Caldwell v. Berryhill

Filing 20

MEMORANDUM AND ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings; granting in part and denying in part 15 Motion for Judgment on the Pleadings. For the foregoing reasons, Plaintiff's motion (Docket Entry 11) is GRANTED IN PART and DENIED IN PART and the Commissioner's motion (Docket Entry 15) is GRANTED IN PART and DENIED IN PART. The ALJ's mental RFC finding is AFFIRMED, but his physical RFC finding is VACATED. This matter is REMANDED for proceedings consistent with this Memorandum and Order, including further development of the record regarding the effect of Plaintiff's physical impairments on his RFC. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/7/2019. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
KENNETH JOHN CALDWELL,
Plaintiff,
MEMORANDUM & ORDER
17-CV-6486 (JS)

-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Francesca Zeltmann, Esq.
Persaud & Zeltmann
675 Broadway
P.O. Box 283
Massepequa, NY 11758
For Defendant:

Candace S. Appleton, Esq.
United States Attorney’s Office
Eastern District Of New York
271 Cadman Plaza East
Brooklyn, NY 11201

SEYBERT, District Judge:
Plaintiff Kenneth John Caldwell (“Plaintiff”) brings
this action pursuant to Section 205(g) of the Social Security Act
(the “Act”), 42 U.S.C. § 405(g), challenging the Commissioner of
Social Security’s (the “Commissioner”) denial of his application
for

Social

Security

Docket Entry 1, ¶ 3.)

Disability

Insurance

Benefits.

(Compl.,

Presently pending before the Court are the

parties’ cross-motions for judgment on the pleadings. (Pl.’s Mot.,
Docket

Entry

11;

Comm’r’s

Mot.,

Docket

Entry

15.)

For

the

following reasons, Plaintiff’s motion is GRANTED IN PART and DENIED

IN PART and the Commissioner’s motion is GRANTED IN PART and DENIED
IN PART.
BACKGROUND1
On February 2, 2015, Plaintiff completed an application
for disability insurance benefits alleging that since December 31,
2013,

post-traumatic

stress

disorder

(“PTSD”),

depression,

anxiety, sleep deprivation, phobia, memory loss, arthritis, back
and

knee

pain,

disabled.
denied,

and

an

inability

to

(R. 65, 160-61, 211.)
(R. 65-75),

he

focus

have

rendered

him

After Plaintiff’s claim was

requested

a

hearing

Administrative Law Judge (“ALJ”), (R. 84-85).

before

an

On February 23,

2017, Plaintiff appeared with his attorney for a hearing.

(R. 40-

64.)
In a decision dated July 5, 2017, the ALJ found that
Plaintiff was not disabled.
the

Social

Security

(R. 24-34.)

Administration’s

On September 7, 2017,

Appeals

Council

denied

Plaintiff’s request for review and the ALJ’s decision became the
final decision of the Commissioner.
Plaintiff

filed

this

(R. 1-5.)

action

on

November 8,

2017,

(Compl.), and moved for judgment on the pleadings on April 5, 2018,

The background is derived from the administrative record filed
by the Commissioner on February 9, 2018. (R., Docket Entry 10.)
“R.” denotes the administrative record. For purposes of this
Memorandum and Order, familiarity with the administrative record
is presumed. The Court’s discussion of the evidence is limited
to the challenges and responses raised in the parties’ briefs.
1

2

(Pl.’s Br., Docket Entry 11-1).

The Commissioner cross-moved for

judgment on the pleadings on August 8, 2018, (Comm’r’s Br., Docket
Entry 16), and Plaintiff opposed the Commissioner’s motion on
August 26, 2018, (Pl.’s Reply, Docket Entry 18).
DISCUSSION
I.

Standard of Review
In reviewing the ruling of an ALJ, the Court does not

determine de novo whether the plaintiff is entitled to disability
benefits.

Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the
ALJ.

See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

If

the Court finds that substantial evidence exists to support the
Commissioner’s decision, the decision will be upheld, even if
evidence to the contrary exists.

See Johnson v. Barnhart, 269 F.

Supp. 2d 82, 84 (E.D.N.Y. 2003).
II.

The ALJ’s Decision
Initially,

insured-status
2018.

the

ALJ

requirements

(R. 26.)

found

that

his

claim

of

Plaintiff
through

meets

the

December 31,

Next, the ALJ applied the familiar five-step

disability analysis and concluded that Plaintiff was not disabled
from December 31, 2013, the alleged disability-onset date, through
July 5,

2017,

the

20 C.F.R. § 404.1520.

date

of

his

decision.

(R. 26-34);

see

At steps one through three, the ALJ found

that (1) Plaintiff had not engaged in substantial gainful activity
3

since the alleged onset date, (R. 26); (2) Plaintiff had severe
impairments consisting of depression, anxiety, and PTSD, as well
as pain in his lumbar spine, right shoulder, and bilateral knees,2
(R. 26-27); and (3) these impairments did not meet or medically
equal the severity of any of the impairments listed in Appendix 1
of the Social Security regulations, (R. 27-29).

