Ryan v. Astrue

Filing 25

OPINION AND ORDER re: 20 CROSS MOTION for Judgment on the Pleadings filed by Michael J. Astrue, 22 MOTION for Judgment on the Pleadings filed by Vincent Ryan: For all the foregoing reasons, plaintiff's motion for judgment on the pleadings in granted (Docket Item 22) and the Commissioner's cross motion is denied (Docket Item 20). The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Clerk of the Court is directed to close the case. (Signed by Magistrate Judge Henry B. Pitman on 3/18/2014) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
VINCENT RYAN,

:
Plaintiff,

MICHAEL ASTRUE,

12 Civ. 8075 (HBP)

:

-against-

:

OPINION AND
ORDER

:
Defendant.

:

-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff, Vincent Ryan, brings this action pursuant to
section 205(g) of the Social Security Act (the "Act"), 42 U.S.C.
§ 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security ("Commissioner") denying his
application for disability insurance benefits ("DIB").

Plaintiff

and the Commissioner have both moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 20 & 22).

The parties have consented to my

exercising plenary jurisdiction in this matter pursuant to 28
U.S.C. § 636(c).
For the reasons set forth below, plaintiff's motion for
judgment on the pleadings is granted and the case is remanded to

the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings consistent with this opinion.

II.

Facts

A.

Procedural Background

Plaintiff filed an application for DIB on June 3, 2009
(Tr.1 80-88).

He alleges that from October 20, 2008, he has

suffered from several conditions that have rendered him unable to
work.

Plaintiff states that these conditions are (1) tears in

the anterior cruciate ligament ("ACL") and the medial and lateral
collateral ligaments of his right knee, (2) effusion in the
joints,2 (3) posterior disk herniation at the L5-S1 level, 3 (4) a
broad posterior disk bulge and (5) diffuse superficial tenderness
in the spine (Tr. 93).
After the Commissioner denied plaintiff's claim on
August 3, 2009, plaintiff requested and was granted a hearing

1

"Tr." refers to the administrative record that the
Commissioner filed with its answer, pursuant to 42 U.S.C. §
405(g) (See Notice of Filing of Administrative Record, dated May
31, 2012, (Docket Item 13)).
2

Joint effusion is the escape of fluid into a joint.
Dorland's Illustrated Medical Dictionary, ("Dorland's") at 532
(27th ed. 1998).
3

Disk herniation is a "protrusion of the nucleus pulposus of
annulus fibrosus of the disk, which may impinge on the nerve
roots." Dorland's at 758.
2

before an Administrative Law Judge ("ALJ"); the hearing was held
on March 9, 2011 (Tr. 31, 42, 53).

In a decision dated March 25,

2011, the reviewing ALJ, Michael Friedman, determined that
plaintiff was not disabled (Tr. 15-28).

The ALJ's determination

became the Commissioner's final decision on September 13, 2012,
when the Appeals Council denied plaintiff's request for review
(Tr. 1-6).
Plaintiff commenced this action on November 6, 2012.
Plaintiff and the Commissioner filed their cross-motions for
judgment on the pleadings on October 30, 2013 and January 28,
2014 respectively (Docket Items 20 and 22).

B.

The Medical Record

Plaintiff was born on February 25, 1965 (Tr. 80).

He

earned a general education degree in 1993 and attended a trade
school from 1995 to 1996 (Tr. 100).
has a daughter (Tr. 103).

Plaintiff is unmarried but

When he filed his application, plain-

tiff lived in an apartment with a friend, Kwana Valdes, and her
three children (Tr. 102).
According to a disability report submitted by plaintiff
in connection with his application for DIB and his testimony
before the ALJ, he cannot stand or sit for more than 15 to 20
minutes and has difficulty turning his neck, bending, carrying
3

more than 5 pounds and walking up and down inclines (Tr. 34-36,
93).

Plaintiff also alleges that he suffers from constant pain

in his right knee (Tr. 93).

With respect to daily activities,

plaintiff alleges that he reads occasionally, but cannot cook,
clean, shop, or do laundry because of radiating pain in his neck
and back (Tr. 35, 106).

Additionally, he has difficulty dressing

himself, bathing and using the toilet (Tr. 36, 103-04).

Finally,

plaintiff alleges that he cannot walk more than one block and
requires a cane (Tr. 35).
According to the disability report, plaintiff worked
for the eight years preceding his onset date as a youth division
aide at a juvenile detention facility.

Plaintiff wrote that his

job entailed interacting with juvenile offenders, including
guarding inmates, resolving conflicts and teaching sex education
courses (Tr. 94).

Plaintiff also wrote that prior to holding

that position, he worked for seven years as an inventory manager
at a department store (Tr. 94).
The medical evidence in the record dates from February
2007, when plaintiff resumed physical therapy at Harlem Hospital
Center ("Harlem Hospital") for several injuries he had suffered
in an automobile accident (Tr. 152).

Plaintiff was examined by

an attending physician, Dr. Iluminado C. Nebab, who wrote that
plaintiff was experiencing pain in his neck and pain and dimin4

ished range of motion in his left shoulder (Tr. 152-53).

Dr.

Nebab prescribed physical therapy, which plaintiff attended on a
biweekly basis from early 2007 until May 2008 (Tr. 147-48, 151,
230, 232, 234, 245-46, 251, 253-54, 257, 259, 260, 274).

Notes

from several of these visits reflect that plaintiff exhibited
diminished range of motion, muscle weakness and pain in both his
shoulder and neck (Tr. 147-49).

The notes also reflect that,

during most sessions, plaintiff could tolerate his course of
treatment, which included electrical stimulation, therapeutic
exercises, stretching and the application of hot and cold packs
(See, e.g., Tr. 230, 232, 234).
On May 14, 2007, plaintiff sought treatment at Harlem
Hospital for injuries to his left shoulder and right knee as a
result of an altercation with a detainee.

The notes from that

visit indicate that plaintiff suffered from pain and
"suprapatellar joint effusion" in his right knee and left shoulder, but no evidence of fractures or dislocations (Tr. 134-35).
In early 2007, plaintiff sought treatment from Dr. Dina
Nelson, a physician, and Dr. Jeffrey Cohen, an orthopedic specialist, due to what plaintiff described as "erratic and insufficient" treatment at Harlem Hospital (Tr. 240).

Dr. Nelson

examined plaintiff on February 7, 2008 (Tr. 240-41).

At that

time, plaintiff complained of pain in his right knee when he
5

would walk or climb stairs and of occasional buckling and clicking (Tr. 240).

Plaintiff also reported radiating pain in his

neck and lower back (Tr. 240).

Dr. Nelson's examination of

plaintiff revealed moderate restriction in the lateral rotation
and lateral flexion in plaintiff's cervical spine as well as a
spasm in the right upper trapezius muscle (Tr. 241).

Dr. Nelson

also observed tenderness and a markedly decreased range of motion
in flexion and extension of the lumbar spine (Tr. 241).

With

respect to plaintiff's lower extremities, plaintiff displayed
stable balance and could walk without a cane, but that his right
knee was tender and tested positive in a McMurray test 4 (Tr.
241).

Dr. Nelson diagnosed plaintiff with right knee joint pain

but with possible "internal derangement," and a sprain or strain
in both the cervical and lumbar spine (Tr. 241).

She prescribed

biweekly physical therapy and referred plaintiff to an orthopedist (Tr. 241).
Dr. Cohen conducted a physical examination of plaintiff
on February 15, 2008 and issued a report of his findings (Tr.
137-39).

He wrote that plaintiff exhibited "impaired ambulation

up from a seated position" and found that plaintiff's right knee

4

A positive test indicates injury to the meniscus.
Rodriguez v. Astrue, No. 12–CV–4103, 2013 WL 1282363 at *7 n.45
(E.D.N.Y. Mar. 28, 2013).
6

exhibited effusions in the joints and a positive McMurray test
(Tr. 239).

Dr. Cohen also found that plaintiff's right shoulder

had diminished flexion, abduction and strength (Tr. 239).

The

report did not indicate any diagnosis or propose any course of
treatment.

