Intonato v. Commissioner of the Social Security Administration
OPINION AND ORDER re: 15 FIRST MOTION for Judgment on the Pleadings Notice of Motion, filed by John Intonato, 22 MOTION for Judgment on the Pleadings, filed by Commissioner of the Social Security Administration. For the fo regoing reasons, Intonato's motion for judgment on the pleadings is granted, the Commissioner's cross-motion is denied, and the case is remanded to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g). Specifically, on remand, th e ALJ should: (1) Request from Dr. Strassberg an explanation and clarification concerning the ambiguities and/or inconsistencies identified within the April 2011 medical report, and between the April 2011 and March 2012 reports; (2) Provide a clear and comprehensive definition of what the ALJ understands the word "moderate" to mean when applied to functional limitations; (3) Determine what weight should be given to Dr. Strassberg's opinion, if it is not deemed to be controlli ng, based on the appropriate factors outlined above and provide a clear and comprehensive statement of the reasons for reaching this decision; (4) Obtain from Dr. Menitove a completed medical questionnaire or similar testimony regarding Intonato& #039;s symptoms and functional limitations; (5) Determine what weight should be given to Dr. Menitove's opinion, if it is acquired and not deemed to be controlling, based on the appropriate factors outlined above and provide a clear and compr ehensive statement of the reasons for reaching this decision; and (6) Reevaluate Intonato's credibility based on an accurate characterization of his treatment and this further development of the record, as described above. The Clerk of the Court is directed to close docket entries 15 and 22. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 8/7/2014) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
13 Civ. 3426 (JLC)
-- v. --
CAROLYN COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
JAMES L. COTT, United States Magistrate Judge.
Plaintiff John Intonato brings this action seeking judicial review of a final determination
by Defendant Carolyn Colvin, Acting Commissioner of Social Security ("Commissioner"),
denying Intonato's application for disability insurance benefits ("DIB"). The parties have crossmoved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons set forth below, Intonato's motion is granted, the Commissioner's
cross-motion is denied, and the case is remanded to the Commissioner for further proceedings.
A. Procedural History
Intonato filed an application for DIB on October 12, 2011. Administrative Record
("Rec.") (Dkt. No. 11), at 117-23. 1 Intonato claimed disability beginning on June 14, 2010, id. at
117, due to cervical and lumbar stenosis, cervical cord compression, anxiety, depression, a
partial right kidney removal, a right incisional hernia, chronic abdominal pain, and sleep apnea,
id. at 148. The Social Security Administration ("SSA") denied his claim on January 20, 2012.
The Administrative Record is divided into ten separate docket entries (Dkt Nos. 11-1 to 11-10).
Citations to the Administrative Record refer to the bold page numbers in the lower right-hand
corner, which run sequentially throughout the docket entries.
DATE SCANNED_ _
Id. at 89-100. On March 2, 2012, Intonate filed a request for a hearing before an Administrative
Law Judge ("ALJ"). Id. at 101-03. Represented by counsel, he appeared and testified at a
hearing held before ALJ Michael A. Rodriguez on May 2, 2012. Id. at 33-74. The ALJ found
that Intonate was not disabled and denied his claims in a written decision dated July 17, 2012.
Id. at 17-32. The SSA Appeals Council received Intonato's request for a review of the ALJ's
decision on September 19, 2012. Id. at 13-16. The Council denied review on March 20, 2013,
rendering the ALJ' s determination the Commissioner's final decision. Id. at 1-7.
Intonate timely commenced the current action on May 21, 2013, seeking judicial review
of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). See Complaint ("Compl.") (Dkt.
No. 1). On December 28, 2013, the Commissioner filed her Answer. (Dkt. No. 10). Intonate
moved for judgment on the pleadings pursuant to Rule 12(c) on March 21, 2014. See Notice of
Motion (Dkt. No. 15); Plaintiffs Memorandum of Law ("Pl. Mem.") (Dkt. No. 17). The
Commissioner filed a response on May 16, 2014, and cross-moved for judgment on the
pleadings. See Notice of Motion (Dkt. No. 22); Memorandum of Law in Support of the
Defendant's Motion for Judgment on the Pleadings ("Def. Mem.") (Dkt. No. 23). Intonate did
not submit any reply.
