Davis v. Colvin et al

Filing 20

MEMORANDUM AND ORDER denying 14 Motion for Judgment on the Pleadings; denying 17 Motion for Judgment on the Pleadings. Because the ALJ failed to apply the correct legal standard in deciding the appropriate weight to afford treating physicians and failed to develop the record, this case is remanded to the Commissioner for further development of the evidence and reconsideration in light thereof. The Court expresses no view on how the matter should be determined on remand. Defendant's motion for judgment on the pleadings and plaintiff's cross-motion for judgment on the pleadings are DENIED. (Signed by Judge P. Kevin Castel on 8/7/2014) (kgo) (Main Document 20 replaced on 8/7/2014) (kgo).

I. PROCEDURAL HISTORY
On January 7, 2011, plaintiff applied to the Social Security Administration
(“SSA”) for DIB due to a pinched nerve, carpal tunnel syndrome in both hands, a torn shoulder
ligament, and pain in the right wrist and right hand. (R. 150.) On April 14, 2011, the SSA
determined that plaintiff’s conditions were not severe enough to prevent him from working and
denied his application (R. 95, 98.) The SSA notified plaintiff that his claim was disapproved and
informed him of his right to request a hearing. (R. 95-97.)
On April 20, 2011, plaintiff timely requested a de novo hearing before an ALJ,
which was held on November 10, 2011. (R. 73, 105-06.) Plaintiff appeared at the hearing and
was represented by counsel. (R. 73.)
In a written decision dated November 23, 2011, the ALJ denied plaintiff’s claim
for benefits. (R. 52-65.) Applying the agency’s sequential five-step test for determining whether
an individual is disabled, the ALJ concluded that plaintiff was not disabled under sections 216(i)
and 223(d) of the Social Security Act. (R. 55.) Based on the evidentiary record, he concluded
that although plaintiff had several severe impairments, including “internal derangement of the
bilateral knees status post-arthroscopic surgery, internal derangement of the left shoulder postarthroscopic surgery, and carpal tunnel syndrome in the right hand,” plaintiff did “not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. 57.) The ALJ further concluded
that plaintiff still had the “residual functional capacity to perform the full range of sedentary
work defined in 20 CFR 404.1567(a).” (R. 58.) The ALJ gave little weight to the opinions of
plaintiff’s treating physicians and gave significant weight to the opinion of a consultative
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physician. (R. 60.) With respect to the credibility of plaintiff’s allegations, the ALJ noted that
“[plaintiff’s] medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the [plaintiff’s] statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (R. 61.)
On January 11, 2012, plaintiff requested review of the ALJ’s decision. (R. 8-51.)
The SSA Appeals Council denied the request for review on January 25, 2013, and the ALJ’s
decision thus became the final decision of the Commissioner. (R. 1.)
Plaintiff filed a timely action in this Court seeking review of the Commissioner’s
final decision. Both parties moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R.
Civ. P.
II. EVIDENCE BEFORE THE ALJ
At the hearing before the ALJ, plaintiff testified about his age, height, weight,
education, daily activities, work history, medical treatment history, physical and psychiatric
condition. (R. 75-92.) The ALJ reviewed documentary evidence including medical records from
Mount Sinai Hospital of Queens (R. 205-08); progress and treatment reports from plaintiff’s
physicians, Drs. Thomas Scilaris, Christopher Kyriakides and other physicians affiliated with
New York Orthopaedic Surgery and Rehabilitation; medical records from Saint Luke’s
Roosevelt Emergency Department (R. 347-354); a consultative examination report by Dr. Rahel
Eyassu (R. 361-65); and a narrative report of plaintiff’s medical history from treating physician,
Dr. Eric Jacobson. (R. 411-416.)

