Beall v. Colvin

Filing 13

MEMORANDUM-DECISION AND ORDER: that plaintiff's motion for judgment on the pleadings is Granted (Dkt. No. #11 . The matter is remanded to the Commissioner for additional proceedings consistent with the above, pursuant to sentence four of 42 U.S.C. 405(g); that the Commissioner's motion for judgment on the pleadings (Dkt. No. #12 ) is Denied and that the Clerk of the Court serve copies of the Memorandum Decision and Order on the parties in accordance with Local Rules. Signed by Magistrate Judge Christian F. Hummel on 03/27/2017. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

MORGAN CHRISTOPHER BEALL,
Plaintiff,
v.

No. 5:16-CV-92

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE

APPEARANCES:

OF COUNSEL:

Olinsky Law Group
Attorneys for Plaintiff
One Park Place
300 South State Street, Suite 420
Syracuse, New York 13202

HOWARD D. OLINSKY, ESQ.

Social Security Administration,
Office of General Counsel
Attorneys for Defendant
26 Federal Plaza - Room 3904
New York, New York 10278

JASON P. PECK, ESQ.
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
Plaintiff Morgan Christopher Beall (“Plaintiff”) brings this action pursuant to 42 U.S.C.
§ 405(g) seeking review of a decision by the Commissioner of Social Security
(“Commissioner”) denying his application for benefits under the Social Security Act (“Act”).
Plaintiff moves for a finding of disability, or in the alternative, for the matter to be remanded
for further proceedings, and the Commissioner cross-moves for a judgment on the

pleadings. Dkt. Nos. 1, 8.

I. Background
On September 26, 2012, plaintiff protectively filed an application for disability
insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq., claiming an
alleged onset date of May 15, 2012. T.1 168-70. The application was denied on December
20, 2012. Id. at 87-90. Plaintiff requested a hearing before an administrative law judge
(“ALJ”), which was first held before ALJ Marie Greener on February 27, 2014. Id. at 48-70.
A second hearing was held on June 19, 2014, at which time ALJ Greener sought the
testimony of a vocational expert. See T. 29-47. In a decision dated August 6, 2014, the
ALJ held that plaintiff was not entitled to disability benefits. Id. at 10-28. Plaintiff filed a
timely request for review with the Appeals Council, and on December 2, 2015, the request
was denied, thus making the ALJ’s findings the final decision of the Commissioner. Id. at 15. This action followed.

II. Discussion
A. Standard of Review
In reviewing a final decision of the Commissioner, a court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial ev idence is
“‘more than a mere scintilla,’” meaning that in the record one can find “‘such relevant

1

“T.” followed by a number refers to the pages of the administrative transcript filed by the
Commissioner. Dkt. No. 9.

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evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotation marks omitted)).
“In addition, an ALJ must set forth the crucial factors justifying his findings with
sufficient specificity to allow a court to determine whether substantial evidence supports the
decision.” Barringer v. Comm’r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute
its interpretation of the administrative record for that of the Commissioner if the record
contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998). If the Commissioner’s finding is supported by substantial evidence, it is
conclusive. 42 U.S.C. § 405(g); see Halloran, 362 F.3d at 31.

B. Determination of Disability
“Every individual who is under a disability. . . shall be entitled to a disability. . . benefit
. . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual unable to continue with his or her
previous work or any other employment that may be available to him or her based upon
age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be
supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. §
423(d)(3). Additionally, the severity of the impairment is “based [upon] objective medical
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facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.” Ventura v. Barnhart,
No. 04 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)) (additional citation om itted).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to
determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he [or she] is
not, the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his [or her] 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 [or her] 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 [or she] has the residual
functional capacity (“RFC”) to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work,
the [Commissioner] then determines whether there is other work
which the claimant could perform.
Berry, 675 F.2d at 467. The plaintiff bears the initial burden of proof to establish each of the
first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 19 98) (citing Berry,
675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the
Commissioner to prove that the plaintiff is still able to engage in gainful employment
somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

