Israel v. Commissioner of Social Security

Filing 29

DECISION AND ORDER denying # 18 and 27 Plaintiff's motion for judgment on the pleadings; and granting # 25 Defendant's motion for remand for further administrative proceedings. This matter is remanded to Defendant, pursuant to 42 USC 405(g) for further proceedings consistent with this Decision and Order. Signed by Chief Judge Glenn T. Suddaby on 3/21/17. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
ABRAHAM ISRAEL,
Plaintiff,
v.

5:15-CV-0534
(GTS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES:

OF COUNSEL:

ABRAHAM ISRAEL
Plaintiff, Pro Se
2006 West Genesee Street, Apartment 11
Syracuse, NY 13219
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

AMANDA J. LOCKSHIN, ESQ.
ELIZABETH D. ROTHSTEIN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Abraham Israel
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos.18, 25, 27.) For the reasons set forth below, Plaintiff’s motion for
judgment on the pleadings is denied and Defendant’s motion for remand for further
administrative proceedings is granted.
1

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff completed at least four years of college, and has past work as a fast food worker,
a home health aide, a mental health aide, and a driver. (T. 7, 12.) 1 Generally, Plaintiff’s
disability consists of low back injury (including an annular tear at L3-4, and a large central disc
herniation at L4-5 encroaching on the thecal sac and causing moderate bony stenosis and
radiculopathy in the right leg), injuries to the right knee and right foot, obesity, and depression.
(T. 128, 443); (Dkt. No. 18, at 2, 1-3 [Pl.’s Mem. of Law].)
B.

Procedural History
i.

Plaintiff’s Application of June 16, 2008

On June 16, 2008, Plaintiff applied for a period of disability and Disability Insurance
Benefits, alleging disability beginning January 28, 2007 (“First Application”). (T. 22, 440.)
Plaintiff’s First Application was initially denied on September 8, 2008, and upon reconsideration
on September 18, 2008. (Id.) Subsequently, Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”). (Id.) On March 8, 2010, Plaintiff appeared in a hearing
before ALJ Scott C. Firestone. (T. 35-70.) On April 9, 2010, ALJ Firestone issued a written
decision finding Plaintiff not disabled under the Social Security Act. (T. 18-33.) On March 3,
2011, the Appeals Council denied Plaintiff’s request for review. (T. 10-15.)
Thereafter, Plaintiff filed a civil action in the United States District Court for the
Northern District of New York. (T. 440,) On October 19, 2011, the District Court remanded the
case for further administrative proceedings. (Id.) On November 27, 2012, the Appeals Council

1

Page citations refer to the page numbers used on CM/ECF rather than the page numbers
contained in the parties’ respective motion papers.
2

vacated ALJ Firestone’s decision of April 9, 2010, and remanded the matter for further
administrative proceedings (Appeals Council’s “First Remand Order”). (Id.)
ii.

Plaintiff’s Application of May 10, 2011

On May 10, 2011, while Plaintiff’s First Application was pending in the United States
District Court for the Northern District of New York, Plaintiff applied for a period of disability
and Disability Insurance Benefits and Supplemental Security Income, alleging disability
beginning on January 28, 2007 (“Second Application”). (Id.) Plaintiff’s Second Application
was initially denied on September 19, 2011, after which Plaintiff timely requested a hearing
before an ALJ. (Id.) On July 30, 2012, Plaintiff appeared in a hearing before ALJ Elizabeth W.
Koennecke. (T. 527-48.) On September 24, 2012, ALJ Koennecke issued a written decision
finding Plaintiff not disabled under the Social Security Act. (T. 508-26.) On July 1, 2013, the
Appeals Council vacated ALJ Koennecke’s decision of September 24, 2012, and remanded the
case for further administrative proceedings (Appeals Council’s “Second Remand Order”). (T.
574-80.)
iii.