A CT scan of plaintiff's lumbar spine taken on March

21, 2008, revealed that there were L4-L5 and L5-S1 disk
herniations with degenerative changes (Tr. 129).

An MRI of

plaintiff's right knee revealed partial tears of the ACL and
medial and lateral collateral ligaments and associated joint
effusion and degenerative changes (Tr. 128).

Dr. Cohen's notes

from May 2, 2008 indicate that he prescribed plaintiff a patch to
alleviate the pain in his back and recommended that plaintiff
undergo arthroscopic knee surgery on his right knee; plaintiff
had the surgery on October 21, 2008 (Tr. 159, 276).

Plaintiff

testified that he returned to work thereafter, but re-injured his
knee when it buckled unexpectedly and has not worked since (Tr.
32).
Sometime after plaintiff's October 2008 arthroscopic
surgery, Dr. Nelson referred him to Dr. Brian Haftel for pain
management.

In a January 12, 2009 report, Dr. Haftel wrote that

plaintiff described the pain in his lower back as "sharp,"
"achy," "burning" and "constant" (Tr. 158).

Plaintiff also

reported pain in his neck that worsened with physical activity
7

(Tr. 158).

Plaintiff described his average daily pain as a 10 on

the visual analog scale5 ("VAS") (Tr. 159).

Dr. Haftel wrote

that plaintiff walked with an antalgic gait and had difficulty
rising from a seated position (Tr. 160).

He observed tenderness,

spasms, diminished range of motion and pain on rotation in
plaintiff's cervical spine (Tr. 160).

Dr. Haftel also observed

tenderness, spasms, diminished range of motion and pain upon
extension in plaintiff's lumbar spine (Tr. 160).

He diagnosed

plaintiff with lumbar L4-L5 and L5-S1 disk herniations, cervical
degenerative disk disease and lumbar radiculopathy 6 (Tr. 160).
After noting that plaintiff refused to take epidural steroid
injections, he prescribed pain medication, Arthrotec and Soma,
continued physical therapy and orthopedic treatment (Tr. 160).
Dr. Haftel conducted a follow-up examination on February 18, 2009 (Tr. 156-57).

He noted that plaintiff still de-

scribed his average daily pain as a 10 on the VAS scale and that
the medications prescribed afforded minimal relief for the pain

5

"Visual analog scales (VAS) are often used in epidemiologic
and clinical research to measure the intensity or frequency of
various symptoms, particularly pain. They are generally
completed by patients . . ." Agnes Paul Dauphin, et al., Bias
and Precision in Visual Analog Scales: A Randomized Controlled
Trial, 150 Am. J. of Epidemiology 1117, 1117 (1999), available
at http://aje.oxfordjournals.org/content/150/10/1117.full.pdf.
6

Radiculopathy is a "disease of the nerve roots."
at 1405.
8

Dorland's

in plaintiff's lower back and right knee (Tr. 156).

Dr. Haftel

prescribed new medications, Tramadol and Voltaren gel, and
recommended that plaintiff avoid strenuous activity and heavy
lifting (Tr. 157).
Plaintiff returned for a consultation with Dr. Nelson
on March 4, 2009 (Tr. 125-26).

Dr. Nelson indicated the ineffec-

tiveness of plaintiff's medication regimen -- Arthrotec, Soma,
Lidoderm patches, and Neurontin –- in relieving the radiating
pain in his right knee, neck and right shoulder (Tr. 125).

She

reconfirmed the range of motion limitations and diminished
strength in plaintiff's cervical spine, lumbar spine and right
knee as well as plaintiff's diagnoses (Tr. 125).

She recommended

that plaintiff discontinue therapy for his lumbar spine, citing
ineffectiveness, that plaintiff speak with Dr. Cohen regarding
further treatment of his right knee and that plaintiff discuss
trigger point injections with Dr. Haftel (Tr. 125-26).

Dr.

Nelson expressed the opinion that plaintiff was "totally disabled
as a youth division aide" (Tr. 126).
Later that month, Dr. Kenneth Palmer, an orthopedic
surgeon, examined plaintiff in connection with plaintiff's
worker's compensation claim arising out of the May 2007 accident 7

7

The first page of Dr. Palmer's 2009 report is omitted.
9

(Tr. 130-31).

Dr. Palmer found limited range of motion in

plaintiff's shoulders and knees, but no tenderness, atrophy or
muscle weakness (Tr. 130).

He diagnosed a cervical and lumbar

sprain and right knee derangement and prescribed biweekly physical therapy (Tr. 130-31).

Dr. Palmer concluded that plaintiff

suffered from a "temporary mild disability" due to his right knee
injury, but could return to work if he could avoid bending and
lifting more than 30 pounds (Tr. 131).
On May 15, 2009, Dr. Haftel reexamined plaintiff and
completed another report (Tr. 155).

He wrote that the Tramadol

and Voltaren gel were somewhat effective in alleviating plaintiff's pain and that plaintiff still refused epidural steroid
injections (Tr. 155).

Plaintiff reported intermittent back pain

and confirmed that his average daily pain level was still a 10 on
the VAS scale (Tr. 155).

Dr. Haftel reconfirmed the diagnoses

and course of treatment he gave in February 2009 (Tr. 155).
That same month, plaintiff was admitted to Harlem
Hospital for an unrelated medical condition.

The examining

physician noted that plaintiff's motor strength, reflexes and
gait were all normal (Tr. 136).
On July 20, 2009, following plaintiff's application for
DIB, the state Division of Disability Determinations sent him for
an evaluation with a physician, Dr. Brian Hamway (Tr. 162-67).
10

Plaintiff told Dr. Hamway that he suffered from right-sided neck
pain, right-side back pain and right knee pain, which had been
aggravated by three injections in his right knee that were
intended to provide pain relief (Tr. 162).

Dr. Hamway noted that

plaintiff was prescribed the use of a cane, walked with a severely antalgic gait and that plaintiff, citing pain, declined to
perform several exercises (Tr. 164).

After conducting a physical

examination that revealed severe range of motion restrictions and
diminished strength in plaintiff's cervical spine and right knee
but observing plaintiff exhibit greater range of motion and
strength in his spontaneous movements, Dr. Hamway concluded that
plaintiff had exaggerated his symptoms during the examination
(Tr. 164-65).

Dr. Hamway noted that an x-ray of plaintiff's

spine was negative, but he did not view plaintiff's previous MRIs
or CT scans (Tr. 166).

Dr. Hamway diagnosed right knee pain,

neck pain and back pain that resulted in no physical limitations
(Tr. 166).

11

In July 2009, S. Putcha8 and M. Connelly, an orthopedic
surgeon, reviewed plaintiff's record and assessed his functional
capabilities (Tr. 170-75, 180-81).

With respect to plaintiff's

exertional limitations, Putcha determined that plaintiff could
occasionally lift and carry 10 pounds, frequently lift and carry
less than 10 pounds, stand or walk for about 2 hours in an 8-hour
workday and sit for about 6 hours in an 8-hour workday (Tr. 171).
Putcha also determined that plaintiff suffered from exertional
limitations only (Tr. 172-73).

Dr. Connelly concluded that

plaintiff could perform sedentary work (Tr. 180).
The record also contains several medical notes dated
after plaintiff's initial application for DIB was denied, but
before the ALJ issued his decision.
On January 10, 2011, Dr. Haftel, plaintiff's physician
for pain management, confirmed in a report that plaintiff was
attending physical therapy and that plaintiff described his pain
as a "9-10" on the VAS scale (Tr. 190).

After a physical exami-

nation, Dr. Haftel noted that plaintiff has diminished range of

8

The record does not indicate what credentials this
individual possesses. However, there is an orthopedic surgeon
licensed in New York named Suryanarayan Putcha. Search for a
Physician, N.Y. St. Dep't of Health Physician Profile, available
at
http://www.nydoctorprofile.com/dispatch?action=display_search_par
ameters (last visited Mar. 14, 2014). I presume this is the same
"S. Putcha" mentioned in the text.
12

motion in his cervical spine and paralumbar region and confirmed
his earlier diagnosis of lumbar and cervical disk herniations and
lumbar radiculopathy (Tr. 190-91).