C. ALJ Greener’s Findings
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Plaintiff, represented by counsel, testified at the hearings held on February 27 and
June 19, 2014. T. 29-70. Using the five-step sequential evaluation, ALJ Greener found that
plaintiff (1) had not engaged in substantial gainful activity since May 15, 2012, the alleged
onset date; (2) had the following severe medically-determinable impairments: degenerative
disc disease in the cervical and lumbar spines, adjustment disorder, and post-traumatic
stress disorder; (3) did not have an impairment, alone or in combination, sufficient to meet
the listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404; (4)
maintained “the residual functional capacity to perform less than a full range of light work as
defined in 20 CFR 404.1567(b). He can lift and carry 20 pounds occasionally, 10 pounds
frequently, sit for 6 hours in an 8-hour workday and stand or walk for 6 hours in that
workday if he can alternate sitting and standing, with sitting limited to 60 minutes at a time
after which he can stand for 5 minutes or so. During the position change, he does not have
to leave the workstation. The claimant can stand or walk for 60 minutes at a time, but then
has to sit for 5 minutes or so before resuming standing and walking. The work must be low
stress, specifically meaning that it must concern routine daily tasks that do not significantly
change in pace or location on a daily basis and do not ordinarily require confrontation with
others, such as arguing with customers or detaining or restraining individuals”; and, thus (5)
was capable of performing jobs existing in significant numbers in the national economy. Id.
at 15-23.

D. Plaintiff’s Contentions
Plaintiff contends that the ALJ (1) erred in failing to assign any weight to plaintiff’s
Veterans Administration (VA) disability determination; (2) erred in failing to find that
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plaintiff’s degenerative disc disease did not meet or equal Listing 1.04(A); (3) erred in failing
to give good reasons for the rejection of the opinions of physical therapist Caryn Lindsay,
and pain management specialist Dr. Renee S. Melfi, M.D.; (4) erred in assessing plaintiff’s
credibility in terms of his pain; and (5) erred in presenting the vocational expert with
hypothetical questions that did not fully take into account plaintiff’s limitations. See Dkt. No.
11.

1. Listing 1.04(A)
As previously stated, at step three of the sequential disability evaluation process, the
ALJ must determine whether the claimant's conditions meet or equal the requirements for
any impairment listed in Part 404 of the Social Security Regulations, Subpart P, Appendix 1.
20 C.F.R. § 404.1520(a)(4)(iii). “The Listing of Impairments describes, for each of the major
body systems, impairments which are considered severe enough to prevent a person from
doing any gainful activity.” 20 C.F.R. § 404.1525(a). If a claimant's impairment or
combination of impairments meets or equals a listed impairment, the evaluation process is
concluded and the claimant is considered disabled without considering the claimant's age,
education, or work experience. 20 C.F.R. § 404.1520(a)(4)(iii).
The burden is on the plaintiff to present medical findings which show that his or her
impairments match a listing or are equal in severity to a listed impairment. Zwick v. Apfel,
No. 97 Civ. 5140(JGK), 1998 WL 426800, at *6 (S.D.N.Y. July 27, 1998). In order to show
that an impairment matches a listing, the claimant must show that his or her impairment
meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20

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C.F.R. § 404.1525(d). If a claimant's impairment “manifests only some of those criteria, no
matter how severely,” such impairment does not qualify. Sullivan, 493 U.S. at 530.
To make a showing of medical equivalence to a listed impairment, the claimant must
present medical findings equal in severity to all requirements, which are supported by
medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §
404.1526(b). Any abnormal physical findings “must be shown to persist on repeated
examinations despite therapy.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B). Furtherm ore,
the medical reports should reflect physical limitations based upon actual observations and
not just the claimant's subjective complaints. Id.
With regard to disorders of the spine, Listing 1.04(A) states that the disorder,
resulting in compromise of a nerve root, including the cauda equina, or the spinal cord must
be accompanied by:
[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising
test (sitting and supine)[.]
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04(A).
Here, the ALJ summarily stated that, having reviewed the criteria for Listing 1.04(A),
plaintiff’s impairment did not meet or equal the listing. T. 17. Plaintiff argues that his
degenerative disc disease meets or equals Listing 1.04(A). Dkt. No. 11 at 12. Defendant
argues that substantial evidence supports the ALJ’s determination that plaintiff’s spine
impairment does not meet or equal Listing 1.04(A). Dkt. No. 12 at 10.