Plaintiff’s Consolidated Applications

On June 26, 2013, pursuant to the First Remand Order, Plaintiff appeared in a hearing
before ALJ Edward I. Pitts. (T. 31-76.) On July 1, 2013, the Second Remand Order directed the
ALJ to review Plaintiff’s First and Second Applications and render a decision for the entire
period at issue. (T. 574-80.) Accordingly, ALJ Pitts consolidated Plaintiff’s First and Second
Applications. (T. 440-41.) On August 8, 2013, ALJ Pitts issued a written decision finding
Plaintiff not disabled under the Social Security Act from January 28, 2007 through August 8,
2013. (T. 436-461.) On February 25, 2015, the Appeals Council denied Plaintiff’s request for

3

review, rendering the ALJ’s decision of August 8, 2013, the final decision of the Commissioner.
(T. 433-35.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 443-56.) First, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through March 31, 2011, and has not engaged in
substantial gainful activity since January 28, 2007, the alleged onset date. (T. 443.) Second, the
ALJ found that Plaintiff’s degenerative disc disease of the lumbar spine was a severe
impairment, but that Plaintiff’s mental impairments, right knee and right foot sprain,
hypertension, and obesity were not severe impairments under the regulations. (T. 443-47.)
Third, the ALJ found that Plaintiff’s severe impairments, alone or in combination, do not meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (the
“Listings”). (T. 447.) Fourth, the ALJ found that Plaintiff has the residual functional capacity
(“RFC”) to perform
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) 2
except he needs to change positions from sitting to standing or vice
versa once every hour. When the claimant is changing positions,
however, this is a matter of more or less stretching, he can remain at
the workstation and remain on task. He has occasional postural
limitations and [can perform] only occasional pushing and pulling
with the lower right extremity. He needs to avoid concentrated
exposure to extremes of temperature, vibration, humidity,
respiratory irritants, and workplace hazards. When he is walking on
rough and uneven ground or going up and down stairs, he needs to
use a handheld assistive device, such as a cane.
2

Sedentary work requires the abilities to sit for six hours, stand and walk for two hours,
and lift or carry up to ten pounds in an eight-hour workday. 20 C.F.R. §§ 404.1567(a),
416.967(a); SSR 83-10, 1983 WL 31251 (1983).

4

(T. 447-54.) Fifth, the ALJ found that Plaintiff is unable to perform any past
relevant work. (T. 454.) Sixth, and finally, the ALJ determined that there are other
jobs that exist in significant numbers in the national economy that Plaintiff can
perform. (T. 454-55.)
D.

The Parties’ Briefings on Their Cross-Motions
i.

Plaintiff’s Motion for Judgement on the Pleadings

Generally, Plaintiff asserts six arguments in support of his motion for judgment on the
pleadings. First, Plaintiff argues that his back injury is a severe impairment under the
regulations. (Dkt. No. 18, at 1 [Pl.’s Mem. of Law].) Second, construed liberally, Plaintiff
argues that the ALJ erred in weighing the opinions of treating physicians Ifechukwude Ojugbeli,
M.D., and Supriya Oberoi, M.D., which indicate that he is unable to perform the exertional
requirements of sedentary work. (Id., at 2-3.) Third, construed liberally, Plaintiff argues that the
ALJ erred in evaluating Plaintiff’s credibility. (Id., at 2.) Fourth, Plaintiff argues that he does
not have the RFC to perform any of his past relevant work. (Id., at 3.) Fifth, and finally,
Plaintiff argues that he does not have the RFC to perform other jobs existing in significant
numbers in the national economy. (Id.)
ii.

Defendant’s Motion for Remand for Further Administrative
Proceedings

Generally, Defendant asserts four arguments in support of her motion to remand for
further administrative proceedings. First, Defendant argues that remand for further proceedings
is appropriate because the ALJ’s RFC finding is based on an incomplete analysis of the medical
opinion evidence and, therefore, the Court will not be able to assess whether substantial evidence
supports the ALJ’s RFC finding and the Commissioner’s overall disability determination. (Dkt.
5

No. 25, at 4-7 [Def.’s Mem. of Law].) Second, Defendant argues that remand for an award of
benefits is not warranted because the record evidence does not compel the conclusion that
Plaintiff is disabled under the Social Security Act. (Id., at 7-9.) Third, Defendant argues that
Plaintiff’s allegation of bias by the ALJ points to no record evidence to support his argument.
(Id., at 9.) Fourth, and finally, Defendant argues that while the additional evidence submitted by
Plaintiff does not constitute new and material evidence, it would nonetheless be included in
Plaintiff’s file upon remand for further administrative proceedings.
iii.