He recommended that plaintiff

continue taking his medication –- Tramadol, Soma, Celebrex
(celecoxib), Nucynta (tapentadol), continue his physical therapy
and avoid prolonged standing, sitting or strenuous activity (Tr.
191).
On February 4, 2011, a physician, Dr. Lulenesh
Belayneh, completed a "follow-up evaluation" of plaintiff (Tr.
192-93).

Plaintiff reported to Dr. Belayneh that he suffered

from radiating pain in his neck, low back and right knee, the
severity of which was 9 out of 10 (Tr. 192).

Dr. Belayneh wrote

that plaintiff used a cane and ambulated with an antalgic gait.
Plaintiff's right knee tested positive in a McMurray test and
exhibited diminished range of motion.

Plaintiff's cervical and

lumbar spine exhibited diminished range of motion and decreased
muscle strength (Tr. 192).

Dr. Belayneh diagnosed ACL degenera-

tion and medial and collateral ligament tears, left knee meniscal
degeneration, lumbar and cervical radicular pain associated with
herniated discs at L5-S1 and C6-C7 (Tr. 192).

Dr. Belayneh

determined that plaintiff suffered from a "permanent disability
and impairment rating for [his] right knee" and "partial disabil-

13

ity" with respect to his impairments to the cervical and lumbar
spine (Tr. 193).
At the request of plaintiff's attorney, Dr. Belayneh
completed a "Multiple Impairments Questionnaire," in which she
confirmed the results and diagnoses from her physical examination
ten days earlier.

In addition, with respect to plaintiff's

exertional limitations, Dr. Belayneh determined that he could
only sit for 3 hours and stand/walk for 2 hours in an 8-hour
workday, could not sit or stand for more than 15 to 30 minutes at
a time and could only carry/lift up to 10 pounds occasionally
(Tr. 185).

Dr. Belayneh assessed plaintiff as moderately limited

in his ability to grasp and reach and minimally limited in his
ability to manipulate objects (Tr. 186-87).

Finally, Dr.

Belayneh concluded that plaintiff's impairments would likely
cause him to miss work more than three times each month (Tr.
188).
On February 11, 2011, Dr. Cohen wrote that plaintiff's
active range of motion in his right knee was "-3 to 100" out of a
normal range of "0 to 140" and that plaintiff's symptoms affected
his daily activities (Tr. 194).

He concluded that plaintiff's

"disability [was] total" (Tr. 194).

14

III.

Analysis

A.

Applicable Legal
Principles

1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.

42 U.S.C.

§ 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008);
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999); Bubnis v. Apfel, 150
F.3d 177, 181 (2d Cir. 1998).
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.

Tejada v. Apfel, supra, 167 F.3d at

773-74; Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987);
Ellington v. Astrue, 641 F. Supp. 2d 322, 327-28 (S.D.N.Y. 2009)
(Marrero, D.J.).

"Even if the Commissioner's decision is sup-

ported by substantial evidence, legal error alone can be enough
to overturn the ALJ's decision."

Ellington v. Astrue, supra, 641

F. Supp. 2d at 328; accord Johnson v. Bowen, supra, 817 F.2d at
986.

However, "where application of the correct legal principles
15

to the record could lead to only one conclusion, there is no need
to require agency reconsideration."

Johnson v. Bowen, supra, 817

F.2d at 986.
"'Substantial evidence' is 'more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.'"

Talavera v. Astrue, 697

F.3d 145, 151 (2d Cir. 2012), quoting Richardson v. Perales, 402
U.S. 389, 401 (1971).

"Consequently, where [there is] substan-

tial evidence . . . this Court may not substitute its own judgment as to the facts, even if a different result could have been
justifiably reached upon de novo review."

Beres v. Chater, 93

Civ. 5279 (JG), 1996 WL 1088924 at *5 (E.D.N.Y. May 22, 1996);
see also Valente v. Sec'y of Health & Human Servs., 733 F.2d
1037, 1041 (2d Cir. 1984).

Thus, "'[t]o determine on appeal

whether an ALJ's findings are supported by substantial evidence,
a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from
its weight.'"

Terwilliger v. Comm'r of Soc. Sec., No.

3:06-CV-0149 (FJS/GHL), 2009 WL 2611267 at *2 (N.D.N.Y. Aug. 24,
2009), citing Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.
1988).

16

2.

Determination of
Disability

A claimant is entitled to DIB benefits if he or she can
establish an "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."
42 U.S.C. § 423(d)(1)(A); see also Barnhart v. Walton, 535 U.S.
212, 217-22 (2002) (both impairment and inability to work must
last twelve months).9

The impairment must be demonstrated by

"medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and it must be
of such severity that [the claimant] is not only unable
to do his previous work but cannot, considering [the
claimant's] age, education, and work experience, engage
in any other kind of substantial gainful work which
exists in the national economy, regardless of whether
such work exists in the immediate area in which [the
claimant] lives, or whether a specific job vacancy
exists for [the claimant], or whether [the claimant]
would be hired if [the claimant] applied for work.
42 U.S.C. § 423(d)(2)(A).

9

The standards that must be met to receive Supplemental
Security Income benefits under Title XVI of the Act are the same
as the standards that must be met in order to receive DIB under
Title II of the Act. Barnhart v. Thomas, 540 U.S. 20, 24 (2003).
Accordingly, cases addressing the latter are equally applicable
to cases involving the former.
17

The Commissioner must consider both objective and
subjective factors when assessing a disability claim, including:
(1) objective medical facts and clinical findings; (2) diagnoses
and medical opinions of examining physicians; (3) subjective
evidence of pain and disability to which the claimant and family
or others testify; and (4) the claimant's educational background,
age and work experience.

Brown v. Apfel, 174 F.3d 59, 62 (2d

Cir. 1999); DiPalma v. Colvin, 951 F. Supp. 2d 555, 565 (S.D.N.Y.
2013) (Peck, M.J.).
"In evaluating disability claims, the [Commissioner] is
required to use a five-step sequence, promulgated in 20 C.F.R.
§§ 404.1520, 416.920."

Bush v. Shalala, 94 F.3d 40, 44 (2d Cir.

1996).
First, the Commissioner considers whether the claimant
is currently engaged in substantial gainful activity.
Where . . . the claimant is not so engaged, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits his physical
or mental ability to do basic work activities . . . .
Where the claimant does suffer a severe impairment, the
third inquiry is whether, based solely on medical
evidence, he has an impairment listed in Appendix 1 of
the regulations or equal to an impairment listed there
. . . . If a claimant has a listed impairment, the
Commissioner considers him disabled. Where a claimant
does not have a listed impairment, the fourth inquiry
is whether, despite his severe impairment, the claimant
has the residual functional capacity to perform his
past work . . . . Finally, where the claimant is unable
to perform his past work, the Commissioner then determines whether there is other work which the claimant
could perform.
18

Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); see also
Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Butts v. Barnhart,
388 F.3d 377, 383 (2d Cir. 2004), amended in part on other
grounds on rehearing, 416 F.3d 101 (2d Cir. 2005); Green-Younger
v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
Step four requires that the ALJ make a determination as
to the claimant's residual functional capacity.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

See Rosa v.

RFC is defined in the

applicable regulations as "the most [the claimant] can still do
despite [his] limitations."

20 C.F.R. § 404.1545(a)(1).

To

determine RFC, the ALJ makes a "function by function assessment
of the claimant's ability to sit, stand, walk, lift, carry, push,
pull, reach, handle, stoop, or crouch . . . ."

Sobolewski v.

Apfel, 985 F. Supp. 300, 308-09 (E.D.N.Y. 1997).

The results of

this assessment determine the claimant's ability to perform the
exertional demands of sustained work, and may be categorized as
sedentary, 10 light, medium, heavy, or very heavy.