The ALJ then

determined that Plaintiff had the residual functional capacity
(“RFC”)
to perform medium work as defined in
20 CFR 404.1567(c) except [he] is limited to
unskilled tasks, defined by the Dictionary of
Occupational Titles as SVP 1 or 2, in a low
stress job, defined as having only occasional
decision making and only occasional changes in
the work setting, with only occasional
interaction with the public and coworkers.
(R. 30-32.)

Proceeding to steps four and five, the ALJ found that

while (4) Plaintiff was unable to perform his past relevant work
as a bus company owner and manager, (R. 32), (5) considering his
RFC, age, education, and work experience, Plaintiff could make a
successful adjustment to work existing in significant numbers in
the national economy, (R. 32-33).
that Plaintiff was not disabled.

As a result, the ALJ determined
(R. 34.)

The ALJ determined that Plaintiff’s right-sided inguinal hernia
repair surgery was not a severe condition and that his history
of obesity was not severe. (R. 27.)
2

4

III. Analysis
Plaintiff advances two primary arguments:

(1) The ALJ

improperly assigned “less weight” to the opinion of treating
physician

Luigi

Capobianco,

M.D.,

regarding

the

impact

of

Plaintiff’s mental impairments on his ability to work, (Pl.’s Br.
at 12-15), and (2) the ALJ erred by giving “little weight” to the
opinion of treating physician Leo Varriale, M.D., on the effect of
Plaintiff’s physical impairments on his work capacity, resulting
in a physical RFC unsupported by medical evidence, (Pl.’s Br. at
15-17).

The Commissioner contends that the ALJ gave proper weight

to the opinions and that substantial evidence supports the ALJ’s
RFC findings because (1) Dr. Capobianco’s opinion is based on
Plaintiff’s

subjective

complaints

and

inconsistent

with

substantial evidence in the record, (Comm’r’s Br. at 21-27), and
(2) Dr. Varriale’s opinion does not pertain to the relevant period
and is inconsistent with medical evidence, (Comm’r’s Br. at 2730).
Under the “treating physician rule,” “[t]he opinion of
a treating physician is afforded ‘controlling weight so long as it
is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.’”

Crowell v. Comm’r of

Soc. Sec. Admin., 705 F. App’x 34, 35 (2d Cir. 2017) (quoting

5

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)).

The Social

Security regulations provide:
Generally, we give more weight to opinions
from your treating sources. . . . If we find
that a treating source’s opinion on the
issue(s) of the nature and severity of your
impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the
other substantial evidence in your case
record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2).3

Nevertheless,

the

opinions

of

a

treating physician “‘need not be given controlling weight where
they

are

record.’”

contradicted

by

other

substantial

evidence

in

the

Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 7 (2d

Cir. 2017) (quoting Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
2002)).
The Court will address Plaintiff’s arguments concerning
the weight given to the opinions of his treating physicians within
the context of the ALJ’s mental and physical RFC determinations.
A.

Plaintiff’s Mental RFC

“While the Act was amended effective March 27, 2017 [to
eliminate the treating physician rule], the Court reviews the
ALJ’s decision under the earlier regulations because the
Plaintiff’s application was filed before the new regulations
went into effect.” Williams v. Colvin, No. 16-CV-2293, 2017 WL
3701480, at *1 (E.D.N.Y. Aug. 25, 2017); see also
20 C.F.R. § 404.1527 (“For claims filed (see § 404.614) before
March 27, 2017, the rules in this section apply. For claims
filed on or after March 27, 2017, the rules in § 404.1520c
apply.”).
3

6

As discussed above, the ALJ found that Plaintiff had
severe

mental

(R. 26.)

impairments

of

depression,

anxiety,

and

PTSD.

His RFC finding limited Plaintiff to unskilled tasks in

a low-stress job, “defined as having only occasional decision
making and only occasional changes in the work setting, with only
occasional interaction with the public and coworkers.”

(R. 30.)

In determining Plaintiff’s mental RFC, the ALJ weighed the opinions
of

Dr. Capobianco,

Dr. Paul

Herman,

Dr. Kathleen

Acer,

Dr. Jennifer Blitz, and Dr. W. Skranovski.4
Plaintiff argues that the ALJ improperly gave “less
weight” to Dr. Capobianco’s opinion on the effect of Plaintiff’s
psychological issues on his ability to work.

(Pl.’s Br. 12-15.)

Dr. Capobianco is a family medicine physician who has treated
Plaintiff since 2005.

(R. 503, 508.)

He provided his opinion in

a “Mental Impairment Questionnaire” and a disability claim form,
both dated February 5, 2017.

(R. 503-08.)