Plaintiff’s Response to Defendant’s Motion

Generally, Plaintiff’s asserts two arguments in his response to Defendant’s motion to
remand this matter for further administrative proceedings. First, Plaintiff appears to argue that
the Defendant’s motion overlooked that (1) multiple other physicians (not addressed in
Defendant’s brief) agreed that he has a serious medical condition and (2) Plaintiff has attempted
multiple forms of treatment that have been unsuccessful in relieving his chronic back pain and
weakness in his right leg (including physical therapy, nerve block procedures, pain medication,
and working with home therapy equipment). (Dkt. No. 27, at 1[Pl.’s Mem. of Law].) Second,
and finally, Plaintiff appears to argue that the Commissioner’s decision was biased. (Id., at 1-2.)
II.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if
the correct legal standards were not applied, or it was not supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for
6

doubt whether the ALJ applied correct legal principles, application of the substantial evidence
standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct legal
principles.”); accord, Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.
1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis of
the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination
considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo
review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

7

B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. 20 C.F.R. § 404.1520. The
Supreme Court has recognized the validity of this sequential evaluation process. Bowen v.
Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of the proof as
to the first four steps, while the [Commissioner] must prove the final
one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982), accord, McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA
will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
III.

ANALYSIS
For the ease of analysis, Plaintiff’s arguments will be reorganized and consolidated

below.

8

A.

Whether the ALJ Step Two Determination Regarding Plaintiff’s Back Injury
Was Supported by Substantial Evidence

According to Social Security Regulations, “[a]n impairment or combination of
impairments is not severe if it does not significantly limit a [claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). The regulations
define “basic work activities” as the “abilities and aptitudes necessary to do most jobs,” with
examples including the following: (1) physical functions such as walking, standing, lifting,
pushing, pulling, carrying or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) using judgment; (5)
responding appropriately to supervision, co-workers and usual work situations; and (6) dealing
with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b). Accordingly, the
severity of an impairment is determined by the limitations imposed by the impairment, and not
merely by diagnosis of the impairment. Ellis v. Comm’r, 11-CV-1205, 2012 WL 5464632, at *4
(N.D.N.Y. Sept. 7, 2012) (citing Coleman v. Shalala, 895 F. Supp 50, 53 [S.D.N.Y. 1995]); see
also McConnell v. Astrue, 03-CV-0521, 2008 WL 833968 (N.D.N.Y. Mar. 27, 2008).
“The second step requirement under the prescribed disability analysis is truly de minimis,
and intended only to screen out the truly weakest of cases.” Davis v. Colvin, 11-CV-0658, 2013
WL 1183000, at *8 (N.D.N.Y. Feb. 27, 2013) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 [2d
Cir. 1995]). When an ALJ finds that one or more of a plaintiff’s impairments are severe, an error
in the severity analysis at step two may be harmless because the ALJ continued with the five-step
analysis and did not deny the claim based on lack of a severe impairment alone. Ellis, 2012 WL
5464632, at *5; Tyron v. Astrue, 10-CV-0537, 2012 WL 398952, at *3 (N.D.N.Y. Feb. 7, 2012);
Kemp v. Comm’r, 10-CV-1244, 2011 WL 3876526, at *8 (N.D.N.Y. Aug. 11, 2011).