10

20 C.F.R.

Sedentary work generally involves up to two hours of
standing or walking and six hours of sitting in an eight-hour
workday. Social Security Ruling 96-9p, Titles II and XVI:
Determining Capability to Do Other Work—Implications of a
Residual Functional Capacity for Less than a Full Range of
Sedentary Work ("Ruling 96–9p"), 1996 WL 374185 at *3 (1996); see
20 C.F.R. § 404.1567(a). Sedentary work also involves "lifting
no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools."
(continued...)
19

§ 404.1567; see Rodriguez v. Apfel, 96 Civ. 8330 (JGK), 1998 WL
150981 at *7 n.7 (S.D.N.Y. Mar. 31, 1998) (Koeltl, D.J.).
The claimant bears the initial burden of proving
disability with respect to the first four steps.

Burgess v.

Astrue, supra, 537 F.3d at 128; Green-Younger v. Barnhart, supra,
335 F.3d at 106; Balsamo v. Chater, supra, 142 F.3d at 80.

Once

the claimant has satisfied this burden, the burden shifts to the
Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than the claimant's past work.

Butts v. Barnhart, supra, 388 F.3d at 383;

Balsamo v. Chater, supra, 142 F.3d at 80.
In meeting [his] burden of proof on the fifth step of
the sequential evaluation process described above, the
Commissioner, under appropriate circumstances, may rely
on the medical-vocational guidelines contained in 20
C.F.R. Part 404, Subpart P, App. 2, commonly referred
to as "the Grid." The Grid takes into account the
claimant's RFC in conjunction with the claimant's age,
education and work experience. Based on these factors,
the Grid indicates whether the claimant can engage in
any other substantial gainful work which exists in the
national economy.
Gray v. Chater, 903 F. Supp. 293, 297-98 (N.D.N.Y. 1995) (Koeltl,
D.J.).

When a claimant retains the RFC to perform at least one

of the categories of work listed on the Grid, and when the
claimant's educational background and other characteristics are

10

(...continued)
20 C.F.R. § 404.1567(a).
20

also captured by the Grid, the ALJ may rely exclusively on the
Grid in order to determine whether the claimant retains the RFC
to perform some work other than his or her past work.

Butts v.

Barnhart, supra, 388 F.3d at 383 ("In the ordinary case, the
Commissioner meets his burden at the fifth step by resorting to
the applicable medical vocational guidelines (the [Grid]).")
(internal quotation marks and citation omitted).
However, "exclusive reliance on the [Grid] is inappropriate" where non-exertional limitations "significantly diminish
[a claimant's] ability to work."

Butts v. Barnhart, supra, 388

F.3d at 383 (internal quotation omitted); Bapp v. Bowen, 802 F.2d
601, 603 (2d Cir. 1986).

When a claimant suffers from a non-

exertional limitation such that he is "unable to perform the full
range of employment indicated by the [Grid]," Bapp v. Bowen,
supra, 802 F.2d at 603, or the Grid fails "to describe the full
extent of [the] claimant's physical limitations," Butts v.
Barnhart, supra, 388 F.3d at 383, the Commissioner must introduce
the testimony of a vocational expert in order to prove "that jobs
exist in the economy which the claimant can obtain and perform."
Butts v. Barnhart, supra, 388 F.3d at 383 (internal quotation
marks and citation omitted); see 20 C.F.R. §§ 404.1569a(d), Pt.
404, Subpt. P, App. 2, § 200.00(e); see also Heckler v. Campbell,
461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities
21

are not described accurately by a rule, the regulations make
clear that the individual's particular limitations must be
considered.").

3.

Treating Physician Rule

When considering the evidence in the record, the ALJ
must give deference to the opinions of a claimant's treating
physicians.

Under the regulations' "treating physician rule," a

treating physician's opinion will be given controlling weight if
it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in . . . [the] record."

20 C.F.R.

§ 404.1527(c)(2); Shaw v. Chater, supra, 221 F.3d at 134; Diaz v.
Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
Before an ALJ can give a treating physician's opinion
less than controlling weight, the ALJ must apply various factors
to determine the amount of weight the opinion should be given.
These factors include:

(1) the length of the treatment relation-

ship and the frequency of examination, (2) the nature and extent
of the treatment relationship, (3) the medical support for the
treating physician's opinion, (4) the consistency of the opinion
with the record as a whole, (5) the physician's level of special22

ization in the area and (6) other factors that tend to support or
contradict the opinion.

20 C.F.R. § 404.1527(c)(2)-(6); Schisler

v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue, 07 Civ.
285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept. 28, 2009)
(Rakoff, D.J.) (adopting Report & Recommendation of Freeman,
M.J.); Matovic v. Chater, 94 Civ. 2296 (LMM), 1996 WL 11791 at *4
(S.D.N.Y. Jan. 12. 1996) (McKenna, D.J.).

"[G]ood reasons" must

be given for declining to afford a treating physician's opinion
controlling weight.

20 C.F.R. § 404.1527(c)(2); Schisler v.

Sullivan, supra, 3 F.3d at 568; Burris v. Chater, 94 Civ. 8049
(SHS), 1996 WL 148345 at *6 n.3 (S.D.N.Y. Apr. 2, 1996) (Stein,
D.J.).

B.

The ALJ's
Decision

The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 20-28).
At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since his alleged onset
date of October 20, 2008 (Tr. 20).
At step two, the ALJ found that plaintiff suffered from
the following severe impairments:

(1) herniated discs in the

cervical spine with radiculopathy, (2) herniated discs in the

23

lumbar spine with radiculopathy, (3) tears in the ACL and medial
and lateral collateral ligaments of the right knee and (4)
hypertension 11 (Tr. 20).
At step three, the ALJ concluded that plaintiff's
alleged impairments, either singly or in combination, were not
medically equal to the impairments listed in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (Tr. 20).

Specifically, he found that plaintiff

did not meet the listings for musculoskeletal disorders or
cardiovascular disorders (Tr. 20).
The ALJ then determined that plaintiff retained the
residual functional capacity to perform the full range of sedentary work (Tr. 21).

In determining plaintiff's RFC, the ALJ

considered plaintiff's medical records and reports, his consultative examinations and his statements.
After summarizing the evidence contained in the medical
record, the ALJ found that the record corroborated that plaintiff
suffered from ligament tears in his right knee and disk
herniations with radiculopathy in his cervical and lumbar spine
(Tr. 21).

However, the ALJ found plaintiff's "statements con-

cerning the intensity, persistence and limiting effects of these

11

The ALJ's analysis of plaintiff's hypertension is
irrelevant to this appeal because plaintiff has never claimed
that his hypertension is disabling (Tr. 93).
24

symptoms were not credible to the extent that they were inconsistent wit the above residual functional capacity assessment" (Tr.
24).

Specifically, the ALJ discredited plaintiff's testimony

regarding the degree of his limitations due to pain because it
conflicted with findings from two examining physicians.

He also

discredited plaintiff's testimony because plaintiff (1) declined
epidural steroid injections and cervical fusion surgery and (2)
had taken his hypertension medication inconsistently (Tr. 24).
The ALJ then assessed what weight to give the opinion
evidence in the medical record.

He gave Dr. Palmer's opinion

regarding plaintiff's residual functional capacity "significant
weight" because it was supported by examination findings.

He

gave some weight to Dr. Cohen's opinion regarding the degree of
plaintiff's disability because Dr. Cohen operated on plaintiff's
knee.

However, he declined to afford both Dr. Palmer's and Dr.

Cohen's opinions controlling weight because they assessed plaintiff's degree of disability according to the standard set out by
the New York Worker's Compensation statute (Tr. 25).

He gave Dr.

Hamway's opinion that plaintiff had exaggerated his symptoms
"significant weight" because the ALJ found that (1) the symptoms
plaintiff exhibited during Dr. Hamway's examination were extreme
and so inconsistent with plaintiff's other examinations in 2009
and (2) the limitations plaintiff claimed to Dr. Hamway were
25

inconsistent with plaintiff's spontaneous actions (Tr. 25).

The

ALJ next gave the opinions of Dr. Belayneh as to the degree of
plaintiff's disability "limited weight" because (1) his opinions
were provided on a form supplied by plaintiff's attorney, (2) Dr.
Belayneh was an examining source not a treating source and his
opinion was not supported by any treatment notes and (3) and Dr.
Belayneh's opinions regarding plaintiff's RFC addressed an issue
reserved for the Commissioner (Tr. 25).