B. The Administrative Record
1. Intonato's Background
Born on September 26, 1968, Intonate was 41 years old on the alleged disability onset
date and 43 years old at the time of his application for DIB. Rec. at 117, 145, 192. He is not
married and has no children, and, as of his administrative hearing, lived in West Nyack, New
York with his brother, his brother's wife, and their two children. Id. at 39-41. Intonate has
completed some coursework at a community college and also received a medical assistant
certification in 1997. Id. at 43, 179. After receiving his medical assistant certificate, Intonato
worked consistently as an ophthalmic technician for three different medical groups. Id. at 43-44,
150, 173, 179. In June 2010, he left his most recent position, where he had worked since 2004.
Id. at 57-58, 173, 179-80. According to Intonato, he left this position because he was "verbally
abused" by his employer for taking time off to care for his mother in the hospital. Id.
At his administrative hearing and in his submissions to the SSA, Intonato described his
day-to-day activities. Intonato spends several hours each day watching television. Id. at 61, 163.
He makes quick meals for himself, but does not cook anything that requires long periods of
standing or clean-up. Id. at 61, 161-62. Intonato explained that he cleans around the house, but
requires some assistance to do so. Id. at 162. Sometimes, he watches his nephew at home. Id. at
62. Intonato also testified that he is able to drive and occasionally goes to the library to read a
newspaper or use a computer. Id. at 61-62; see also id. at 163. He explained that, while he is
able to shop for clothes and food, he does so "very seldom." Id. at 163. At his hearing, he
testified that he has no difficulty taking care of his personal needs, including shaving, bathing, or
putting on clean clothes every day. Id. at 71; but see id. at 160-61. Despite living with his
brother, Intonato claimed that he spends much of his time alone and that he does not socialize
with family or friends very often. Id. at 164. Once a month, he has dinner with his family, but
otherwise, he avoids family functions; Intonato explained that his anxiety and depression have
distanced him from his family. Id. Similarly, he said he meets friends about once a week, but
his anxiety and discomfort increases around large groups of people. Id. at 72-73, 171. Such
events lead to panic attacks, which Intonato claimed occur on a daily basis and consist of fear,
rapid heartbeat, sweating, and confusion. Id. at 170.
Regarding his symptoms, Intonato explained that he is unable to sit or stand longer than
15-20 minutes at a time before he becomes uncomfortable and has difficulty concentrating. Id.
at 47, 66, 160. Intonato testified that when he stands for 10 to 15 minutes, he experiences pain,
numbness, and tingling in his shoulders and arms, particularly on his right side. Id. at 47-49. He
also said he has a limited ability to walk because of his pain. Id. at 64, 166. Intonato said that it
is painful to bend over while dressing, stand while taking a shower, and sit during meals. Id. at
160-61. For his pain, he wears an abdominal binder and takes Advil or Al eve. Id. at 168-69.
Finally, Intonato noted that he has had sleep apnea, which interferes with his ability to breathe
while sleeping and makes him tired during the day. Id. at 71-72, 160.
Medical Evidence in the Record
a. Medical History
Intonato was diagnosed with severe obstruct sleep apnea ("OSA") on November 15,
1999, after undergoing an overnight polysomnography study. Rec. at 261-62. At the request of
Dr. Stephen Menitove, 2 Intonato underwent three more such studies in July 2005, id. at 246-51;
October 2009, id. at 244-45; and November 2011, id. at 366-69. To treat his OSA, Intonato uses
continuous positive airway pressure treatment and, in November 2009, had a tonsillectomy and
surgery to remove throat tissue and reduce his tongue base. Id. at 237, 366. However, as of
Intonato's November 2011 polysomnography study, his sleep apnea was still described as
"severe." Id. at 366-67.
Dr. Menitove does not list his specialization, although his medical group's letterhead suggests
he is a pulmonologist. The group is called "Rockland Pulmonary & Medical Associates," and
he is listed as an "FCCP" (Fellow of the American College of Chest Physicians). Id. at 231.
Partial Nephrectomy and lncisional Hernia
While hospitalized for kidney stones in January 2011, Intonato underwent a CT scan
which showed a possible cyst on his kidney. Id. at 222, 227-28, 276, 278-80. An MRI
performed the following month confirmed the mass, id. at 220, 229, and, in March 2011,
Intonato had a partial nephrectomy to remove the mass and his right adrenal gland. Id. at 237,
380, 394. As a result of the surgery, Intonato developed a "large right-sided incisional hernia."
Id. at 237, 363, 380.
Accordingly, Dr. Menitove then referred Intonato to Dr. Fleischer, a surgeon. Id. at 40001. At his May 4, 2011 appointment with Dr. Fleischer, Intonato characterized his pain as mild
but aggravated by exertion, and reported that it interfered with his daily activities. Id at 400.