9

When “an ALJ has omitted an impairment from step two of the sequential analysis, other
courts have declined to remand if the ALJ clearly considered the effects of the impairment in the
remainder of his analysis.” Chavis v. Astrue, 07-CV-0018, 2010 WL 624039, at *12 (N.D.N.Y.
Feb. 18, 2010); see also 20 C.F.R. §§ 404.1523, 416.923 (stating that the ALJ is required to
consider the “combined effect of all of [a plaintiff’s] impairments without regard to whether any
such impairment, if considered separately would be of sufficient severity”)
Plaintiff argues that his back injury (including an annular tear at L3-4 and a large central
disc herniation at L4-5 encroaching on the thecal sac and causing moderate bony stenosis and
radiculopathy in the right leg) causes low back pain with radiation into his side, calf and ankle; a
buckling sensation in his back; and numbness in his right leg that limit his ability to perform
basic work activities. (Dkt. No. 18, at 1 [Pl.’s Mem. of Law].) While the ALJ found that
Plaintiff’s degenerative disc disease of the lumbar spine was a severe impairment, Defendant
acknowledged that it is not clear whether the ALJ considered the October 8, 2012, MRI
examination of Plaintiff’s lumbar spine diagnoses of lumbar stenosis and lumbar radiculopathy
(in addition to degenerative disc disease). (Dkt. No. 25, at 3.)
For the reasons set forth below in Part III.B. of this Decision and Order, this matter is
being remanded for the ALJ to reevaluate the medical opinion evidence and Plaintiff’s RFC
based on the complete medical record. Upon remand, the ALJ should also consider the severity
of Plaintiff’s back impairments in addition to degenerative disc disease, and any other
impairments as appropriate based on the complete medical record and any new medical evidence
obtained.

10

B.

Whether the ALJ Erred in Assessing the Opinions of Plaintiff’s Treating
Physicians Dr. Oberoi and Dr. Ojugbeli

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 25, at 5-8 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
Social Security regulations define medical opinions as “statements from physicians and
psychologists or other acceptable medical sources that reflect judgments about the nature and
severity of . . . [a plaintiff’s] impairment(s), including . . . [a plaintiff’s] symptoms, diagnosis and
prognosis, what . . . [a plaintiff] can still do despite impairment(s), and . . . [a plaintiff’s] physical
or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). The ALJ must consider opinions from
acceptable medical sources, and may consider opinions from other sources, to show how a
claimant’s impairments may affect his or her ability to work. 20 C.F.R. § 404.1513(a)(1)-(5)
(identifying the five types of acceptable medical sources as: (1) licensed physicians, (2) licensed
or certified psychologists, (3) licensed optometrists, (4) licensed podiatrists, and (5) qualified
speech-language pathologists).
Under the “treating physician’s rule,” controlling weight is afforded to an opinion from a
plaintiff’s treating physician when (1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques, and (2) the opinion is not inconsistent with other
substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §
404.1527(c); Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015), Brogan-Dawley v. Astrue, 484
F. App’x 632, 633-34 (2d Cir. 2012). Regulations require an ALJ to set forth his or her reasons
for the weight afforded to a treating physician’s opinion. Greek, 801 F.3d at 375; Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000).

11

When controlling weight is not afforded to the opinion of a treating physician, or when
assessing a medical opinion from another source, the ALJ should consider the following factors
to determine the proper weight to afford the opinion: (1) the frequency, length, nature and extent
of the physician’s treatment, (2) the amount of medical evidence supporting the opinion, (3) the
consistency of the opinion with the remaining medical evidence, and (4) whether the physician is
a specialist. 20 C.F.R. § 404.1527(c); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004)
(listing regulatory factors).
Here, the record contains multiple medical opinions of Plaintiff’s work-related physical
abilities and limitations, including the opinions of treating physicians Dr. Oberoi and Dr.
Ojugbeli (discussed below in Part III.B.viii. and Part III.B.ix.) that Plaintiff argues are entitled to
controlling weight.
i.

Treating Family Practitioner Kristen McNamara, M.D.

In February 2007, Dr. McNamara opined that, due to Plaintiff’s right foot pain and lower
back disorder, he should avoid standing for prolonged periods of time, lifting greater than 20
pounds, and required the ability to alternate between positions every 20 to 20 minutes. (T. 448.)
ii.

Independent Medical Examiner E. Robert Wilson, M.D.

In April 2007, Dr. Wilson reviewed Plaintiff’s medical records and performed an
independent medical examination of Plaintiff. (T. 174-77.) Dr. Wilson noted that Plaintiff
reported pain in his back, right lower extremity, and right foot resulting from an accident in
January 2007. (T. 117.) Dr. Wilson opined that Plaintiff could return to work that did not
require lifting more than 20 pounds, walking and standing for more than 20 minutes
uninterrupted, or repetitive bending. (T. 117, 448.)

