight . . . because ‘consultative exams are
often brief, are generally performed without
benefit or review of claimant’s medical
history and, at best, only give a glimpse of the
claimant on a single day.’” 912 F.2d 8, 13
(2d Cir. 1990) (citation omitted). Similarly,
with regard to non-examining physicians’
opinions: “The general rule is that ‘the
written reports of medical advisors who have
not personally examined the claimant deserve
little weight in the overall evaluation of
disability. The advisers’ assessment of what
other doctors find is hardly a basis for
competent evaluation without a personal
examination of the claimant.’” Vargas v.
Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990)
(citation omitted).

Finally, the Court finds that the ALJ
accorded too much weight to his own
assessment of plaintiff’s condition. An ALJ
is not “permitted to substitute his own
expertise or view of the medical proof for the
treating physician’s opinion.” Shaw, 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)). Here, the
ALJ included in his ruling that plaintiff
“appeared to walk normally,” “sat
comfortably throughout the hour-long
hearing without having to shift positions or
get up and walk around,” was not wearing a
back brace or a cervical collar, and did not
need a cane or crutch. (AR at 22.) The ALJ
stated that his observations informed his
determination that “plaintiff’s testimony
concerning his symptoms and limitations is
not supported by the evidence of record and
is deemed not fully credible.”
(Id.)
Additionally, these observations served, at
least in part, as the basis for the ALJ’s
conclusion that Dr. Kwock’s opinion was
entitled to greater weight than the opinions of
Drs. Alejo and Avanesov. This is clear from
the ALJ’s analysis of Dr. Alejo’s opinion: he

As stated supra, Dr. Kwock completed an
interrogatory to assist with this case based on
plaintiff’s medical records alone. (AR at
569.) Despite the fact that Dr. Kwock never
examined plaintiff, the ALJ gave “great
weight” to Dr. Kwock’s determination that
plaintiff could “sit, stand and walk for up to
4 hours continuously and for 7 hours total in
an 8-hour workday,” was able to lift and carry
up to 20 pounds, and could occasionally
kneel and crouch. (AR at 23.) This opinion
is at odds with those of the treating
physicians, discussed supra, who found
plaintiff to be much more limited. Given that
Dr. Kwock did not examine plaintiff, and the
stark contrast between his opinion and those
of the treating physicians, the Court finds the
ALJ incorrectly assigned controlling weight
to this opinion. Filocomo v. Chater, 944 F.
Supp. 165, 169 n.4 (E.D.N.Y. 1996) (“[T]he
conclusions of a physician who merely
reviews a medical file and performs no

26

Dated: March 30, 2018
Central Islip, New York

· stated that Dr. Alejo found plaintiff "could
not sit, stand or walk for even an hour total in
an 8-hour day," and reasoned that "[t]his
would require the claimant to lie down for
most of the day, which he clearly is not
required to do." (AR at 23.) The ALJ
appears to have based his finding as to
plaintiffs ability to sit for multiple
consecutive hours at work daily on the hourlong hearing held to determine if plaintiff
would receive benefits. In short, the Court
concludes that the ALJ placed too much
weight on his own assessment of plaintiffs
condition based· upon his observation at the .
hearing in according less weight to the expert
opinions of the treating physicians.

***
Plaintiff is represented John W. DeHaan of
the DeHaan Law Firm P.C., 300 Rabro Drive
East, Suite 101, Hauppauge, New York
11788. The Commissioner is represented by
Assistant United States Attorney Megan
Jeanette Freismuth of the U.S. Attorney's
Office, 610 Federal Plaza, Central Islip, New
York 11722.

In sum, the ALJ failed to provide "good
reasons" for declining to accord controlling
weight to the treating physicians' opinions.
Snell, 177 F.3d at 133. That failure "by itself
warrants remand." 13 Selian, 708 F.3d at 419.
V. CONCLUSION
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 is also denied.
The case is remanded to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.

l.

credibility after properly applying the treating
physician rule. See McAllister v. Colvin, 205 F. Supp.
3d 314, 330 n.3 (E.D.N.Y. 2016); Morris v. Colvin,
No. 15-CV-5600 (JFB), 2016 WL 7235710, at *10
(E.D.N.Y. Dec. 14, 2016).

13 In light of this Court's ruling that the ALJ
committed legal error by failing to give "good
reasons" for according less than controlling weight to
the treating physicians' opinions, the Court need not
address plaintiff's other arguments. The Court,
therefore, declines to do so, but directs the ALJ on
remand to reconsider plaintiffs testimony and

27