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Plaintiff injured his back at a firing range on May 12, 2012. T. 55. Following this
incident, plaintiff was examined by a physician’s assistant at Syracuse Orthopedic
Associates. Id. at 252-54. At that time, plaintiff exhibited pain upon flexion and extension of
the lumbar spine. Id. at 253. Sensation in his lef t foot was diminished for the entire foot.
Id. at 254. Sensory exams on plaintiff’s lower extremities were normal on June 18, 2012.
Id. at 250. Plaintiff had an MRI on June 18, 2012 that showed a small left foraminal disc
protrusion contributing to mild left exiting neural foraminal stenosis at L5-S1. Id. at 339.
However, the MRI was “essentially unremarkable” otherwise. Id. Later examinations
revealed that plaintiff exhibited a labored gait, radiating back pain, and tenderness across
parts of his back. See T. 291, 365, 372, 420, 422. Straight leg raise tests performed on
plaintiff were negative on June 18, 2012, but positive on August 24, 2012. Id. at 250, 386.
On August 24, 2012, during a worker’s compensation independent medical examination, Dr.
Louis Benton, M.D. found that plaintiff suffered from degenerative disc disease, but found
“no neurological findings.” Id. at 287. In November 2012, a straight leg test and sensory
exams performed on plaintiff were negative as to both lower extremities. Id. at 273. On
May 6, 2013, Dr. Melfi observed tenderness in plaintiff’s paravertebral areas, along with
increased pain upon extension and flexion. Id. at 365. However, Dr. Melfi also noted that
plaintiff’s sensation was intact bilaterally in his lower extremities. Id. Plaintiff presented to
Dr. Melfi on January 21, 2014 and complained of worsening pain in his back that radiated in
to the bilateral buttocks and bilateral posterior lower extremities. Id. at 422. Dr. Melfi
observed that sensation was intact to plaintiff’s lower extremities, and a deep tendon reflex
test was normal. Id.

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Based on the foregoing, the Court finds that substantial evidence supports the ALJ’s
determination that plaintiff did not meet or equal Listing 1.04(A). Plaintiff’s MRI results did
not show evidence of nerve root compression as required under Listing 1.04(A). See T.
339. However, even if the MRI results did exhibit nerve root compression, the evidence
does not show that plaintiff also suffered from the additional conditions under Listing
1.04(A). Although the medical evidence shows that plaintiff suffered from pain and
tenderness upon palpation of the lumbar area and diminished range of motion, sensory
exams and straight leg tests were largely normal. See T. 250, 365, 386, 422. Thus,
substantial evidence supported the ALJ’s determination that plaintiff’s degenerative disc
disease did not meet or equal Listing 1.04(A). See Pratt v. Astrue, No. 7:06-CV-551
LEK/DRH, 2008 WL 2594430, at *7 (N.D.N.Y. June 27, 2008) (finding that the plaintiff’s
lumbar spine condition did not meet Listing 1.04(A) where the plaintiff’s sensory exams and
straight leg tests were largely unremarkable and plaintiff’s MRI did not exhibit nerve root
compression).
Accordingly, the Commissioner’s findings on this ground are affirmed.

2. RFC
RFC describes what a claimant is capable of doing despite his or her impairments
considering all relevant evidence, which consists of physical limitations, symptoms, and
other limitations beyond the symptoms. Martone v. Apfel, 70 F. Supp. 2d 145,150
(N.D.N.Y. 1999); 20 C.F.R. §§ 404.1545, 416.945. “In assessing RFC, the ALJ’s findings
must specify the functions plaintiff is capable of performing; conclusory statements
regarding plaintiff’s capacities are not sufficient.” Martone, 70 F. Supp. 2d at 150. RFC is
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then used to determine whether the claimant can perform his or her past relevant work in
the national economy. New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R.
§§ 404.1545, 416.960 (2003). The Second Circuit has clarified that, in step five of the
Commissioner’s analysis, once RFC has been determined “the Commissioner need only
show that there is work in the national economy that the claimant can do; he need not
provide additional evidence of the claimant’s [RFC].” Poupore v. Astrue, 566 F.3d 303, 306
(2d Cir. 2009).