12

iii.

Independent Medical Examiner N. Rehmatullah, M.D.

In September 2007, Dr. Rehmatullah opined that Plaintiff could perform work activity
that did not involve lifting over 20 pounds, repetitive or sustained bending and lifting, and
allowed him to sit and stand at his convenience. (T. 448). Upon examination, Dr. Rehmatullah
observed that Plaintiff walked with a limp and had some tenderness and tightness in the lumbar
area. (T. 449.) However, Dr. Rehmatullah also observed that Plaintiff could walk on his heels
and toes without any difficulty, his upper and lower extremities were neurologically intact, and
his right knee showed full mobility. (Id.)
iv.

Independent Medical Examiner Donald Paarlberg, M.D.

In May 2008, Dr. Paarlberg opined that Plaintiff could return to work but restricted him
to no interaction with combative patients, no repetitive bending, and no heavy lifting over 20
pounds. (T. 448). Upon examination, Dr. Paarlberg observed that Plaintiff exhibited fairly good
range of motion in his back, was able to perform heel and toe walking without any difficulty, and
had a negative straight leg raising test on the left but a positive straight leg raising test on the
right. (T. 449.)
v.

Treating Physiatrist Thomas Masten, M.D.

In March 2011, Dr. Masten opined that Plaintiff was “very limited” in his ability to walk,
stand, sit, push, bend, lift, carry, climb stairs, and use public transportation. (T. 451.) Dr.
Masten further opined that Plaintiff could lift/carry ten pounds occasionally, stand/walk for less
than two hours and sit for less than six hours in an eight-hour workday, and should never
perform postural activities except climbing. (Id.) Additionally, Dr. Masten indicated that
Plaintiff was limited to lifting less than 15 pounds, walking for less than an hour,
standing for less than an hour, and sitting for less than an hour. (Id.) On multiple occasions, Dr.
13

Masten indicated that Plaintiff was limited to less than sedentary work. (Id.)
vi.

Consultative Examiner Kalyani Ganesh, M.D.

In July 2008, Dr. Ganesh diagnosed Plaintiff with herniated disc of the lumbosacral spine
and contusion of the right foot. (T. 311, 449-50.) Dr. Ganesh indicated that an x-ray
examination of Plaintiff’s spine showed discogenic disease at L4 to L5, but an x-ray examination
of Plaintiff’s right knee did not show acute fracture, dislocation or destructive bony lesion. (T.
311, 450) (referencing T. 313-14.) In sum, Dr. Ganesh opined that Plaintiff had a “mild to
moderate” limitation in lifting, carrying, pushing, and pulling; but had no gross physical
limitation noted to sitting, standing, or walking. (T. 311, 449.)
vii.

Consultative Examiner Tanya Perkins-Mwanutali, M.D.

In August 2011, Dr. Perkins-Mwanutali diagnosed Plaintiff with herniated disc in the
lumbar region with chronic recurrent pain, and weakness in the right leg with a history of the
right leg giving out and causing falls. (T. 1424.) Upon examination, Dr. Mwantuali observed
that Plaintiff used a cane for ambulation; had tenderness to palpation at the lower lumbar region
and paraspinal tenderness; had decreased range of motion of the lumbar spine, shoulders, and
hip; and had diminished deep tendon reflexes bilaterally. (T. 451.) However, Dr. PerkinsMwantuali also observed that Plaintiff had negative straight leg tests bilaterally; had full range of
motion in the elbows, forearms, wrists, knees, and ankles; had stable and nontender joints; had
no evidence of muscle atrophy; had four out of five strength in the lower extremities; and had
intact hand and finger dexterity and full grip strength in his hands. (Id.) In sum, Dr. PerkinsMwantuali opined that Plaintiff had “mild to moderate limitations” in bending, pushing, pulling,
lifting, walking and standing. (T. 451, 1424.)

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viii.