Finally, the ALJ gave

some weight to the state agency disability analyst's opinion that
plaintiff had the residual functional capacity to perform sedentary work because he found it to be supported by the majority of
the evidence in the record.
At step four, the ALJ concluded that plaintiff was
unable to perform the duties of his past work as a youth division
aide because it would require him to perform more than sedentary
work (Tr. 25).
At step five, the ALJ found that jobs existed in
significant numbers in the national economy that plaintiff could
perform, given his RFC, age and education (Tr. 25-26).

He found

that plaintiff was a "younger individual" and that he had the
equivalent of a high school education (Tr. 26).

The ALJ next

found that it was immaterial whether plaintiff's job skills were
transferrable to other employment (Tr. 26, citing Social Security
26

Ruling 82-41, Titles II & XVI:

Work Skills & Their Transferabil-

ity as Intended by the Expanded Vocational Factors, 1982 WL
31389; 20 C.F.R. Pt. 404, Subpt. P, App. 2).

Based on these

vocational factors and plaintiff's RFC, the ALJ applied MedicalVocational Rule 201.28, 20 C.F.R. Pt. 404, Subpt. P, App. 2, and
concluded that plaintiff was not disabled (Tr. 26).

C.

Analysis of the
ALJ's Decision

Plaintiff argues that the ALJ's decision should be
overturned on four grounds:

(1) the ALJ's assessment that

plaintiff did not meet the requirements of Listing 1.04 was
erroneous and not supported by substantial evidence, (2) the ALJ
violated the treating physician rule, (3) the ALJ erred in his
evaluation of plaintiff's credibility and (4) the ALJ failed to
request vocational expert testimony (see Plaintiff's Memorandum
of Law in Support of Motion for Judgment on the Pleadings, dated
Oct. 30, 2013, (Docket Item 23) ("Pl. Mem.") at 11–25).

1.

Listing Requirements

Plaintiff first argues that the ALJ erred when he
concluded that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the

27

listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1 because
(1) the ALJ did not provide any reasoning for the conclusion at
step three of the analysis and (2) the medical evidence reflects
that plaintiff's back impairments meet, or at least equal, the
requirements of Listing 1.04A and (3) the ALJ did not seek the
assistance of a medical advisor (Pl. Mem. at 13-14; Plaintiff's
Brief in Reply to Defendant's Memorandum of Law, dated Feb. 20,
2014, (Docket Item 24) ("Pl. Reply") at 1-3).

The Commissioner

responds that (1) the ALJ's finding was supported by substantial
evidence and (2) the ALJ was not obligated to obtain additional
medical evidence regarding whether plaintiff's limitations were
equivalent to the limitations set forth in Listing 1.04A (Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on
the Pleadings, dated Jan. 28, 2014, (Docket Item 21) ("Comm'r
Mem.") at 14-16).
Listing 1.04A, entitled "Disorders of the spine,"
provides, in relevant part:
Disorders of the spine (e.g., herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the
spinal cord. With:
A.
Evidence 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
28

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, § 1.04A.

It is the plain-

tiff's burden to "demonstrate that [his] disability [meets] 'all
of the specified medical criteria' of a spinal disorder."

Otts

v. Comm'r of Soc. Sec., 249 F. App'x 887, 888 (2d Cir. 2007),
quoting in part Sullivan v. Zebley, 493 U.S. 521, 531 (1990)
(emphasis in original) and citing Rosa v. Callahan, supra, 168
F.3d at 77.

"An impairment that manifests only some of those

criteria, no matter how severely, does not qualify." 12

Sullivan

v. Zebley, supra, 493 U.S. at 530 (citation omitted).
An ALJ's unexplained conclusion step 3 step three of
the analysis may be upheld where other portions of the decision
and other "clearly credible evidence" demonstrate that the
conclusion is supported by substantial evidence.

12

Berry v.

However, "[e]ven if a claimant's impairment does not meet
the specific criteria of a Medical Listing, it still may equal
the Listing." Valet v. Astrue, 10–CV–3282 (KAM), 2012 WL 194970
at *13 (E.D.N.Y. Jan. 23, 2012). Specifically, "[t]he
Commissioner will find that a claimant's impairment is medically
equivalent to a Medical Listing if: (1) the claimant has other
findings that are related to his or her impairment that are equal
in medical severity; (2) the claimant has a 'closely analogous'
impairment that is 'of equal medical significance to those of a
listed impairment;' or (3) the claimant has a combination of
impairments that are medically equivalent." Valet v. Astrue,
supra, 2012 WL 194970 at *13, citing § 404.1526(b)(1)-(3).
29

Schweiker, 675 F.2d 464, 469 (2d Cir. 1982); see also Salmini v.
Comm'r of Soc. Sec., 371 F. App'x 109, 112-13 (2d Cir. 2010);
Otts v. Comm'r of Soc. Sec., supra, 249 F. App'x at 889.

But

where the evidence on the issue of whether a claimant meets or
equals the listing requirements is equipoise and "credibility
determinations and inference drawing is required of the ALJ" to
form his conclusion at step 3, the ALJ must explain his reasoning.

Berry v. Schweiker, supra, 675 F.2d at 469; see also Norman

v. Astrue, 912 F. Supp. 2d 33, 81 (S.D.N.Y. 2012) (Castel, D.J.).
The ALJ's decision contains boilerplate language that
provides no meaningful explanation for his conclusion that
plaintiff did not meet Listing 1.04A (See Tr. 20).

Although the

ALJ did discuss the results of plaintiff's physical examinations,
he does not explain how those results related to Listing 1.04A.
Furthermore, the ALJ's analysis at other steps does not shed
light on his conclusion at step three.

Therefore, I shall

consider whether plaintiff has provided evidence that his impairments meet or equal the requirements of Listing 1.04A.

Of the

six requirements in Listing 1.04A, the Commissioner only takes
issue with plaintiff's claim that he suffered from (1) motor loss

30

and (2) sensory or reflex loss (Comm'r Mem. at 15; Pl. Reply at
2). 13
Listing 1.04A requires "motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss. . ."
App. 1, § 1.04A.

See 20 C.F.R. Pt. 404, Subpt. P,

With respect to motor loss, the treatment

records indicate that plaintiff did experience some muscle
weakness during the relevant time period.

For example, in

January 2009 Dr. Haftel noted that plaintiff "had difficulty
rising from a seated position" and in March 2009 Dr. Nelson noted
that plaintiff exhibited "weakness to resistence in quadriceps
and hamstrings" and "decreased resistence in [plaintiff's] ankle
dorsiflexion" (Tr. 125, 160).

In February 2011, Dr. Belayneh

13

There is evidence that plaintiff meets the four other
requirements of Listing 1.04A. As noted by plaintiff, with
respect to evidence of nerve root compression, the record
reflects diagnoses from plaintiff's treating sources of (1)
cervical and lumbar radiculopathy, which refers to a disease of
the nerve roots, and (2) disk herniations at L5-S1 and L4-L5
levels impinging on the thecal sac, which can cause nerve damage
and pain (See, e.g., Tr. 125, 129, 158-59, 192, 276). With
respect to evidence of neuro-anatomic distribution of pain, the
record contains abundant references to plaintiff's complaints of
pain and numbness during the relevant period (See, e.g., Tr. 125,
159, 192). With respect to evidence of limitation in the motion
of the spine, results from several examinations indicate that
plaintiff experienced tenderness, muscle spasms and restricted
range of motion in his right shoulder and his cervical and lumbar
spine (See, e.g., Tr. 125, 130, 160, 192). Finally, there is
evidence to support that plaintiff's straight-leg raising tests
were positive (See, e.g., Tr. 125, 160, 241).
31

found that plaintiff's muscle strength was 4/5 in his hip flexors
with pain, 4/5 in his right quad, and -5/5 in his left quad with
pain (Tr. 192).

Such evidence is not overwhelming, but it is

non-trivial evidence that plaintiff suffered from significant
motor loss.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §

1.00(E)(1) (noting that "significant motor loss" may be shown by
an "[i]nability to walk on the heels or toes, to squat, or to
arise from a squatting position.").