a. Treating Physician Rule
Plaintiff argues that the ALJ erred in failing to provide good reasons for granting no
weight to physical therapist Caryn Lindsay’s asessment of plaintiff’s impairments, and failing
to grant controlling weight to the opinion of Dr. Melfi, in violation of the treating physician
rule. Dkt. No. 11 at 13-19.
When evaluating a claim seeking disability benefits, factors to be considered include
objective medical facts, clinical findings, the treating physician’s diagnoses, subjective
evidence of disability, and pain related by the claimant. Harris v. R.R. Ret. Bd., 948 F.2d
123, 126 (2d Cir. 1991). Generally, more weight is given to a treating source. Under the
regulations, a treating physician’s opinion is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2) (2005);
Shaw, 221 F.3d at 134. “This rule applies equally to retrospective opinions given by treating
physicians.” Campbell v. Astrue, 596 F. Supp. 2d 445, 452 (D. Conn. 2009) (citations

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omitted). Before a treating physician’s opinion can be discounted, the ALJ must provide
“good reasons.” Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
The ALJ is required to assess the following factors in determining how much weight
to accord the physician’s opinion: “(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.” Schaal, 134 F.3d at 503. If other evidence in the
record conflicts with the opinion of the treating physician, this opinion will not be deemed
controlling or conclusive, and the less consistent the opinion is, the less weight it will be
given. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). Ultimately, the final determination
of disability and a claimant’s inability to work rests with the Commissioner. Id. at 133-34;
see 20 C.F.R. § 404.1527(e) (2005).
Plaintiff argues that the ALJ erred in summarily dismissing the opinion of Caryn
Lindsay, a physical therapist. Dkt. No. 11 at 15. Lindsay completed a medical source
statement on September 20, 2012. T. 313-17. Lindsay opined that plaintiff could
occasionally lift up to ten pounds, and never more than that amount. Id. at 313. He could
carry up to ten pounds frequently, between ten and twenty pounds occasionally, and never
carry more than twenty pounds for any amount of time. Id. Lindsay further opined that
plaintiff could sit for only ten minutes at a time without interruption, and for two hours total
during an eight-hour workday. Id. at 314. He could stand for only ten minutes total without
interruption, and for two hours total during an eight-hour workday. Id. He could walk for
one hour without interruption, and for only two hours total during an eight-hour workday. Id.

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Lindsay noted that plaintiff would need to lie down for the remaining six hours during an
eight-hour workday. Id.
As to plaintiff’s use of his hands, Lindsay opined that he could reach in all directions,
and push or pull occasionally. T. 315. He could continuously perform handling, feeling, and
fingering. Id. As to plaintiff’s use of his feet, Lindsay opined that he could operate foot
controls occasionally. Id.
As to postural activities, Lindsay opined that plaintiff could frequently climb stairs and
ramps, but never climb ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. T. 316.
Lindsay attributed all of the limitations she outlined in the September 2012 medical source
statement to plaintiff’s increased pain, as well as his x-ray and MRI results. See id. at 31316.
On November 27, 2012, Dr. Elke Lorensen, M.D. performed a consultative
orthopedic examination of plaintiff. T. 362-64. Dr. Lorensen noted that plaintif f had
“moderate restrictions, bending, lifting, and reaching.” Id. at 364.
Lindsay and Dr. Melfi submitted a co-signed medical source statement, signed by
Lindsay on January 30, 2014, and by Dr. Melfi on February 4, 2014. T. 425-27. Dr. Melfi
opined that plaintiff could sit for twenty to thirty minutes at a time before needing to get up,
but could never sit for more than two hours during an eight-hour workday. Id. at 425-26.
Plaintiff could stand for no more than ten minutes before needing to sit down, and could
stand for only about two hours during an eight-hour workday. Id. Dr. Melfi noted that
plaintiff needed a job that permits him to shift from sitting, standing, or walking at will. Id.
Dr. Melfi assessed that plaintiff could lift ten pounds or less occasionally, but that he
could never lift more than twenty pounds. T. 426. He could twist rarely, climb stairs
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occasionally, and never crouch or squat, stoop or bend, or climb ladders. Id. He could
frequently use his hands to turn or twist objects, and perform fine manipulations with his
fingers, but he could only rarely use his arms to reach overhead. Id.
Dr. Melfi opined that plaintiff would need to take a break approximately every thirty
minutes during the workday, and rest for thirty minutes before returning to work. T. 427.
Dr. Melfi opined that plaintiff would be off task more than 20% of the time during an eighthour workday, and absent from work for more than four days per month. Id. Dr. Melfi
further stated that plaintiff experiences numbness and tingling in his lower extremities. Id.