Treating Physician Dr. Oberoi

In December 2009, Dr. Oberoi provided an opinion of Plaintiff’s work-related physical
limitations due to lower back pain (lumbago) and history of degenerative disc disease. (T. 38689.) Dr. Oberoi opined that Plaintiff could sit less than six hours, stand/walk less than two hours,
and lift less than ten pounds occasionally4 during an eight-hour workday. (T. 386-87.) Dr.
Oberoi further opined that Plaintiff could occasionally climb, balance, kneel, crouch, and crawl;
could never stoop; and had limitations in his ability to push/pull with the lower extremities. (T.
387.) Finally, Dr. Oberoi opined that Plaintiff could perform unlimited reaching in all directions,
handling, fingering, and feeling with his fingers, and had no environmental limitations. (T. 38889.)
ix.

Treating Physician Dr. Ojugbeli

In May 2013, Dr. Ojugbeli provided an opinion of Plaintiff's work-related physical
limitations due to his pain and weakness in the legs. (T. 764-67.) Dr. Ojugbeli opined that
Plaintiff could sit less than six hours, stand/walk less than two hours, and lift/carry ten pounds
occasionally in an eight-hour workday. (Id.) Dr. Ojugbeli opined that Plaintiff could
occasionally climb stairs; could never balance, kneel, crouch, crawl or stoop; and had limitations
in his ability to push/pull. (T. 764-65.) Dr. Ojugbeli further opined that Plaintiff had limitations
reaching in all directions, but could perform unlimited handling, fingering, and feeling with his
fingers. (T. 766.) Finally, Dr. Ojugbeli opined that Plaintiff had limitations in his ability to be
exposed to temperature extremes, vibration, humidity/wetness, and hazards. (T. 767.)

4

The assessment form indicated that “occasionally” means occurring from very little up to
one-third of an eight-hour workday (cumulative, not continuous). (T. 386.)
15

In determining Plaintiff’s physical RFC, the ALJ afforded less than controlling weight to
the opinions of treating physicians Dr. Oberoi and Dr. Ojugbeli. (T. 450-53.) However, a
review his analysis of the opinion evidence indicates that it is unclear whether the ALJ reviewed
the complete record. (Id.)
For example, the ALJ reasoned that he afforded “limited” weight to Dr. Ojugbeli’s
opinion, in part because it was contradicted by his own treatment notes that “characterized
[Plaintiff’s] lower back disorder as ‘lumbago, which is not indicative of a disabling condition,”
and contained normal musculoskeletal and neurological findings. (T. 452.) However, as
Defendant acknowledged, it is not clear whether the ALJ considered the October 2012 MRI
examination of Plaintiff’s lumbar spine and diagnoses including degenerative disc disease,
lumbar stenosis, and lumbar radiculopathy. (Dkt. No. 25, at 3.)
As Defendant further acknowledged, while the ALJ correctly noted multiple normal
physical examination findings in late 2012 and early 2013, it is not clear whether the ALJ also
considered the multiple abnormal examination findings around that time (including weakness,
numbness, diminished sensation to light touch, and depressed deep tendon reflexes in Plaintiff’s
lower right extremity; and Plaintiff’s diminished lower extremity strength bilaterally, difficulty
walking, and use of a cane to ambulate). (Id., at 5-6.) The Court notes that an ALJ cannot
selectively rely on the evidence from medical sources that supports a particular conclusion while
ignoring the contrary evidence. Bush v. Colvin, 13-CV-0994, 2015 WL 224764, at *11
(N.D.N.Y. Jan. 15, 2015); Royal v. Astrue, 11-CV-0456, 2012 WL 5449610, at *6 (N.D.N.Y.
Oct. 2, 2012) (citing, inter alia, Fiorello v. Heckler, 725 F.2d 174, 175-76 [2d Cir. 1983]).
For these reasons, the Court finds that the ALJ erred in assessing the opinions of
treating physicians Dr. Ojugbeli and Dr. Oberoi, and remand is required for the ALJ to
16

reevaluate the medial opinion evidence and Plaintiff’s RFC based on a comprehensive review
and analysis of the complete medical record. As appropriate, the ALJ may recontact Dr. Oberoi,
Dr. Ojugbeli, and/or the other medical sources for clarification or to obtain additional
information regarding their opinions. See 20 C.F.R. §§ 404.1520b(c)(1); 416.920b(c)(1)
(providing that an ALJ may recontact a medical source for clarification or to obtain additional
information). Because this matter requires remand for the ALJ to reevaluate the medical
opinions and Plaintiff’s RFC, the Court need not, and will not, address Plaintiff’s arguments
regarding subsequent steps of the sequential evaluation.
C.