While the Commissioner is

correct that there is no evidence of muscle atrophy and conflicting evidence regarding plaintiff's motor functions during testing
(Comm'r Mem. at 15, citing Tr. 130, 136, 160, 165), it is the
obligation of the ALJ to explicitly reconcile this conflicting
evidence by evaluating whether plaintiff meets or medically
equals the requirements of listing 1.04A.
With respect to establishing sensory or reflex loss,
there is similarly conflicting evidence in the record.

Dr.

Haftel wrote in January 2009 that plaintiff's senses were "diminished in the right lower extremity at the L5 distribution" and
that plaintiff's reflexes were "diminished in both lower extremities of +1 out of 2 over the patella and Achilles tendons" (Tr.
160).

In 2011, Dr. Belayneh noted that plaintiff's "deep tendon

reflex [wa]s unelicitable" (Tr. 192).

Admittedly, there is

evidence, cited by the Commissioner, from other examinations
32

where no sensory or reflex loss was found (Tr. 130, 136, 165,
240), but again, this is a conflict the ALJ is required to
resolve in his decision.
Because there is evidence that plaintiff's impairments
meet each of the requirements for listing 1.04A, the ALJ must
provide an explanation of his reasoning as to why he believes the
requirements are not met and explain the credibility determinations and inferences he drew in reaching that conclusion.

See

Berry v. Schweiker, supra, 675 F.2d at 469; Norman v. Astrue,
supra, 912 F. Supp. 2d at 81 (collecting cases); Rivera v.
Astrue, No. 10 CV 4324 (RJD), 2012 WL 3614323 at *11-*12
(E.D.N.Y. Aug. 21, 2012).

Because the ALJ failed to address the

potential applicability of listing 1.04A to what appears to be
medical evidence that potentially meets the listing requirements,
I cannot conclude that there is "sufficient uncontradicted
evidence in the record to provide substantial evidence for the
conclusion that [p]laintiff failed to meet step three."

See Sava

v. Astrue, 06 Civ. 3386 (KMK)(GAY), 2010 WL 3219311 at *4
(S.D.N.Y. Aug. 10, 2010) (Karas, D.J.) (adopting Report & Recommendation of Yanthis, M.J.).

On remand, the ALJ should consider

whether plaintiff meets the requirements of Listing 1.04A, and,
if the ALJ adheres to his prior decision, he should explain his

33

reasoning for his ultimate determination with sufficient specificity to allow a reviewing court to evaluate that determination.

2.

Treating Physician Rule

Plaintiff next argues that the ALJ erred in evaluating
the opinions of Dr. Belayneh, one of plaintiff's purported
treating sources, because (1) the ALJ did not provide "good
reasons" for assigning Dr. Belayneh's opinions less than controlling weight and (2) the ALJ did not address the factors set forth
in 20 C.F.R. § 404.1527 in assessing what weight to give them
(Pl. Mem. at 14-18).

The Commissioner contends that (1) Dr.

Belayneh is not a treating physician, and (2) the ALJ gave valid
reasons for assigning Dr. Belayneh's opinions limited weight
(Comm'r Mem. at 15-18).
A physician who has examined a claimant on one or two
occasions is generally not considered a treating physician.

See

20 C.F.R. § 404.1502 ("We may consider an acceptable medical
source who has treated or evaluated you only a few times or only
after long intervals (e.g., twice a year) to be your treating
source if the nature and frequency of the treatment or evaluation
is typical for your condition(s)."); see also Shatraw v. Astrue,
No. 7:04-CV-0510 (NAM/RFT), 2008 WL 4517811 at *10 (N.D.N.Y.
Sept. 30, 2008) ("Doctors who see a patient only once do not have
34

a chance to develop an ongoing relationship with the patient, and
therefore are not generally considered treating physicians."),
citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) and
Schisler v. Bowen, 851 F.2d 43, 45 (2d Cir. 1988); accord Garcia
v. Barnhart, 01 Civ. 8300 (GEL), 2003 WL 68040 at *5 n.4
(S.D.N.Y. Jan. 7, 2003) (Lynch, D.J.).
In plaintiff's case, the record does not demonstrate
that Dr. Belayneh saw plaintiff more than two times.

Dr.

Belayneh completed a Multiple Impairments Questionnaire on
February 14, 2011, writing that she first examined plaintiff on
July 9, 2010 and that she most recently examined plaintiff on
February 4, 2011, but failed to state how frequently she saw
plaintiff (Tr. 183).

The only treatment record demonstrating Dr.

Belayneh's relationship with plaintiff is the February 4, 2011
evaluation referenced in the Medical Impairments Questionnaire
(Tr. 192-93).

Absent "clear evidence" that Dr. Belayneh's

relationship with plaintiff went beyond her evaluations in July
2010 and February 2011, the record does not corroborate that Dr.
Belayneh was one of plaintiff's treating sources.

Snell v.

Apfel, supra, 177 F.3d at 133.
Nevertheless, I conclude that the ALJ improperly
weighed Dr. Belayneh's opinion provided in the Medical Impairments Questionnaire.

The ALJ's decision stated:
35

Limited weight is given to the opinions of Dr. Belayneh
. . . in the Multiple Impairment[s] Questionnaire of
February 14, 2011, in Exhibit 8F, p.p. 2-8. The . . .
document was on a form from the claimant's representative and [is] therefore designed to support the claimant's case for benefits. Furthermore, there is no
evidence that Dr. Belayneh saw the claimant more than
once for Worker's Compensation purposes and is therefore likely an examining, but not a treating source.
There are no treatment notes from this physician to
support his opinions. Finally, Dr. Belayneh gives a
residual functional capacity assessment indicating that
the claimant could not sit for even six of eight hours
in a workday thus precluding even sedentary work,
however, the determination of residual functional
capacity is a matter reserved to the Commissioner of
Social Security.
(Tr. 25).
The ALJ's decision is problematic for several reasons.
First, the ALJ should not have discredited Dr. Belayneh's opinion
simply because it was written on a form supplied by plaintiff's
attorney.

"'[T]he mere fact that a medical report is provided at

the request of counsel or, more broadly, the purpose for which an
opinion is provided, is not a legitimate basis for evaluating the
reliability of a report.'"

Gunter v. Comm'r of Soc. Sec., 361

Fed. App'x 197, 199 n.2 (2d Cir. 2010), quoting Reddick v.
Chater, 157 F.3d 715, 726 (9th Cir. 1998); see Balodis v.
Leavitt, 704 F. Supp. 2d 255, 265-66 (E.D.N.Y. 2010).

Absent

evidence that questionnaire was so suggestive that it substantially altered Dr. Belayneh's answers, the ALJ's dismissal of the
opinion based on the form Dr. Belayneh used is no substitute for
36

a reasoned analysis of Dr. Belayneh's opinion on its merits (Tr.
192-93).
Second, the ALJ misrepresents Dr. Belayneh's treatment
relationship with plaintiff.

While it was appropriate for the

ALJ to identify Dr. Belayneh as an examining source based on
evidence in the record, he is incorrect that Dr. Belayneh saw
plaintiff only once and that there are no treatment notes supporting his opinion.

The record demonstrates that Dr. Belayneh

saw plaintiff in July 2010 and February 2011 and that there are
treatment notes from the latter examination which are consistent
with the opinion Dr. Belayneh provided in the Medical Impairments
Questionnaire (Tr. 183, 192-93).
Finally, the ALJ erred in discrediting Dr. Belayneh's
opinion because it opined on an issue reserved for the Commissioner.

While it is true that no deference need be given to the

conclusion that a claimant has a particular RFC, e.g., that a
claimant is limited to performing sedentary work, Knight v.
Astrue, No. 10 Civ. 5301 (BMC), 2011 WL 4073603 at *8 (E.D.N.Y.
Sept. 13, 2011), that fact "does not exempt [the ALJ] from [his]
obligation, under Schaal[ v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998)] and § 404.1527(d)(2), to explain why a . . . physician's
opinions are not being credited."
F.3d at 134.