He diagnosed Plaintiff

with bipolar disorder, major depression, and PTSD, and he opined

Plaintiff contends that Dr. Skranovski is not an acceptable
medical source who can render a medical opinion because he
signed his name simply as “W. Skranovski,” without indicating
that he is a medical professional. (Pl.’s Reply at 1.) This
argument is unconvincing, as this Court has encountered records
from Dr. Skranovski in his capacity as an agency psychiatric
consultant in numerous other cases. E.g., Williams, 2017 WL
3701480, at *4 (describing “Dr. W. Skranovski” as a “State
agency psychiatric consultant”). However, the Court notes that
the ALJ misspelled Dr. Skranovski’s name as “Skranovsky.” (R.
32, 73.)
4

7

that

Plaintiff

environments.

was

restricted

(R. 508.)

from

being

in

stressful

He opined further that Plaintiff had

“moderate” limitations5 in his ability to, among other things:
understand and remember detailed instructions; carry out simple or
detailed instructions; maintain attention and concentration for
extended periods; make simple work-related decisions; complete a
workday without interruptions; interact appropriately with the
public;

accept

instructions

and

respond

appropriately

to

supervisors; get along with coworkers or peers without distracting
them;

respond

unfamiliar

appropriately

places;

and

make

to

workplace

plans

changes;

independently.

travel

to

(R. 506.)

Additionally, he assessed “moderate-to-marked” limitations6

in

Plaintiff’s capacity to perform activities within a schedule,
consistently be punctual, and perform at a consistent pace without
rest periods of unreasonable length or frequency.

(R. 506.)

Dr. Capobianco opined that Plaintiff would miss work more than

As defined by the Mental Impairment Questionnaire, a “moderate”
limitation in a mental activity means that the claimant’s
symptoms are expected to “occasionally”--up to one-third of an
eight-hour workday--interfere with his ability to perform that
activity in a competitive environment on a sustained and ongoing
basis--eight hours per day, five days per week. (R. 506.)
5

The Mental Impairment Questionnaire defines a “moderate-tomarked” limitation as one that is expected to “frequently”-between one-third and two-thirds of an eight-hour workday-interfere with ability. (R. 506.)
6

8

three times per month, and he concluded that Plaintiff was unable
to work.

(R. 507-08.)
While

the

ALJ

recognized

that

Dr. Capobianco

was

Plaintiff’s treating physician, he assigned the opinion “less
weight”

because

(1) Dr. Capobianco

is

not

a

mental

health

professional, but a family practitioner who does not provide
psychotherapy and is not trained in mental health; (2) much of his
opinion appears to be based on Plaintiff’s subjective statements;
and (3) the opinion is not supported by objective medical findings
or Plaintiff’s treatment history.

(R. 27, 31.)

Plaintiff does

not dispute the first point but argues that (1) Dr. Capobianco’s
opinion

is

supported

by

clinical

findings

and

not

simply

Plaintiff’s subjective statements; (2) Dr. Capobianco’s clinical
findings are consistent with those of other treating and examining
mental health professionals; and (3) the opinion is supported by
medical evidence in the record.

(Pl.’s Br. at 13-14.)

The Court

is unconvinced by Plaintiff’s arguments.
1.

Plaintiff’s Subjective Statements

Initially,

the

Court

agrees

with

the

ALJ

that

the

“clinical findings” on which Dr. Capobianco based his opinion
appear to be his notes of Plaintiff’s subjective statements.
Dr. Capobianco’s
Plaintiff’s
therapy.

records

mental

health

do

not

status

indicate
or

(See generally R. 427-42.)
9

that

provided

he

assessed

mental

health

Rather, his notes simply

list

several

diagnoses,

symptoms,

and

indicating whether he evaluated Plaintiff.

medications

without

For example, in notes

dated July 2, 2015, Dr. Capobianco lists, without context, “unable
to complete tasks,
memory

memory, partial withdrawal from society,

, + Depression, memory, LBP, Depression, [and] Anxiety,”

along with the names of several medications. (R. 431.) Similarly,
on January 28, 2015, without indicating that he performed a mental
evaluation, Dr. Capobianco noted “unable to do gainful employment”
as one of Plaintiff’s “[p]roblems.”

(R. 435.)

Thus, the ALJ was

not required to give Dr. Capobianco’s opinion controlling weight.
See Baladi v. Barnhart, 33 F. App’x 562, 564 (2d Cir. 2002)
(quoting
treating

20 C.F.R.§§ 404.1527(d)(2),
physician’s

opinions

were

416.927(d)(2))
based

upon

(“The

plaintiff’s

subjective complaints of pain and unremarkable objective tests,
and therefore the ALJ was not required to give that opinion
controlling weight, as it was not ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques.’”).
2.

Inconsistencies with Opinions of Mental Health
Professionals

Additionally, Dr. Capobianco’s opinion is inconsistent
with

the

opinions

of

mental

health

specialists.

20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the
medical opinion of a specialist about medical issues related to

10

his or her area of specialty than to the medical opinion of a
source who is not a specialist.”)
First,

it

runs

counter

to

psychiatric consultant Dr. Skranovski.
2017 WL 3701480, at *4.

the

opinion

of

agency

(R. 72-74); see Williams,

On August 28, 2015, Dr. Skranovski

reviewed the record and opined that Plaintiff had no functional
limitations; was able to memorize and carry out tasks, interact
socially in a work setting, and adapt to changes; and was “not
disabled”

(which,

determination

as

left

Plaintiff
to

the

20 C.F.R. § 404.1527(d)(1).
limitations

assessed

by

correctly

points

Commissioner),

out,

is

(R. 73-74);

a
see

Further, he noted that the functional

Plaintiff’s

provider--Dr. Capobianco--

were not supported by an examination or any objective data.
(R. 73.)