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a. Non-Medical Evidence
The plaintiff testified about his background. He was born on February 27, 1966
and was 44 years old on the alleged disability onset date, June 22, 2010. (R. 61.) He is six feet
tall and weighs approximately 190 pounds. (R. 77.) He lives alone but occasionally stays with a
friend or his mother. (R. 86.) Plaintiff drives a car to attend doctors’ appointments and has
difficulty using public transportation. (R. 77-78, 83.)
The plaintiff has at least a high school education and is able to communicate in
English. (R. 78.) Plaintiff worked as a correction officer for more than 21 years. (R. 78.)
Between November 2008 and June 2010, plaintiff was placed on light duty, which he described
as a desk job, as a result of his injuries. (R. 79-80.) He stopped working in June of 2010 when
his pain did not subside. (R. 79.)
b. Medical Evidence
The ALJ reviewed plaintiff’s medical records, including records of Dr. Scilaris,
Dr. Kyriakides, Dr. Liebowitz, and Dr. Capiola, who provided the plaintiff with ongoing medical
treatment. These records included functional assessments and narrative reports written by Dr.
Scilaris, Dr. Jacobson, and Dr. Kyriakides. (R. 411-36.) Additionally, he considered the report
of a consulting evaluation conducted by Dr. Eyassu. (R. 361-65.)
i. Treating Physicians’ Records
On November 19, 2009, plaintiff presented to Dr. Liebowitz with left shoulder
pain subsequent to an injury that occurred on November 19, 2008, where he was attacked by an
inmate while on duty as a correction officer. (R. 205-08, 225.) On December 15, 2009, the
plaintiff underwent arthroscopic surgery to his left shoulder. (R. 226.) On January 8, 2010, Dr.
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Capiola conducted a post-operative examination of the patient and recommended physical
therapy, prescribed Mobic and recommended that he return to work, performing light duty
without heavy lifting. (R. 223.) Plaintiff returned to Dr. Capiola on February 4, 2010, and
reported that the pain in his left shoulder had not subsided and that he was also experiencing pain
in his right knee caused by the same November 2008 work-related accident. (R. 221.) On April
22, 2010, Dr. Capiola injected corticosteroid to the plaintiff’s left shoulder for the pain. (R. 219.)
On May 12, 2010, Dr. Capiola examined plaintiff who still reported having pain in his left
shoulder and right knee. (R. 218.) Dr. Capiola determined that plaintiff had a partial tear in his
right ACL. (R. 218.) On June 28, 2010, Dr. Liebowitz cleared plaintiff to carry a firearm. (R.
236.)
On February 7, 2010, plaintiff fell at work, causing pain in his right hand, wrist,
and left shoulder. On February 11, 2010, Dr. Kyriakides examined plaintiff regarding the
injuries resulting from the February 7 work-related accident. (R. 262.) Dr. Kyriakides
immobilized plaintiff’s right hand with a short arm cast and recommended it remain immobilized
for four to six weeks. (R. 262-63.) On March 4, 2010, Without removing the cast, Dr. Capiola
performed x-rays of plaintiff’s right hand and wrist, which showed no obvious cortical disruption
or obvious fracture. (R. 247.) On March 11, 2010, Dr. Kyriakides removed the cast of
plaintiff’s right hand, ordered an MRI of the right hand and left shoulder, prescribed Percocet
due to the severe pain, and advised the plaintiff to avoid all strenuous physical activity. (R. 264.)
On May 10, 2010, Dr. Capiola reviewed the MRI of plaintiff’s right wrist, which
was taken on April 23, 2010, and demonstrated a possible non-displaced fracture of the
triquetrum. (R. 244.) Dr. Capiola recommended that the plaintiff engage in aggressive physical
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therapy for his right wrist, left knee and left shoulder, which continued to cause plaintiff pain.
(R. 244.) Following this examination, Dr. Capiola restricted plaintiff to “no inmate contact” at
work for three to six months beginning May 10, 2010. (R. 254.)
On July 1, 2010, Dr. Kyriakides examined the plaintiff, who complained of
ongoing left shoulder pain. An MRI revealed an intrasubstance tear of the supraspinatus with
lateral down sloping of the acromion (a continuation of the shoulder blade or scapula). Based on
the MRI, Dr. Kyriakides concluded that the plaintiff might require additional surgery. (R. 267.)
Dr. Kyriakides also concluded that the MRI of plaintiff’s right hand and wrist revealed a bone
island along the distal radius and tendinosis versus neuroma and referred him to a specialist, Dr.
Scilaris. (R. 267.) On December 9, 2010, upon request by Dr. Capiola, Dr. Kyriakides
recommended autologous platelet-rich plasma injections prior to the anticipated left shoulder
surgery. (R. 272.)
Dr. Kyriakides issued a report on May 5, 2011, and noted that cortisone injections
had temporarily relieved plaintiff’s shoulder pain. (R. 431.) He also issued a follow-up report
on June 28, 2011, which stated that the plaintiff suffered continued hand dysfunction and noted
that plaintiff would be prescribed Vicodin three times a day for “breakthrough pain.” (R. 435.)
On September 16, 2011, Dr. Scilaris completed a check-the-box form regarding
plaintiff’s residual functional capacity. He concluded that plaintiff would be limited to standing
and/or walking less than two hours in an eight hour work day and sitting less than two hours in
an eight hour work day. He also limited the plaintiff to lifting and carrying between five and ten
pounds during an eight hour work day. Dr. Scilaris based these findings on surgical pictures