Snell v. Apfel, supra, 177

Simply stating that the final determination of
37

plaintiff's RFC is reserved for the Commissioner is not a reason
for rejecting opinion evidence relevant to that determination.
See, e.g., Iani v. Barnhart, 403 F. Supp. 2d 239, 256 (W.D.N.Y.
2005); accord Payne v. Apfel, 97 Civ. 4684 (RPP), 1999 WL 92509
at *5 (S.D.N.Y. Feb. 18, 1999) (Patterson, D.J.).
Accordingly, the case should also be remanded because
the reasons cited by the ALJ for rejecting Dr. Belayneh's opinion
were flawed.

On remand the ALJ should assess Dr. Belayneh's

opinion -- as he should assess all opinions -- according to the
factors set forth in 20 C.F.R. § 404.1527.

Baldwin v. Astrue, 07

Civ. 6958 (RJH)(MHD), 2009 WL 4931363 at *25 (S.D.N.Y. Dec. 21,
2009) (Holwell, D.J.) (adopting Report & Recommendation of
Dolinger, M.J.); Ramirez v. Astrue, 08 Civ. 7609 (SAS), 2009 WL
2356259 at *5 (S.D.N.Y. July 29, 2009) (Scheindlin, D.J.).

3.

Plaintiff's
Credibility

Plaintiff next argues the ALJ erred in assessing
plaintiff's credibility regarding the intensity, persistence and
limiting effects of his pain because (1) the ALJ did not discuss
all the factors set forth in 20 C.F.R. § 404.1529 and (2) he
selectively cited to evidence tending to discredit plaintiff's
credibility while ignoring contrary relevant evidence (Pl. Mem.

38

at 19-23).

The Commissioner responds that the ALJ was not

required to address the factors set forth by 20 C.F.R. § 404.1529
and that the ALJ properly weighed the medical evidence in assessing plaintiff's credibility (Comm'r Mem. at 19-21).
Evidence of pain is an important element in the
adjudication of DIB and SSI claims, and must be thoroughly considered in calculating the RFC of a claimant.
See Lewis v. Apfel, 62 F. Supp. 2d 648, 657 (N.D.N.Y.
1999). "[S]ymptoms, including pain, will be determined
to diminish [a claimant's] capacity for basic work
activities to the extent that . . . [they] can reasonably be accepted as consistent with the objective
medical evidence and other evidence." 20 C.F.R. §
404.1529(c)(4). To that end, the Commissioner has
established a two-step inquiry to evaluate a claimant's
contentions of pain. See Social Security Ruling 96-P,
1996 WL 374186 (S.S.A.); 20 C.F.R. § 404.1529(c).
First, the ALJ must determine whether the claimant
suffers from a "medically determinable impairment[ ]
that could reasonably be expected to produce" the pain
alleged. 20 C.F.R. § 404.1529(c)(1); see SSR 96-P.
Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's
pain contentions are not substantiated by the objective
medical evidence, the ALJ must engage in a credibility
inquiry. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii);
Taylor v. Barnhart, 83 Fed.Appx. 347, 350-51 (2d Cir.
2003) (summary order).
Meadors v. Astrue, 370 F. App'x 179, 183-84 (2d Cir. 2010).
It is "within the discretion of the [Commissioner] to
evaluate the credibility of plaintiff's complaints and render an
independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology."
Gernavage v. Shalala, 882 F. Supp. 1413, 1419 (S.D.N.Y. 1995)
39

(Leisure, D.J.), accord Mimms v. Heckler, 750 F.2d 180, 186 (2d
Cir. 1984); Richardson v. Astrue, 09 Civ. 1841 (SAS), 2009 WL
4793994 at *6 n.97 (S.D.N.Y. Dec. 14, 2009) (Scheindlin, D.J.);
see Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d
588, 591 (2d Cir. 1984); Carroll v. Sec'y of Health & Human
Servs., 705 F.2d 638, 642 (2d Cir. 1983) ("It is the function of
the [Commissioner], not [the reviewing courts], to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.").
The ALJ relied on several observations in finding that
plaintiff's statements concerning his degree of pain were not
credible.

He credited Dr. Hamway's conclusion that plaintiff had

either exaggerated or feigned symptoms of pain during Dr.
Hamway's examination (Tr. 24).

Next, he inferred from plain-

tiff's refusal to undergo epidural steroid injections or cervical
fusion surgery that they were unnecessary and that plaintiff's
pain was tolerable (Tr. 24).

The ALJ then noted that an examin-

ing source in May 2009 found that plaintiff walked with a normal
gait and exhibited no abnormal neurological symptoms (Tr. 24).
Finally, the ALJ wrote that plaintiff took his hypertension
medication inconsistently (Tr. 24).

Based on these observations,

the ALJ concluded that "there is reason to doubt the claimant's

40

credibility as to the degree of his limitations due to pain" (Tr.
24).
In reaching this conclusion, the ALJ committed several
errors.

First, the ALJ discredited the degree of plaintiff's

pain symptoms because plaintiff declined to have epidural steroid
injections or to undergo a cervical fusion (Tr. 24).

With

respect to the cervical fusion, the ALJ's reasoning ignores that
plaintiff's stated reason for declining surgery was to wait until
he could afford it (Tr. 162-63).

The ALJ similarly ignored

evidence that plaintiff had received three injections before
meeting Dr. Hamway and that they had actually worsened plaintiff's pain (Tr. 163).

Additionally, the ALJ should have devel-

oped the record concerning the reasons why plaintiff declined
these treatments before inferring that plaintiff declined them
because he did not need them.

Smith v. Colvin, No. 11–CV–4802

(NGG), 2013 WL 6504789 at *13 (E.D.N.Y. Dec. 11, 2013).

Spinal

surgery carries with it very serious risks, such as paraplegia,
and an individual may forgo the surgery solely out of concern
regarding those risks.
Second, the ALJ discredited the degree of plaintiff's
pain because he found that plaintiff had not complied with his
hypertension regimen (Tr. 24).

This explanation ignores plain-

tiff's explanation that he did not purchase hypertension medica41

tion because he could not afford it (Tr. 163).

Additionally, it

is hard to fathom how plaintiff's failure to comply with his
treatment for hypertension -- an unrelated condition for which he
does not seek benefits -- bears on the credibility of his statements regarding the severity of his pain.
Third, while the ALJ highlighted the discrepancy
between the findings from plaintiff's examining physicians in
2009 and plaintiff's claimed limitations on his ability to walk,
he did not cite or discuss many of the factors he is required to
consider pursuant to Section 404.1529(c)(3)(i)-(vii) in assessing
claimant's statements regarding his pain.
ignored plaintiff's statements that:

For instance, the ALJ

(1) he could not cook,

clean, walk short distances, (2) he needed help to dress himself
or bathe, (3) he suffered from constant radiating pain in his
neck, back and down both legs, (4) he took various pain medications over three years to alleviate his symptoms, (5) he saw a
pain management specialist and a physical therapist to treat his
pain and (6) he alternated between sitting and standing every 15
to 20 minutes in order to soothe his pain (Tr. 34-36).

Although

the ALJ was not required to address every factor set forth in 20
C.F.R. § 404.1529(c)(3) before making a credibility determination, see Martin v. Astrue, 337 F. App'x 87, 90 (2d Cir. 2009)

42

(upholding decision addressing three factors), 14 here the ALJ
addressed one of the seven factors, and, as explained above, did
so incorrectly.

This is inadequate under the regulations.

Verdaguer v. Astrue, supra, 2013 WL 6426931 at *10-*11; Grace v.
Astrue, 11 Civ. 9162 (ALC)(MHD), 2013 WL 4010271 at *22 (S.D.N.Y.
July 31, 2013) (Carter, D.J.) (adopting Report & Recommendation
of Dolinger, M.J.); Silberman v. Astrue, 08 Civ. 03398
(RMB)(THK), 2009 WL 2902576 at *13 (S.D.N.Y. Aug. 14, 2009)
(Katz, M.J.) (Report & Recommendation), adopted at, 2009 WL
2778245 (S.D.N.Y. Sept. 1, 2009).
In addition, the ALJ did not consider plaintiff's
fifteen-year work history in assessing his credibility as required by Section 404.1529(c).