The ALJ gave Dr. Skranovski’s opinion “some weight, as

it is consistent with the record as a whole.”
Dr. Skranovski’s
consultative

examination

report
report

discusses
of

(R. 32.)
the

psychologist

July 14,
Paul

2015

Herman,

Ph.D., whose assessment Dr. Skranovski evaluated as part of his
review.

(R. 32, 73, 370-75.)

extensively
psychiatric

recounted
issues.

In his report, Dr. Herman first

Plaintiff’s
(R. 371-72.)

subjective
Then,

upon

complaints
mental

of

status

examination, he found Plaintiff to be “cooperative with adequate
social skills.”

(R. 372.)

Further, he found that Plaintiff’s

appearance, speech, and thought processes were normal; his affect
11

was “[d]ysthymic and tense”; his mood was “[n]eutral to depressed”;
his attention and concentration were “[s]omewhat below average”;
his cognitive functioning was average; his recent memory skills
were “mixed” and his remote memory skills were below average; and
his insight and judgment were currently fair, with a history of
some variability.

(R. 372-73.)

Dr. Herman opined that:

From
a
psychological/psychiatric
perspective, there appears to be evidence of
moderate to marked limitation intermittently
and mild to moderate limitation chronically
with respect to [Plaintiff’s] ability to
follow and understand simple directions and
instructions, perform simple tasks, maintain
attention and concentration, maintain a
regular schedule, learn new tasks, perform
complex tasks, make appropriate decisions,
relate
adequately
with
others,
and
appropriately deal with stress at the level
and
consistency
required
to
maintain
employment.
The results of the evaluation appear to
be consistent with psychiatric problems, and
these may moderately interfere with [his]
ability to function on a daily basis, and
intermittently at a marked level.
(R. 373-74.)
The ALJ gave Dr. Herman’s opinion “less weight, as it is
based upon a one-time examination that appears to have relied
primarily on [Plaintiff’s] self report of his symptoms and is not
supported

by

Similarly,
Dr. Herman’s

the

objective

Dr. Skranovski
mental

status

evidence
drew

of

different

examination,

12

record.”

(R. 32.)

conclusions
providing

that

from
it

“show[ed] mildly impaired concentration and intact social/basic
personal [activities of daily living]-related skills.”
see R. 372-73.)

(R. 73;

Additionally, he highlighted that Dr. Herman’s

report showed Plaintiff’s ability to travel alone to the exam,
“which requires intact memory/intact concentration.”
The

Court

agrees

that

the

limitations

(R. 73.)
outlined

in

Dr. Herman’s opinion appear to reflect Plaintiff’s complaints,
rather than objective medical data.
mental

status

examination

For example, Dr. Herman’s

assessed

Plaintiff’s

cognitive

functioning to be “average,” his attention and concentration to be
only “[s]omewhat below average,” and his insight and judgment to
be currently “fair,” yet he opined that there was evidence that
Plaintiff was “moderate[ly] to marked[ly] limit[ed] intermittently
and mild[ly] to moderate[ly] limit[ed] chronically with respect to
his

ability

instructions,

to

follow

perform

and

understand

simple

tasks,

simple

directions

and

maintain

attention

and

concentration, . . . [and] make appropriate decisions.”
74.)

(R. 373-

On the other hand, the opinion appears to accord with

Plaintiff’s subjective statements to Dr. Herman, like Plaintiff’s
“report that he is worn out by [his psychological issues], and he
tried to take a job in the bus industry . . . but was unable to
concentrate and focus.”
Second,
opinion

of

(R. 372.)

Dr. Capobianco’s

clinical

psychologist
13

opinion

conflicts

Kathleen

Acer,

with
Ph.D.,

the
a

consultative

examiner.

(R. 478-88.)

On

December 20,

2016,

Dr. Acer diagnosed Plaintiff with major depressive disorder and
generalized anxiety disorder.

(R. 480.)

Unlike Dr. Capobianco

and Dr. Herman, (R. 373-74, 506), Dr. Acer opined that “there are
no

limitations

in

his

ability

to . . . follow

and

understand

simple instructions and directions, appropriately perform simple
rote tasks, and maintain attention and concentration (at least on
a short-term basis),” (R. 480).

She noted further that “[h]e may

have some moderate limitations learning and performing complex
tasks independently, dealing with stress, and adequately relating
with others.”

(R. 480.)

Additionally, Dr. Acer completed a functional capacity
assessment and found “mild” restrictions--“slight limitation[s]”
that do not prevent Plaintiff from “generally function[ing] well”-in his ability to understand, remember, and carry out simple
instructions and make judgments on simple work-related decisions.
(R. 486.)