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from the plaintiff’s December 2009 left shoulder surgery and a right knee arthroscopic surgery
that took place on April 6, 2011. (R. 418-21.)
On September 19, 2011, Dr. Jacobson completed a check-the-box form regarding
plaintiff’s residual functional capacity. He concluded that plaintiff would be limited to standing
and/or walking less than two hours in an eight hour work day and sitting less than two hours in
an eight hour work day. He also limited the plaintiff to lifting and carrying between five and ten
pounds during an eight hour work day. (R. 412-13.) Dr. Jacobson also submitted a narrative
report concerning plaintiff’s functional limitations, in which he stated that plaintiff had been
under his care from November 23, 2009 until the date of his report, October 26, 2011, for
injuries sustained in the November 19, 2008 work related accident and a June 26, 2009 motor
vehicle accident. Dr. Jacobson also reported that he had seven prior appointments with the
plaintiff between February 8, 2010 and October 26, 2011, and that he had another appointment
scheduled for November 23, 2011. (R. 414-16.)
On October 6, 2011, Dr. Kyriakides completed a check-the-box form regarding
plaintiff’s residual functional capacity. He concluded that plaintiff would be limited to standing
and/or walking less than one hour in an eight hour work day and sitting less than two hours in an
eight hour work day. He also limited the plaintiff to lifting and carrying between five and ten
pounds for one-third of an eight hour work day and less than five pounds for 2/3 of an eight hour
work day. (R. 423-24.) Dr. Kyriakides based these findings on reports between August 2009
and June 2011. (R. 425-35.)

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ii. Non-Treating Physicians’ Reports
On March 22, 2011, Dr. Eyassu performed a consultative physical examination on
plaintiff. Plaintiff explained to Dr. Eyassu that he experienced daily neck pain, exacerbated by
sitting and standing and alleviated by sleeping. (R. 361.) He also stated that he went to physical
therapy three times a week without improvement and noted that the three cortisone injections in
his right knee had not improved his condition. (R. 361.) Dr. Eyassu observed that the plaintiff
had a mildly antalgic abnormal gait and did not need help getting on and off the exam table or
changing for the exam. (R. 362.) Dr. Eyassu recommended plaintiff seek an orthopedic
evaluation of his left shoulder. (R. 364.) Dr. Eyassu concluded that “plaintiff has marked
limitation for reaching up, activities such as pulling and pushing, activities such as excessive
neck movements, and activities that would require lifting. He has moderate limitation on activity
with repetitive squatting, kneeling, and crawling. He also has moderate limitation on prolonged
sitting and standing.” (R. 364.)
III. APPLICABLE LAW
a. Standard of Review
Under Rule 12(c), Fed. R. Civ. P., a movant is entitled to judgment on the
pleadings only if he establishes that, based on the pleadings, he is entitled to judgment as a
matter of law. Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am.
(UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995). “Judgment on the pleadings is
appropriate where material facts are undisputed and where a judgment on the merits is possible
merely by considering the contents of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842