20 C.F.R. § 404.1529(c)(3) ("We

14

Notwithstanding the Circuit's decision in Martin, there
appears to be some dispute within this Circuit as to whether an
ALJ must address every factor in 20 C.F.R. § 404.1529(c) in
assessing a claimant's credibility. Compare Valet v. Astrue,
supra, 2012 WL 194970 at *22, and Johnson v. Astrue, 748 F. Supp.
2d 160, 173-74 (N.D.N.Y. 2010), with Verdaguer v. Astrue, 12 Civ
6858 (VB), 2013 WL 6426931 at *10-*11 (S.D.N.Y. Dec. 9, 2013)
(Briccetti, D.J.) (adopting Report & Recommendation of Davison,
M.J.), and Robins v. Astrue, No. CV–10–3281 (FB), 2011 WL 2446371
at *4-*5 (E.D.N.Y. July 15, 2011), and Sarchese v. Barnhart, No.
01–CV–2172 (JG), 2002 WL 1732802 at *9 (E.D.N.Y. July 19, 2002)
("Although I do not believe a remand is necessary in every case
where there are not explicit findings on all seven of the
required factors, I believe that remand is required here, where a
review of the transcript of the hearing and the ALJ's written
opinion indicates that only one or two of the seven factors was
given any consideration before drawing an adverse credibility
determination against the claimant.").
43

will consider all of the evidence presented, including information about your prior work record . . . .").

Because "[a]

claimant with a good work record is entitled to substantial
credibility when claiming an inability to work because of a
disability," Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir.
1983), citing Singletary v. Sec'y of Health, Educ. & Welfare, 623
F.2d 217, 219 (2d Cir. 1980), the ALJ should have considered it.
See Romanelli v. Astrue, No. CV–11–4908 (DLI), 2013 WL 1232341 at
*11 (E.D.N.Y. Mar. 26, 2013); Johnson v. Astrue, supra, 748 F.
Supp. 2d at 173-74.
The ALJ's above-referenced errors regarding the record
in conjunction with his failure to discuss evidence tending to
support plaintiff's statements as to the degree of his pain are
particularly troubling because an ALJ "'cannot simply selectively
choose evidence in the record that supports his conclusions' . .
. [or] mis-characterize a claimant's testimony."

Meadors v.

Astrue, supra, 370 F. App'x at 185 n.2, quoting Gecevic v. Sec'y
of Health & Human Servs., 882 F. Supp. 278, 286 (E.D.N.Y. 1995).
Accordingly, I conclude that the ALJ's decision regarding plaintiff's credibility is not supported by substantial
evidence and should also be remanded on that basis.

On remand,

the ALJ should explicitly consider the factors set forth by 20

44

C.F.R. § 1527(c) and address what weight, if any, to give to
plaintiff's work history.

4.

The Need for a
Vocational Expert

Finally, plaintiff argues that the ALJ should have
obtained a vocational expert to assess whether he could perform
other work (Pl. Mem. at 23-24).

Specifically, plaintiff contends

that a vocational expert was necessary to address (1) his inability to sit or stand for prolonged periods and (2) his associated
pain (Pl. Mem. at 23-24).

The Commissioner responds that the ALJ

properly relied on the Grid because there was no evidence that
plaintiff suffered from non-exertional limitations (Comm'r Mem.
at 21-22).
As indicated above, "exclusive reliance on the [Grid]
is inappropriate" where non-exertional limitations "significantly
diminish [a claimant's] ability to work."

Butts v. Barnhart,

supra, 388 F.3d at 383, quoting Rosa v. Callahan, supra, 168 F.3d
72, 78 (2d Cir. 1999) (internal quotation omitted).

A claimant's

ability to work is significantly diminished when the claimant is
"unable to perform the full range of employment indicated by the
[Grid]," Bapp v. Bowen, supra, 802 F.2d at 603, or if the Grid

45

fails "to describe the full extent of [the] claimant's physical
limitations," Butts v. Barnhart, supra, 388 F.3d at 383.
The ALJ did not need to depart from the Grid because
plaintiff's limitations were plainly exertional.

Agency regula-

tions define exertional limitations as "limitations and restrictions imposed by . . . impairment(s) and related symptoms, such
as pain, [that] affect only [the] ability to meet the strength
demands of jobs (sitting, standing, walking, lifting, carrying,
pushing, and pulling)."

20 C.F.R. § 404.1569a(b).

Because the

ability to sit or stand for prolonged period is a strength demand
of the job, plaintiff's impairments and associated pain 15 impose
only exertional limitations.

15

Plaintiff's contention that pain is itself a nonexertional limitation is incorrect. Pain is neither an
exertional nor a non-exertional limitation. Rather, pain may
impose exertional or non-exertional limitations, depending on
whether it adversely affects a claimant's exertional or
non-exertional abilities. See 20 C.F.R. § 404.1569a(b)-(c);
accord Rosa v. Callahan, supra, 168 F.3d at 78 n.2; Longbardi v.
Astrue, 07 Civ. 5952 (LAP), 2009 WL 50140 at *23 n.61 (S.D.N.Y.
Jan. 7, 2009) (Preska, D.J.). Plaintiff does not argue here that
his pain imposes any of the non-exertional limitations identified
in 20 C.F.R. § 404.1569a(c), and, therefore, his contention that
the ALJ failed to consider such limitations is erroneous.
46

Plaintiff argument that Ruling 96-9p 16 dictates otherwise is unpersuasive (Pl. Mem. at 24; Tr. 185, 191).

Plaintiff

argues that the ALJ must call a vocational expert to determine
whether plaintiff's inability to sit or stand beyond 30 minutes
erodes the occupational base for sedentary work available to him.
However, Ruling 96-9p states that "[f]or individuals able to
stand and walk in between the slightly less than 2 hours and only
a few minutes, it may be appropriate to consult a vocational
resource" to determine whether the occupational base for sedentary work has eroded.
sis added).

Ruling 96-9p, 1996 WL 374185 at *6 (empha-

The ALJ's decision to call a vocational expert is

clearly discretionary.

Rodriguez v. Astrue, No. 08–CV–002S, 2009

WL 2957989 at *4-*5 (W.D.N.Y. Sept. 11, 2009); see also Overbaugh

16

Ruling 96-9p states, in pertinent part:
Standing and walking: The full range of sedentary work
requires that an individual be able to stand and walk
for a total of approximately 2 hours during an 8-hour
workday. If an individual can stand and walk for a
total of slightly less than 2 hours per 8-hour workday,
this, by itself, would not cause the occupational base
to be significantly eroded. Conversely, a limitation
to standing and walking for a total of only a few
minutes during the workday would erode the unskilled
sedentary occupational base significantly. For
individuals able to stand and walk in between the
slightly less than 2 hours and only a few minutes, it
may be appropriate to consult a vocational resource.

1996 WL 374185 at *6.
47

v. Astrue, No. 6:07-CV-0261 (NAM/DEP), 2010 WL 1171203 at *8-*9
(W.D.N.Y. Mar. 22, 2010).

Thus, the ALJ did not err in relying

exclusively on the Grids to determine that plaintiff could still
perform the full range of sedentary work.

IV.

Conclusion

For all the foregoing reasons, plaintiff's motion for
judgment on the pleadings in granted (Docket Item 22) and the
Commissioner's cross motion is denied (Docket Item 20).

The case

is remanded to the Commissioner pursuant to sentence four of 42
U.S.C.

§

opinion.
Dated:

405(g) for further proceedings consistent with this
The Clerk of the Court is directed to close the case.
New York, New York
March 18, 2014

SO ORDERED

/ L, __ """'
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'

HENRY PIT
United States Magistrate Judge

48

Copies mailed to:
Sharmine Persaud, Esq.
Persaud & Morrin PLLC
1105 Route 110
Farmingdale, New York 11735-4818
John E. Gura, Jr., Esq.
Assistant United States Attorney
Southern Dist ct of New York
86 Chambers Street
New York, New York 10007

49