She assessed that he had “moderate” restrictions--“more

than [ ] slight limitation[s]” that do not prevent him from
“function[ing] satisfactorily”--in his capacity to understand,
remember, and carry out complex instructions; make judgments on
complex work-related decisions; interact appropriately with the
public, supervisors, and coworkers; and respond appropriately to
usual work situations and to changes in a routine work setting.
(R. 486-87.) The ALJ gave Dr. Acer’s opinion “some weight” because
14

while it “appear[ed] to be consistent with the overall evidence in
the record,” it was based only upon a one-time examination, and
the results of intelligence testing that Dr. Acer performed were
contradicted by other evidence in the record.
Third,

while

the

Court

finds

(R. 32.)

that

the

opinion

of

impartial medical expert and clinical psychologist Jennifer Blitz,
Psy.D., is not clearly inconsistent with Dr. Capobianco’s opinion,
any conclusion to the contrary by the ALJ is harmless.
522-29.)

(R. 32,

On March 7, 2017, at the ALJ’s request, Dr. Blitz

completed a medical interrogatory regarding Plaintiff’s mental
impairments.

(R. 32, 525-29.)

After reviewing the record, she

stated that she could not form an opinion on the nature and
severity of Plaintiff’s impairments or the extent of Plaintiff’s
functional limitations resulting from his impairments.

(R. 525.)

Specifically, Dr. Blitz stated that she reviewed Dr. Herman’s
consultative examination report indicating that Plaintiff was
receiving ongoing psychiatric treatment, and that she needed the
records

of

(“[Plaintiff]

that

treatment.7

reports

that

(R. 370-75,
he

has

been

525;
in

see

R. 371

outpatient

treatment . . . [and h]e is currently seeing a psychiatrist and

Plaintiff was not receiving psychiatric treatment at that time,
but was only seeing his primary care physician, Dr. Capobianco.
(R. 153 (disability insurance application dated April 21, 2015,
on which Plaintiff indicated that he had not seen any physician
or medical practitioner other than Dr. Capobianco in the
previous twelve months).) Thus, there are no such records.
7

15

therapist . . . .).)

Dr. Blitz concluded that “[r]ecords from all

providers since [the alleged onset date] are needed to form an
opinion,

as

[the

consultative

insufficient to do so.”

(R. 525.)

examination

reports]

are

The ALJ gave Dr. Blitz’s

opinion “great weight” because she reviewed the entire record and
is an expert in the field.

(R. 32.)

Dr. Blitz states that she could not form an opinion on
Plaintiff’s alleged impairments because she needed more records,
but the ALJ arguably interpreted her statement as contradicting
Dr. Capobianco’s finding of functional limitations.

(R. 32, 525.)

However, as discussed herein, the ALJ’s mental RFC finding and his
decision to give “less weight” to Dr. Capobianco’s opinion are
supported by other substantial evidence in the record, so any error
by

the

ALJ

harmless.

in

giving

Dr. Blitz’s

opinion

“great

weight”

is

See Monroe, 676 F. App’x at 9.
3.

Dr. Capobianco’s “Clinical Findings”

Plaintiff

argues

that

Dr. Capobianco’s

“clinical

findings” (which, as discussed above, appear to be a record of
Plaintiff’s subjective statements) are consistent with those of
other treating and examining mental health professionals.
Br. at 13-14.)

(Pl.’s

This argument fails for two reasons.

First, Dr. Capobianco’s “findings” are inconsistent with
some objective findings of mental health professionals in the
record.

For instance, Plaintiff began psychiatric treatment with
16

Dr. Ketty

Thertus,

M.D.,

in

September

2012,

after

attempting

suicide following the death of a teenaged passenger in a bus owned
by his company.

(R. 342.)

On mental status examinations in

September, October, and November 2012 and January, February, and
May 2013, Dr. Thertus found that Plaintiff was cooperative, with
good eye contact; while he was “at baseline fidgety,” he did not
make abnormal movements; his speech was fluent, productive, rapid,
and regular in volume and tone; his mood was “good”; his affect
was reactive and stable; he was future-oriented; and his insight
and judgment were fair.

(R. 295, 298, 301-02, 304-05, 318, 345.)

Dr. Thertus diagnosed him with bipolar disorder and opioid and
alcohol abuse.

(R. 296, 299, 302, 305, 318, 346.)

In contrast to Dr. Capobianco, as well as psychologist
Dr. Robin Chapman, Ph.D., who treated Plaintiff from September
2012 to August 2014, Dr. Thertus did not diagnose Plaintiff with
PTSD.

(R. 348.)

Moreover, unlike Dr. Capobianco, Dr. Thertus

evaluated Plaintiff and found his “[m]emory and attention [to be]
intact.”

(Compare R. 305 (Dr. Thertus’ examination notes) with

R. 431 (Dr. Capobianco’s notes regarding Plaintiff’s decreased
memory).)

Additionally, contrary to Dr. Chapman’s observations,

Dr. Thertus

did

not

find

that

concentration, eye contact, or focus.
with R. 348.)