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F.2d 639, 642 (2d Cir. 1988).
District court review of the Commissioner’s final decision denying disability
benefits is limited. A court may not review the Commissioner’s decision de novo. See Cage v.
Comm’r of Soc. Servs., 692 F.3d 118, 122 (2d Cir. 2012) (citation omitted). If the
Commissioner’s findings are free of legal error and supported by substantial evidence, the court
must uphold the decision. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive, and where a
claim has been denied . . . the court shall review only the question of conformity with [the]
regulations . . . .”); see also Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). A court’s
review thus involves two levels of inquiry. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).
First, the court must review “whether the Commissioner applied the correct legal standard,” id.,
including adherence to applicable regulations, see Kohler, 546 F.3d at 265. Second, the court
must decide whether the Commissioner’s decision is supported by substantial evidence. Tejada,
167 F.3d at 773.
An ALJ’s “[f]ailure to apply the correct legal standards is grounds for reversal.”
Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)). An ALJ’s factual findings supported by substantial evidence are “binding”
on a district court; however, “where an error of law has been made that might have affected the
disposition of the case,” the Court cannot simply defer to the ALJ’s factual findings. Id.
It is the function of the Commissioner, not the reviewing court, “to resolve
evidentiary conflicts and to appraise the credibility of witnesses, including claimant.” Carroll v.
Sec’y of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983). “[G]enuine conflicts in
the medical evidence are for the Commissioner to resolve.” Burgess v. Astrue, 537 F.3d 117,
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128 (2d Cir. 2008) (citation omitted). In particular, courts must show special deference to an
ALJ’s credibility determinations because the ALJ had the opportunity to observe plaintiff’s
demeanor while testifying. Yellow Freight Sys. Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994); see
also Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).
Before deciding whether the Commissioner’s determination is supported by
substantial evidence, the reviewing court must first be satisfied that the claimant received “a full
hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the
Act.” Echevarria v. Sec’y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)
(citation and quotation marks omitted). The ALJ has an affirmative duty to fully and fairly
develop an administrative record. Echeverria, 685 F.2d at 755. This duty arises, regardless of
whether the claimant is represented by counsel, from the fact that “a hearing on disability
benefits is a non-adversarial proceeding.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
“[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to
develop a claimant’s medical history ‘even when the claimant is represented by counsel . . . .’”
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting Perez, 77 F.3d at 47). Accordingly,
“the reviewing court must make a ‘searching investigation’ of the record to ensure that” the ALJ
protected the claimant’s rights. Robinson v. Sec’y of Health and Human Servs., 733 F.2d 255,
258 (2d Cir. 1984) (citation omitted). “If the reviewing court determines that a claimant did not
receive a ‘fair and adequate hearing’ before the ALJ, . . . it must remand the case to the
Commissioner . . . .” Watson v. Astrue, 08-cv-1523, 2009 WL 6371622, at *5 (S.D.N.Y. Feb 4,
2009), adopted by 2010 WL 1645060 (S.D.N.Y. Apr. 22, 2010). “A finding of gaps in the
record or need for further development of the evidence is cause for remand.” Batista v. Chater,

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972 F. Supp. 211, 217 (S.D.N.Y. 1997) (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980).
b. Five-Step Disability Determination
The Act defines “disability” in relevant part as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Act
provides that “[a]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C.
§ 423(d)(2)(A). “Work that exists in the national economy” “means work which exists in
significant numbers either in the region where such individual lives or in several regions of the
country.” 42 U.S.C. § 423(d)(2)(A); see also 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner’s determination of a claimant’s disability follows a five-step
sequential analysis promulgated by the “SSA”. 20 C.F.R. §§ 404.1520, 416.920. The Second
Circuit has described this analysis as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
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Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience . . . . Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform.