i The ALJ’s Assessment of Dr. Melfi’s February 4, 2014 Opinion
The ALJ assigned “[l]ittle evidentiary weight” to Dr. Melfi’s opinion and noted that Dr.
Melfi’s assessment that plaintiff would need to sit and stand at will is not supported by the
record. T. 21. Later in the ALJ’s decision, “some weight” was given to “various” of Dr.
Melfi’s statements, and specifically her statement from December 10, 2012 that noted that
plaintiff could perform frequent sitting and standing, with opportunity to change position and
posture as needed for comfort, for 2.5-5.5 hours total during an eight-hour workday. Id. at
374. This statement from Dr. Melfi also noted that plaintiff could walk for up to two and a
half hours during an eight hour workday while carrying “duty gear.” Id. Dr. Melfi also found
that plaintiff could carry twenty pounds of duty gear, but that thirty to thirty-five pounds
would be “excessive.” Id. The ALJ did not identify which other statements of Dr. Melfi’s that
he gave significant weight to. Id. at 21.
The Court finds that the ALJ’s reasoning for not crediting Dr. Melfi’s February 4, 2014
medical opinion falls short of the criteria required by the treating physician rule. The
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February 4, 2014 opinion is the only opinion in the record from a treating physician
regarding plaintiff’s functional limitations. Instead of identifying the medical evidence in the
record that would support less restrictive limitations than the ones imposed by Dr. Melfi, the
ALJ fixated mostly on the bare notations of “partial mild to moderate disability” and “total
disability” that Dr. Melfi made in various treatment notes, in addition to plaintiff’s
unwillingness to pay for a Functional Capacity Evaluation. T. 20. In addition, the ALJ
contradicts herself where she states that she has given “some weight” to some of Dr. Melfi’s
opinions, but then states that the many statements in the record made by Dr. Melfi
regarding plaintiff have been in the context of a worker’s compensation claim, and have no
value in the adjudication of plaintiff’s Social Security benefits. Id. at 21. The ALJ’s decision
does not “meaningfully assess” Dr. Melfi’s opinions in a manner sufficient to reject them.
Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 431 (S.D.N.Y. 2010).
Contrary to the ALJ’s conclusion, Dr. Melfi’s opinion was supported by the medical
evidence. In January 2012, plaintiff visited Dr. DiStefano complaining of constant pain in his
lumbar area, radiating to both posterior thighs and legs. T. 256. Dr. DiStefano noted that
plaintiff was in mild discomfort, with pain upon extension, and tenderness upon palpation in
the lumbar area. Id. at 256-57. Plaintiff was referred to Dr. Melfi for a pain consultation. Id.
Following his injury at work, on May 18, 2012, plaintiff visited Dr. DiStefano again and
exhibited pain upon extension, along with diminished sensation in his left foot. Id. at 25354. His symptoms improved slightly in June 2012. Id. at 250.
Plaintiff received a right L4-5, L5-S1 intra-articular facet injection from Dr. Melfi on
May 17, 2012. T. 341. Plaintiff’s pain improved after the injection. Id. At a June 27, 2012
follow-up visit, plaintiff reported increased pain, and exhibited increased pain with extension
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of the spine. Id. at 342. Dr. Melfi noted plaintiff’s “satisfactory” responses to facet blocks,