Plaintiff

exhibited

poor

(Compare, e.g., R. 304-05

Similarly, Plaintiff’s complaints to Dr. Thertus

that he had been having trouble concentrating at work for the two
17

years preceding his November 2012 session (and thus, before the
bus

accident

contradict

at

the

heart

Dr. Chapman’s

of

view

Plaintiff’s
that

PTSD),

Plaintiff’s

(R. 295),

PTSD

caused

“changes in concentration and lack of persistence necessary to
complete career related tasks,” (R. 348).
Second,

Dr. Capobianco’s

“findings”

are

somewhat

consistent with those of other mental health professionals--for
example, Dr. Acer’s finding that he had anxious mood and affect
and her diagnosis that he had major depressive disorder and
generalized anxiety disorder.

(R. 483-84.)

However, that fact

does not undercut the ALJ’s finding that Dr. Capobianco’s opinion
on the effect of those impairments was grounded in Plaintiff’s
subjective statements, rather than objective evidence.

(R. 31.)

For instance, Dr. Capobianco’s notes provide that Plaintiff’s
“[p]roblems”

included

anxiety,

depression,

inability “to do gainful employment.”

and,

(R. 435.)

notably,

the

However, there

is no reference to testing or evaluation to support his ultimate
conclusion that Plaintiff’s impairments foreclosed the possibility
of employment.

(R. 508.)

In contrast, as described above, mental

health professionals evaluated Plaintiff and diagnosed similar
impairments

like

practitioner)

depression,

Dr. Capobianco’s

but

they

opinion

rendered Plaintiff incapable of work.

18

did
that

not

share

those

(family

impairments

In light of the above, the Court concludes that the ALJ
did not err in assigning “less weight” to Dr. Capobianco’s opinion
on the effect of Plaintiff’s mental impairments on his ability to
work.

Additionally, the ALJ’s mental RFC finding, which includes

limitations

directly

related

to

Plaintiff’s

assessed

mental

impairments, is supported by substantial evidence in the record
and is affirmed.

See Matta v. Astrue, 508 F. App’x 53, 56 (2d

Cir. 2013) (citation omitted) (“Although the ALJ’s conclusion may
not perfectly correspond with any of the opinions of medical
sources cited in his decision, he was entitled to weigh all of the
evidence available to make an RFC finding that was consistent with
the record as a whole.”).
B.

Plaintiff’s Physical RFC

From

a

physical

perspective,

the

ALJ

found

that

Plaintiff was capable of “medium work,” which “involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of
objects

weighing

§ 404.1567(c).

up

The

to

ALJ

25

pounds.”

reviewed

the

(R. 30);

opinions

and

20 C.F.R.
notes

of

Dr. Varriale, Dr. Asad, and Dr. Capobianco in deciding Plaintiff’s
physical RFC.

(R. 31.)

Plaintiff argues that the ALJ erred by giving “little
weight”

to

the

opinion

of

his

treating

orthopedist,

Dr. Leo

Varriale, M.D., and by giving “less weight” to the opinion of
consultative examiner Dr. Syeda Asad, M.D., regarding the effect
19

of Plaintiff’s physical impairments on his ability to work. (Pl.’s
Br. at 15-17; see R. 27, 31, 376-79, 491-94.)
1.

Dr. Varriale

Dr. Varriale, an orthopedist who treated Plaintiff from
2005 to 2011, (R. 472-75), opined on August 17, 2015 that:
[Plaintiff] has been disabled. He is unable
to run or lift more than ten pounds and cannot
sit or stand for long periods of time.
He
cannot do any significant stair climbing.
Future surgery to the knees, back and right
shoulder is a possibility . . . .
He takes
narcotic mediations to control pain which has
been on a regular basis for the last several
years. I do not believe he can work because
he
needs
to
take
these
medications
continuously.
(R. 475.)

The ALJ gave this opinion “little weight, as it is not

supported by the evidence of record and is based upon evidence
from before the relevant time period.”
Plaintiff

argues

that

the

(R. 31.)
ALJ

erred

because

while

Dr. Varriale’s findings related to automobile accidents Plaintiff
suffered in the past, “the physical ramifications and limitations
[of those accidents], in no doubt, pertain to the period at issue.”
(Pl.’s Br. at 15.)

Additionally, he argues that Dr. Varriale’s

opinion is supported by Dr. Capobianco’s “[c]linical findings of
a

severe

low

back

impairment.”

(Pl.’s

Br.

at 15.)

The

Commissioner maintains that the ALJ correctly found Dr. Varriale’s
opinion to be outdated and inconsistent with the evidence of
record.

(Comm’r’s Br. at 27-28.)
20

Dr. Varriale’s 2015 opinion is based on treatment ending
in 2011 (two years before the alleged onset date) and is not
supported by evidence in the record.
activities

belie

Dr. Varriale’s

First, Plaintiff’s reported

grim

opinion.

For

instance,

Plaintiff went on a scuba-diving trip after he stopped seeing
Dr. Varriale (but before the alleged onset date).