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467
(2d Cir. 1982) (brackets and omission in original)). The claimant bears the burden of proof for
the first four steps; the burden shifts to the Commissioner at the fifth step. See Shaw v. Chater,
221 F.3d 126, 132 (2d Cir. 2000).
“In making his determination by this process, the Commissioner must consider
four factors: (1) the objective medical facts; (2) diagnoses or medical opinions based on such
facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4)
the claimant’s educational background, age, and work experience.” Brown v. Apfel, 174 F.3d
59, 62 (2d Cir. 1999) (per curiam) (citation and quotation marks omitted). Further, the
Commissioner “shall consider the combined effect of all the individual’s impairments . . . .” 42
U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
c. Treating Physician Rule
Under applicable regulations, the opinion of a claimant’s treating physician
regarding “the nature and severity of [claimant’s] impairment[s]” 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] case record.” 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
2003) (citations omitted). In contrast, a treating physician’s opinion is not afforded to
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controlling weight when the opinion is inconsistent with other substantial evidence in the record,
such as the opinions of other medical experts. 20 C.F.R. § 404.1527(d)(2); Snell v. Apfel, 177
F.3d 128, 133 (2d Cir. 1999). In such a case, a report from a consultative physician may
constitute substantial evidence. Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983). If the
ALJ gives the treating physician’s opinion less than controlling weight, he must provide good
reasons for doing so. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
If not afforded controlling weight, a treating physician’s opinion is given weight
according to a number of factors, including, inter alia, (i) the frequency of examinations and the
length, nature, and extent of the treatment relationship; (ii) the evidence in support of the
physician’s opinion; (iii) the opinion’s consistency with the record as a whole; and (iv) whether
the physician has a relevant specialty. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Clark,
143 F.3d at 118.
The opinion of a treating physician, or any doctor, that the claimant is “disabled”
or “unable to work” is not controlling. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). Medical
opinions on such issues are merely a consideration and not determinative. 20 C.F.R. §
404.1527(e). Such issues are reserved to the Commissioner. Id. Reserving these issues to the
Commissioner relieves the SSA of having to credit a doctor’s finding regarding these issues, but
that “does not exempt [the ALJ] from [his] obligation . . . to explain why a treating physician’s
opinions are not being credited.” Snell, 177 F.3d at 134.
IV. DISCUSSION
a. The ALJ’s Decision
Applying the five-step process for evaluating disability claims, see 20 C.F.R. §§
404.1520, 416.920; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999), the ALJ denied plaintiff’s
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benefit claim. (R. 52-65.) At step one, the ALJ determined that plaintiff has not engaged in
substantial gainful activity since June 22, 2010, the alleged onset date of his condition. (R. 57.)
At step two, he found that plaintiff had several “severe” impairments, as defined in 20 C.F.R. §
404.1520(c), which “have more than a minimal impact on the [plaintiff’s] ability to do work like
activities,” including internal derangement of the bilateral knees status post arthroscopic surgery,
internal derangement of the left shoulder status post arthroscopic surgery, and carpal tunnel
syndrome in the right hand. (R. 57.) However, the ALJ did not find that these impairments met
or were medically equal to the impairments listed in Appendix 1 to Subpart P of 404 at step three
of the disability determination. (R. 57-58.) At step four, he determined that plaintiff could not
perform any past relevant work since the residual functional capacity required of his previous
work as a correction officer exceeded his current residual functional capacity. (R. 61.) At the
fifth step, the ALJ, relying on the opinion of Dr. Eyassu, concluded that plaintiff would have a
moderate restriction in prolonged sitting and standing, found that the Commissioner had
demonstrated that plaintiff had the residual functional capacity to sit for up to six hours in an
eight-hour day, stand and/or walk up to two hours in an eight hour day, lift and carry up to ten
pounds occasionally and less than ten pounds frequently. (R. 60-62.) These capacities permitted
the plaintiff to perform the full range of sedentary work. (R. 62.) Therefore, the ALJ found that
plaintiff was “not disabled” according to Medical-Vocational Rule 201.28. (R. 62.)
b. Weight Afforded to Treating Physicians’ Opinions
The ALJ declined to give controlling weight to the opinions of plaintiff’s
physicians, Dr. Jacobson, Dr. Sclaris, and Dr. Kyriakides, and instead relied on the opinion of
Dr. Eyassu. The ALJ concluded that the treating physicians’ opinions were inconsistent with
their own clinical findings, were unsupported by the substantial medical evidence in the record,
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and were based upon objective evidence that predated the claimant’s alleged onset date. He also
noted that Dr. Eyassu’s opinion should be afforded significant weight because it was based upon
clinical findings adduced directly by Dr. Eyassu and because it was most consistent with the
substantial medical evidence of record. (R. 60.)