Dr. Fleischer noted that an abdominal CT scan of Intonato on May 1, 2011 showed a "large
incisional hernia" Id. Dr. Fleischer also noted that Intonato was severely morbidly obese, and
therefore advised him to lose significant weight before surgery because his obesity put him at
high risk for a recurrent hernia and pulmonary complications. Id. at 400-01. Nevertheless,
Dr. Fleischer scheduled Intonato for surgery on May 19, 2011. Id. at 398. To that end, Intonato
went to Dr. Peter Strassberg, who had been treating Intonato since April 2011, id. at 291-92, for
pre-operative testing, id. at 396, 398, 406. Intonato did not have the surgery as scheduled,
although it is not entirely clear why. Id. at 393. 3 In a June 6, 2011 note, Dr. Strassberg
commented that Intonato would try over-the-counter medication for his hernia pain. Id. at 389.
In July 2011, Intonato again explored the possibility of surgery for his hernia. On July 1,
Intonato saw Dr. Menitove for a pre-operative consultation requested by Dr. Eva Fischer, a
Although the Commissioner states that Intonato cancelled the surgery himself, Def. Mem. at 3,
the report from Dr. Strassberg's office to which they cite for this fact does not mention who
cancelled the surgery. Rec. at 393.
surgeon. Id. at 237. Dr. Menitove determined that Intonato was "a suitable candidate for
operative intervention for repair of an incisional hernia." Id. at 238. On July 21, Intonato visited
Dr. Strassberg, who also found that there were no medical contraindications to surgery. Id. at
3 82-84. As such, in July 2011, Intonato had his incisional hernia surgically repaired. Id. at 422.
The hernia recurred. An abdominal and pelvic CT scan performed on September 11,
2011 showed a "[p]ersistent right flank post operative hernia." Id. at 377-78. When Intonato
saw Dr. Strassberg three days later to discuss the results of the CT scan, Dr. Strassberg
commented that Intonato was "doing well," but also noted the hernia. Id. at 376. 4 While not
fully supported by the medical evidence in the record, Intonato testified during his administrative
hearing that he has developed four new hernias, including a large incisional hernia and an
umbilical hernia. Id. at 51-54. On June 22, 2012, Dr. Andrew Moulton, an orthopedic surgeon,
noted the presence of a right incisional hernia. Id. at 477, 480.
Cervical and Lumbar Spine
Intonato also suffers from spinal issues. A January 14, 2009 MRI showed that Intonato
had "[e]arly disc degeneration," with a C3-4 "disc herniation," "[c]anal stenosis at C4-5 through
C6-7," and multi-level spinal cord compression. Id. at 204. On October 26, 2011, Dr. Strassberg
noted that Intonato's cervical spine stenosis would require surgery. Id at 374. While the need
for surgery was in the record before the ALJ, Intonato did not mention at his hearing that he had
cervical spine surgery scheduled for June 2012. Pl. Mem. at 3. After the hearing, Intonato
underwent a second cervical spine MRI on May 30, 2012 which revealed osteophyte complexes
at multiple levels, "resultant severe spinal stenosis" and "significant spinal cord compression" at
In her brief, the Commissioner wrote that Dr. Strassberg noted Intonato was "doing well," Def.
Mem. at 3 (citing Rec. at 376). While Dr. Strassberg's handwriting is not clear, this seems to
be a reasonable interpretation of the record.
CS-6, and "moderately severe spinal stenosis" with "impingement and flattening and mild
compression of the cervical spinal cord" at C6-C7. Rec. at 419. An MRI of his lumbar spine
performed the same day revealed "[m]ultilevel degenerative changes," including the possibility
of impingement on the LS nerve roots. Id. at 452. On June 28, 2012, Dr. Moulton performed a
cervical fusion from C2 to T2. Id. at 467-68.
b. Physician Assessments
Dr. Peter Strassberg's Assessments
Dr. Strassberg completed two assessment forms in connection with Intonato's DIB
application. Id. at 290-304, 371-72. He treated Intonato from April 2011 through at least March
24, 2012, id. at 291, 370, and, in January 2012, the SSA's consultative physician identified
Dr. Strassberg as Intonato's primary care physician, id. at 345.
In the first assessment form, dated October 26, 2011, Dr. Strassberg listed the following
diagnoses/symptoms: a right abdominal hernia due to a previous surgery, cervical spine
"compression/stenosis" with "peripheral neuropathy" in both arms, 5 depression, and anxiety. Id.
at 291. Dr. Strassberg characterized Intonato's symptoms as static and lifelong, with no
improvements since his first visit in April 2011. Id. at 292, 297. He observed that Intonato had a
decreased range of motion in the cervical spine and tingling in "both extremities." Id. at 293-94.