(R. 295, 304

(noting in November 2012 that “[P]laintiff plans to take vacation
in January [2013] to go scuba diving” and that his “[r]elationship
with [his] girlfriend is going well,” and noting in May 2013 that
Plaintiff “was able to enjoy recent trips with [his girlfriend]”).)
Plaintiff also testified that he drove and repaired vehicles for
his company until 2012 and that he spent more than three-quarters
of the workday at his company “[s]tanding and moving and following
up.”

(R. 45, 63-64.)

In August 2014, Plaintiff reported that he

went to the gym and rode a bike for an hour twice per week.
(R. 354.)

In December 2016, he reported that he could dress,

bathe, and groom himself, as well as shop, drive, and clean.
(R. 479, 492.)
Second, Dr. Varriale’s opinion conflicts with medical
evidence

in

the

record.

Since

stopping

treatment

with

Dr. Varriale, Plaintiff has not seen an orthopedist and has not
had surgery or injections.

(R. 491.)

Rather, he continued to see

his family general practitioner, mostly for his complaints of back
pain. (See generally R. 427-42.) Additionally, on August 1, 2014,
21

Nurse Practitioner Maxine Hines examined Plaintiff before his
hernia-repair surgery.
no

joint

swelling,

(R. 353-61.)

pain,

or

She noted that Plaintiff had

deformity

and

no

limitation

of

movement, (R. 356, 358), though he suffered from arthritis and
complained

of

lower

back

pain,

(R. 356,

360).

Finally,

Dr. Varriale’s opinion conflicts with the physical examination
findings of Dr. Asad.
2.

Dr. Asad

Dr. Asad,
nuclear

medicine,

(R. 491-94.)

a

consultative

examined

examiner

Plaintiff

on

specializing

December

20,

in

2016.

She noted Plaintiff’s complaints of lower back pain

and bilateral knee pain but observed him to be in no acute distress
and with a normal gait and station.

(R. 491, 493.)

Dr. Asad

observed that he had difficulty walking on his toes, but not his
heels, and that his “squat was only 1/3 of full.”

(R. 493.)

He

needed no assistive device, rose from his chair without difficulty,
and needed no help changing for his exam, though he needed help
getting on and off the exam table.

(R. 493.)

Upon examination of

his cervical spine, Dr. Asad assessed full flexion, extension,
lateral

flexion,

and

rotary

movements

bilaterally,

with

no

cervical or paracervical pain or spasm and no trigger points.
(R. 493.)

Dr. Asad’s examination showed that the flexion and

extension of Plaintiff’s lumbar spine was forty degrees, his
lateral flexion was fifteen degrees bilaterally, and his rotation
22

was fifteen degrees bilaterally.

(R. 493.)

There was no spinal,

paraspinal, sacroiliac (SI) joint, or sciatic notch tenderness,
and no spasm.

(R. 493.)

Plaintiff’s straight-leg raise (SLR) was

positive at sixty degrees bilaterally, but his sitting straightleg raise was negative bilaterally, and he had no trigger points.
(R. 493.)

Plaintiff had a full range of motion in his hips and

ankles, but his knees had a flexion and extension of fifty degrees
bilaterally.

(R. 493.)

In his lower extremities, he had full

strength in his proximal and distal muscles, no muscle atrophy,
and no joint effusion, inflammation, or instability.

(R. 493.)

Plaintiff had full strength and range of motion in his upper
extremities, as well, with no joint inflammation, effusion, or
instability.

(R. 493.)

As relevant here, Dr. Asad diagnosed

Plaintiff with lower back pain and bilateral knee pain.

(R. 494.)

She concluded that he had “mild to moderate limitations for
squatting, kneeling, bending, walking, and standing for a long
period of time.”

(R. 494.)

Dr. Asad
regarding
activities.

also

Plaintiff’s

completed
ability

(R. 496-502.)

She

a
to

medical

source

engage

in

opined

that

statement

work-related

Plaintiff

could

occasionally--up to one-third of the time--lift or carry up to ten
pounds and never lift or carry eleven pounds or more.

(R. 496.)

According to Dr. Asad, during the course of an eight-hour workday,
Plaintiff could sit for up to seven hours, stand for up to thirty
23

minutes, and walk for up to thirty minutes.

(R. 497.)

She opined

that because of the limited range of motion in his knees, Plaintiff
could never climb stairs, ramps, ladders, or scaffolds and never
balance, stoop, kneel, crouch, or crawl.

(R. 499.)

She found

that

traveling

without

Plaintiff

companion

for

was

capable

assistance,

of

shopping,

ambulating

without

a

substantial

assistance, using standard public transportation, climbing a few
steps using a single hand rail, preparing meals and feeding
himself, caring for his personal hygiene, and sorting, handling,
and using paper.

(R. 501.)

However, she opined that he was not

able to walk a block at a reasonable pace on rough or uneven
surfaces.

(R. 501.)
The ALJ discussed Dr. Asad’s examination notes, her

conclusion that Plaintiff suffered mild to moderate limitations in
various activities, and her medical source statement.

(R. 31.)

He concluded that Dr. Asad’s opinion was entitled to “less weight”
because the medical source statement “listed limitations far in
excess of what would reasonably be expected from the physical
findings.”