and authorized plaintiff to begin radiofrequency treatment. Id. Plaintiff received
radiofrequency treatment on July 6 and July 16, 2012. Id. at 345-46.
On September 19, 2012, plaintiff reported “80% relief” of back pain, but reported
“electrical sensation” in his back and right buttock occasionally, along with constant low
back pain. T. 350. Dr. Melfi noted that plaintiff had responded well to radiofrequency
treatment, but still experienced intermittent radicular symptoms, and therefore opined that
he was under a mild to moderate disability. Id. On October 17, 2012, plaintiff reported
worsening back pain, and Dr. Melfi noted that a September 26, 2012 MRI showed mild
degenerative disc disease at C3 through C7 along with a mild disc bulge at C3-4, C4-5, C56. Id. at 353. Dr. Melfi again opined that plaintiff had a partial mild to moderate disability.
Id.
On January 7, 2013, plaintiff reported worsening pain to Dr. Melfi. T. 370. He
described the pain as an eight out of ten, and stated that the pain was “stabbing, burning,
achy, deep, dull radiating down both legs all the way down to the feet.” Id. at 372. The pain
was exacerbated when he picked up an eight-pack of soda. Id. Dr. Melfi noted tenderness
on L4 through S1 bilaterally, left-sided. Id. A slump test was positive on the left, and a
Hoffman’s sign was positive bilaterally. Id. Dr. Melfi noted an “exacerbation of [plaintiff’s]
left radicular symptoms.” Id. On January 10, 2013, Dr. Melfi indicated that she did not feel
that plaintiff could lift up to twenty pounds as she had previously indicated in December
2012. Id. at 370.
On March 14, 2013, Dr. Melfi noted that plaintiff had 80% relief of his radicular
symptoms after injections, but continued to have pain across his lower back. T. 367.
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Plaintiff described the pain as “constant, sharp, burning, stabbing, shooting, achy, [and]
deep with associated numbness and tingling, intermittent electrical sensation[.]” Id. Plaintiff
told Dr. Melfi on this date that he did not participate in an updated f unctional capacity exam
because he did not want to pay for the exam. Id. Plaintiff further reported that he was
planning on exploring his surgical options with Dr. DiStefano. Id.
On May 6, 2013, plaintiff was seen by Dr. Melfi, who noted that plaintiff still
experienced “significant back pain” although his radicular symptoms continued to be
reduced by the injections he received. T. 365. He also continued to experience muscle
spasms. Id. Given plaintiff’s satisfactory response to facet blocks, Dr. Melfi recommended
that he have another round of radiofrequency treatment. Id.
On October 11, 2013, plaintiff reported constant back pain. T. 424. He also stated
that he was not interested in surgery. Id. Dr. Melfi reviewed a functional capacity exam2
and noted that the functional capacity exam indicated that plaintiff could perform sedentary
work, “but there is notation regarding self-limiting behaviors, general deconditioning and
lack of endurance.” Id. On January 21, 2014, plaintiff reported that his symptoms were
worsening, and that the pain extended to his bilateral buttocks and bilateral posterior lower
extremities. Id. at 422. He felt like he needed injections again. Id. Dr. Melfi noted that
plaintiff presented with “stenosis and/or radicular pain.” Id. She scheduled plaintif f for more
injections, but noted that future injections would be canceled if he did not feel relief. Id.