Whether This Matter Should Be Reversed Without Remand

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 25, at 7-9 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
“Sentence four of Section 405(g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner with or without remanding the case for a
rehearing.” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (citing 42 U.S.C. § 405[g]).
The Second Circuit has indicated that remand for further development of the record is warranted
when there are gaps in the administrative record or the ALJ has applied an improper legal
standard. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (internal citations omitted). A
remand for calculation of benefits is warranted “when the record provides persuasive proof of
disability and a remand for further evidentiary proceedings would serve no purpose.” Parker v.
Harris, 626 F.3d 225, 235 (2d Cir. 1980); accord, Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir.
2002); Rosa, 168 F.3d at 83.

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For the reasons discussed above in Parts III.A and III.B. of this Decision and Order, this
matter requires remand for further administrative proceedings. The Court has considered
whether the record provides persuasive proof that Plaintiff is disabled and answers this question
in the negative in part for the reasons stated in Defendant’s memorandum of law. More
specifically, the Court finds that the record contains medical opinions suggesting that Plaintiff
can perform at least some level of physical work activity, including the physical opinions of Dr.
McNamara, Dr. Wilson, Dr. Rehmatullah, and Dr. Paarlberg discussed above in Part III.B. of this
Decision and Order.
However, regarding the opinions of consultative examiners Dr. Ganesh and Dr. PerkinsMwantuali discussed above in Part III.B. of this Decision and Order, the Court notes that both
Dr. Ganesh and Dr. Perkins-Mwantuali opined that Plaintiff had “mild to moderate” limitations
in various physical activities required to perform sedentary work. The Second Circuit has found
that a consultative examiner’s use of the terms “moderate” and “mild,” without additional
information, was so vague as to render the opinion useless in evaluating whether the plaintiff
could perform the exertional requirements of sedentary work. Curry v. Apfel, 209 F.3d 117, 123
(2d Cir. 2000) (superceded by statute on other grounds).
Upon remand, the ALJ may recontact Dr. Ganesh, Dr. Perkins-Mwantuali, or the other
medical sources for clarification or to obtain additional information regarding their opinions. See
20 C.F.R. §§ 404.1520b(c)(1); 416.920b(c)(1). This may include recontacting Dr. Ganesh and/or
Dr. Perkins-Mwantuali to obtain a more specific opinion of Plaintiff’s physical limitations,
including the amount of weight that Plaintiff can lift and carry, and how frequently, as well as
the number of hours that Plaintiff could sit, stand, and walk during an eight-hour workday.

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D.

Whether the ALJ’s Decision Was Biased

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 25, at 9 [Def.’s Mem. of
Law].) To those reasons, the Court adds the following analysis.
The Court must start from the presumption that an administrative adjudicator, such as an
ALJ, is unbiased. Schweiker v. McClure, 456 U.S. 188, 195 (1982). Moreover, the Court must
presume that an administrative adjudicator, such as an ALJ, will exercise his or her decisionmaking authority with honesty and integrity. Withrow v. Larkin, 421 U.S. 35, 47 (1975). Here,
Plaintiff’s conclusory arguments that the ALJ’s decisions and the proceedings before the
Commissioner were biased are not supported by the ALJ’s decisions, hearing transcripts, or any
other document in the record. Therefore, relief on this basis is unwarranted.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. Nos. 18, 27) is
DENIED; and it is further
ORDERED that Defendant’s motion for remand for further administrative proceedings
(Dkt. No. 25) is GRANTED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:

March 21, 2017
Syracuse, New York
_____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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