As will be developed, the ALJ had a proper basis to conclude that the opinions of
Dr. Scilaris and Dr. Kyriakides opinions were not entitled to controlling weight because they are
inconsistent with other substantial evidence in the record. However, he failed to assess the
weight Dr. Jacobson’s opinion should be given in accordance with the factors set forth in the
regulations. See Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (citing 20
C.F.R. §§ 404.1527(d) (2), 416.927(d)(2)).
In considering the clinical findings upon which Dr. Scilaris based his opinion of
plaintiff’s residual functional capcity, the ALJ noted that Dr. Scilaris relied upon the two
surgeries plaintiff underwent in December 2008 and April 2011. The ALJ indicated that there
were no records regarding the plaintiff’s post-operative prognosis after his April 2011 surgery.
The ALJ also appropriately considered the record submitted with Dr. Kyriakides’ residual
functional capacity assessment of plaintiff. The ALJ acknowledged that the medical records
showed plaintiff continued to have knee and shoulder problems as recently as June 2011. Dr.
Kyriakides did not indicate that there were further records upon which he based his findings.
Therefore the ALJ did not improperly weigh the opinions of Dr. Scilaris or Dr. Kyriakides.
However, the record lacks details regarding the frequency and nature of the
treatment relationship between Dr. Jacobson and the plaintiff. Dr. Jacobson’s narrative report
reflects that they had an ongoing treatment relationship. In his decision, the ALJ noted that Dr.
Jacobson had seen the plaintiff six times, although there are no records in the claims file related
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to any clinical exams by Dr. Jacobson. The record does not contain any treatment records from
Dr. Jacobson and there is no indication in the record that the ALJ made any effort to contact Dr.
Jacobson for additional information or details regarding the treatment relationship. Although the
ALJ may not have had an affirmative duty to obtain the actual treatment records, he had a duty to
conduct a searching investigation of the record to ensure that the plaintiff received a full and
adequate hearing. See Robinson v. Sec’y of Health and Human Servs., 733 F.2d 255, 258 (2d
Cir. 1984), 20 C.F.R. § 404.1512(d) (“Before we make a determination that you are not disabled,
we will develop your complete medical history for at least the 12 months preceding the month in
which you file your application . . . .”) The plaintiff’s testimony did not develop evidence
regarding the plaintiff’s treatment relationship with Dr. Jacobson. Because the ALJ did not have
a sufficient record of the plaintiff’s relationship with Dr. Jacobson, it could not properly weigh
Dr. Jacobson’s opinion.
Failure to assess a treating physicians’ opinion in accordance with the factors set
forth in the regulations and failure to supplement deficient treating physician medical records
constitutes grounds for reversal and remand. See Schaal v. Apfel, 134 F.3d 496, 504, 505 n.9
(2d Cir. 1998) ( “[t]o the extent that the treatment notes may have been unclear, it was of course
the Commissioner's responsibility to clarify the record-all the more so because the Commissioner
bears the burden of proof in establishing that plaintiff had the residual functional capacity to
engage in sedentary work”); Rosa, 168 F.3d at 79 (“An ALJ cannot reject a treating physician’s
diagnosis without first attempting to fill any clear gaps in the administrative record.”); Ellington
v. Astrue, 641 F. Supp. 2d 322, 330-31 (S.D.N.Y. 2009) (“the ALJ committed legal error in not
describing how much weight he did accord to [the treating physician’s] opinion once he
determined that it was not controlling”); Santiago v. Massanari, 00-cv-3847 (GEL), 2001 WL
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1946240, at *12-13 (S.D.N.Y. July 16, 2001) (reversing and remanding case where ALJ failed to
consider the factors set forth in the regulations for evaluating treating physicians’ opinions and
did not take affirmative steps to supplement deficient treating physician records).
Because the ALJ did not have sufficient information to determine the weight
accorded to Dr. Jacobson’s opinion, he committed legal error. See Kohler, 546 F.3d at 265
(citing Schaal, 134 F.3d at 504-05) (explaining that legal error may include failure to adhere to
the applicable regulations). Because the ALJ did not apply the proper legal standard, this Court
need not reach the issue of whether the Commissioner’s decision is supported by substantial
evidence. See Pollard v. Halter, 377 F.3d at 189; Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.
1987) (“[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no disability
creates an unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.”)
An ALJ has an affirmative duty to develop the record even when a claimant is
represented by counsel. However, plaintiff’s counsel, who contends before this Court that the
ALJ “made no attempt to develop the record by requesting these records, nor even attempt to
ascertain their existence,” was responsible for providing records to the ALJ on the plaintiff’s
behalf. (Pl’s Mem. 20). The Court is troubled by the possibility of tactical gamesmanship in a
Social Security case where counsel fails to submit records that are material but not cumulative. 1
Accordingly, the Court recommends that an ALJ faced with this circumstance in the future elicit
on the record a representation from claimant’s counsel that all records that are material and not

1

The Court makes no conclusion that gamesmanship played any role in this case.

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