2

The ALJ focuses greatly on Dr. Melfi’s notations regarding whether plaintiff received an updated
functional capacity exam. See T. 20. The Court notes that it is not apparent from Dr. Melfi’s medical records
which functional capacity exam she is referring to in these notations, and the Court will not endeavor to
assume which functional capacity exam Dr. Melfi is referring to, or whether the results are present in the
record.

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Despite Dr. Melfi’s numerous medical records indicating plaintiff’s worsening
condition, the ALJ focused on one statement that Dr. Melfi made in December 2012
regarding plaintiff’s work abilities. T. 21. Further, instead of discussing medical evidence in
the record, the ALJ was inexplicably focused on whether or not plaintiff received a separate
functional capacity examination, and whether or not that functional capacity examination
was in the record. Id. The ALJ found that Dr. Melfi’s opinion was not supported by the
medical records, despite plaintiff’s MRI results that show degenerative disc disease, and his
frequent complaints of intense back pain, and radicular symptoms. T. 353, 365, 422, 424.
Although the ALJ found support for her RFC assessment in Dr. Melfi’s statement that
plaintiff could lift twenty pounds, and sit or stand for 2.5 to 5.5. hours during an eight-hour
workday, the ALJ did not address the records indicating that plaintiff’s condition was
worsening and becoming increasingly more painful from December 2012 to January 2014.
See T. 21, 374, 422. As such, the ALJ was under a duty to investigate the possible
deterioration of plaintiff’s condition. See Balodis v. Leavitt, 704 F. Supp. 2d 255, 267
(E.D.N.Y. 2010) (finding error where the ALJ failed to analyze “whether plaintiff’s condition
deteriorated in the substantial time period between doctors’ opinions[.]”).
Furthermore, the Court finds that the ALJ did not sufficiently state the reasons for
affording little evidentiary weight to Dr. Melfi’s assessment. The Second Circuit has stated
that it does “not hesitate to remand when the Commissioner has not provided ‘good
reasons’ for the weight given to a treating physician’s opinion and [it] will continue
remanding when [it] encounter[s] opinions from ALJs that do not comprehensively set forth
reasons for the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 32.
Here, the ALJ found that Dr. Melfi’s opinion as to plaintiff’s need to sit and stand at will was
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not supported by the record. T. 21. The ALJ also found that Dr. Melfi’s limitation on
plaintiff’s turning of the head was not supported by the record because cervical findings
were minimal. Id. In addition, the ALJ found that Dr. Melfi’s opinion that plaintiff would be
absent from work for four days per month was speculative, and that it could not be known
whether the assessed limitations were based on plaintiff’s own reporting of his symptoms.
Id. Given the medical evidence of records regarding plaintiff’s lumbar spine pain, and the
ALJ’s perceived gap in the record as to what Dr. Melfi based her opinion on, the ALJ should
have sought out clarifying information from Dr. Melfi. Snyder v. Colvin, No. 13-CV-6644T,
2015 WL 3407956, at *5 (W.D.N.Y. May 27, 2015) (finding that an ALJ is obligated to seek
out further information where there are contradictions or inconsistencies, or obvious gaps in
the administrative record) (citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)). Thus,
the Court finds that the ALJ failed to set forth good reasons for assigning less than
controlling weight to Dr. Melfi’s opinion.
Accordingly, this matter is remanded, and the ALJ is directed seek out clarifying
information as to perceived gaps in the administrative record. On remand, the ALJ should
set forth good reasons for the weight given to Dr. Melfi’s opinion.

ii. The ALJ’s Assessment of Caryn Lindsay, P.T.’s September 20, 2012 Opinion
The ALJ did “not assign[] any weight” to Lindsay’s assessment. T. 19. The ALJ
stated that Lindsay, a physical therapist, was not a recognized medical source. Id. The
ALJ also noted that Lindsay’s opinion was not supported by the medical evidence. Id.
The Social Security regulations state that evidence from sources other than
“acceptable medical sources” may be used as evidence “to show the severity of [the
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claimant’s] impairment(s) and how it affects [his or her] ability to work.” 20 C.F.R. §
416.913(d). Because Lindsay is not an “acceptable medical source” under the regulations,
the ALJ was not required to afford the same deference to Lindsay’s opinion as she would a
treating physician. Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008).
Upon remand, if determined to be necessary, the ALJ will reassess Lindsay’s opinion
in light of the evidence as a whole.

iii. The ALJ’s Assessment of the Disability Determination of the Department of
Veterans Affairs (“VA”)
Plaintiff argues that the ALJ erred by not assigning any weight to plaintiff’s VA
disability rating. Dkt. No. 11 at 11-12. Defendant argues that the ALJ considered and
properly assigned no weight to the VA disability determination. Dkt. No. 12 at 8-9. As
defendant concedes that “the adjudicator should explain the consideration given to these
decisions in the notice of decision for hearing cases and in the case record for initial and
reconsideration cases[,]” the Court directs the ALJ to assess the VA disability determination
in light of the evidence as a whole upon remand.

3. Remaining Contentions
Plaintiff contends that the ALJ erred in assessing his credibility, and in finding that
defendant met her burden at step five of the sequential evaluation. Dkt. No. 11 at 19-24.
Because plaintiff’s remaining contentions may be impacted by the subsequent proceedings
directed by this Order, the undersigned declines to consider them at this juncture.

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III. Conclusion
Having reviewed the administrative transcript and the ALJ’s findings, the Court
concludes that the ALJ’s determination is not supported by substantial evidence. Remand
for further administrative action consistent with this Memorandum-Decision and Order is
needed. Accordingly, it is hereby
ORDERED that plaintiff’s motion for judgment on the pleadings is GRANTED (Dkt.
No. 11). The matter is remanded to the Commissioner for additional proceedings
consistent with the above, pursuant to sentence four of 42 U.S.C. 405(g); and it is further
ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No.
12) is DENIED; and it is further
ORDERED that the Clerk of the Court serve copies of the Memorandum Decision
and Order on the parties in accordance with Local Rules.
IT IS SO ORDERED.

Dated:

March 27, 2017
Albany, New York

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