(R. 31.)
Plaintiff highlights Dr. Asad’s medical source statement

and argues that the ALJ ignored it.

(Pl.’s Br. at 16.)

The

Commissioner contends that Dr. Asad’s medical source statement
conflicted

with

evidence

in

the

record

contrast” to her examination findings.
24

and

stood

“in

stark

(Comm’r’s Br. at 28-29.)

The Court concludes that the ALJ properly gave “less
weight”

to

Dr. Asad’s

opinion.

First,

like

Dr. Varriale’s

opinion, Dr. Asad’s opinion conflicts with the evidence in the
record discussed above.

Second, the medical source statement

conflicts with Dr. Asad’s examination findings, which generally
noted full strength and full range of motion in Plaintiff’s joints,
but with a limited squat and limited range of motion in his spine
and knees. (R. 493-94.) For example, Dr. Asad found full strength
in

Plaintiff’s

lower

extremities,

observed

normal

gait

and

station, and noted that Plaintiff was not in acute distress.
(R. 493.)

She then assessed only “mild to moderate limitations

for . . . walking[ ] and standing for a long period of time.”
(R. 494.)

In contrast, in her medical source statement, Dr. Asad

opined that Plaintiff could stand and walk only thirty minutes
each in an eight-hour work day.
her

examination,

the

(R. 497.)

opinion

appears

subjective statements to Dr. Asad.

Rather than reflecting
to

track

Plaintiff’s

(E.g., R. 491 (“According to

[Plaintiff], he has difficulty in walking due to the knee pain.”).)
3.
However,

Substantial Evidence
the

Court

remands

this

matter

for

further

development of the record because the physical RFC is not supported
by substantial evidence.

While an ALJ may rely on treatment notes

and a claimant’s activities of daily living in determining an RFC,
Monroe, 676 F. App’x at 8-9, here, the Court is unable to locate
25

evidence from the relevant period that supports the ALJ’s finding
that Plaintiff is capable of the full physical range of medium
work.
In concluding that Plaintiff could lift up to fifty
pounds, the ALJ rejected (1) Dr. Asad’s opinion that Plaintiff
could occasionally lift or carry a maximum of ten pounds, but never
more than that, (R. 496), (2) Dr. Varriale’s opinion that he could
not lift more than ten pounds, (R. 475), and (3) Plaintiff’s
testimony that he could lift approximately ten pounds, (R. 55).
However, his rejection of that evidence left a gap in the record;
Plaintiff’s activities of daily living during the relevant period
do not speak to how much weight Plaintiff could lift or carry, and
Dr. Asad’s examination notes and Dr. Capobianco’s treatment notes
do not provide additional insight.

Thus, substantial evidence

does not support the ALJ’s conclusion that Plaintiff could engage
in medium work (lift no more than fifty pounds and frequently lift
and carry up to twenty-five pounds) as opposed to light work (lift
no more than twenty pounds and frequently lift and carry up to ten
pounds)

or

sedentary

work

(lift

no

more

than

ten

pounds).

20 C.F.R. § 404.1567(a)-(c).
The absence of evidence on Plaintiff’s ability to lift
and carry is significant.

Plaintiff, a high school graduate, was

fifty-two years old, or “closely approaching advanced age,” at the
time he filed his claim.

(R. 44, 66); 20 C.F.R. § 404.1563(d).
26

He was fifty-five years old, or an “advanced age,” at the time of
his hearing.

(R. 44); 20 C.F.R. § 404.1563(e).

The ALJ found

that he could not perform his past relevant work as a bus company
owner/manager,
unskilled

(R. 32),

work,

determined

(R. 30),

transferability

of

his

and

did

skills,

that
not

he

make

was
a

(R. 33).

limited

finding

on

Considering

to
the

these

factors, the Medical-Vocational Guidelines, known as the “Grids,”
could have resulted in a finding that Plaintiff was disabled if he
was capable of only sedentary or light work.

See 20 C.F.R.

Pt. 404, Subpt. P, App’x 2, Rules 201.6, 201.14, 202.6; Clark v.
Berryhill,

697

F.

App’x

49,

50-51

(2d

Cir.

2017);

see

also

20 C.F.R. § 404.1568(d)(4).
Therefore, the Court vacates the ALJ’s physical RFC
finding and remands this matter for further development of the
record on the effect of Plaintiff’s physical impairments on his
ability to work.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion (Docket
Entry

11)

is

GRANTED

IN

PART

and

DENIED

IN

PART

and

the

Commissioner’s motion (Docket Entry 15) is GRANTED IN PART and
DENIED IN PART.

The ALJ’s mental RFC finding is AFFIRMED, but his

physical RFC finding is VACATED.

This matter is REMANDED for

proceedings consistent with this Memorandum and Order, including

27

further

development

of

the

record

regarding

the

effect

of

Plaintiff’s physical impairments on his RFC.
The Clerk of the Court is directed to enter judgment
accordingly and mark this case CLOSED.

SO ORDERED

________________________
Joanna Seybert, U.S.D.J.
Dated:

January
7__, 2019
Central Islip, New York

28