However, he noted that Intonato had no significant abnormality in his gait and required no
orthotic appliance or assistive device to walk. Id. at 294-96.
The Commissioner wrote that Dr. Strassberg diagnosed Intonato with "necropathy," not
"neuropathy." Def. Mem. at 3. While Dr. Strassberg's handwriting is unclear, neuropathy,
which is pain or numbness due to nerve damage, better matches Intonato's diagnoses than
necropathy, which relates to tissue death or gangrene. Neuropathy also conforms with the
definition that the Commissioner provides: "nerve damage to the hands and feet." Id.
Dr. Strassberg found that, while Intonato had no physical or objective signs of chronic
fatigue, Intonato experienced fatigue from daily activities as a result of his anxiety and
depression. Id. at 293. Dr. Strassberg did not mention Intonato's history of sleep apnea. Id
Anxiety and depression were the only limitations Dr. Strassberg identified regarding Intonato's
mental status, which Dr. Strassberg said affected Intonato's mood. Id. at 292, 297.
Dr. Strassberg identified Intonato's anxiety, depression, and hernia as presenting difficulties for
his functioning in a work setting. Id. at 298.
Based on his medical findings, Dr. Strassberg determined that Intonato could lift and
carry ten pounds "occasionally," that is, up to one-third of the work day. Id. at 299. He further
determined that Intonato could stand and/or walk for less than two hours per day and sit less than
six hours per day. Id. While Dr. Strassberg indicated in the report that Intonato had no
limitation in his ability to push and/or pull, id. at 300, he also wrote that Intonato's hernia limited
his ability to push and pull, id. at 301.
On March 22, 2012, Dr. Strassberg filled out a second assessment form. Id. at 371-72.
In the form, hernia, cervical spinal cord compression, sleep apnea, anxiety, and depression are
listed as Intonato's medical conditions. Id. at 371. 6 On a chart that divided potential functional
limitations into "No Evidence of Limitations," "Moderately Limited," and "Very Limited,"
Dr. Strassberg indicated that Intonato had moderate limitations in his ability to walk; stand; sit;
lift and carry; push, pull, and bend. Id. at 372. Dr. Strassberg also indicated that Intonato had no
limitations in mental functioning. Id.
All the medical conditions are written in the same handwriting as on the forms Intonate filled
out, suggesting that Intonate listed the conditions himself. Compare Rec. at 371 with id. at
159-80. Dr. Strassberg then specified his prognosis and treatment recommendations for the
hernia and cervical spinal cord compression, but not for the sleep apnea, anxiety, or depression.
Rec. at 371.
Dr. Stephen Menitove's Treatment
Although Dr. Menitove treated Intonato from 1998 through December 2011 and referred
him to various specialists for care, id. at 154, 230-62, 359-69, 400-01, 406, Dr. Menitove did not
complete the medical questionnaire sent to him, id. at 305-21. Nevertheless, many of the
medical reports in the Administrative Record belong to Dr. Menitove. See, e.g., id. at 230-62.
At least one specialist, Dr. Fleischer, referred to Dr. Menitove as Intonato's primary medical
doctor. Id. at 400.
Independent Mental Health Status Examination by Dr. Leslie Helprin
On November 11, 2011, Intonato underwent a mental health status consultation by a
psychologist, Leslie Helprin, Ph.D. Id. at 422-26. Dr. Helprin diagnosed Intonato with a
"[d]epressive disorder, NOS [not otherwise specified]" and a mildly episodic adjustment
disorder marked by anxiety. Id. at 425. Dr. Helprin found that, although Intonato had mild
impairments in his attention, concentration, and memory due to cognitive limitations, he was
able to follow "simple directions and instructions and perform simple rote tasks and some
complex tasks independently" and "maintain sufficient attention and concentration for tasks."
Id. at 424. Dr. Helprin concluded that her examination results were "consistent with some
secondary psychiatric problems, but in itself, this does not appear to be significant enough to
interfere with [Intonato's] ability to function on a daily basis." Id. at 425.
Independent Medical Examination by Dr. Jose Corvalan
On January 3, 2012, Intonato saw Dr. Jose Corvalan, for a consultative evaluation. Id. at
Dr. Corvalan determined that Intonato' s gait and station were normal and that he could
While Dr. Corvalan's signature block identifies him as working in orthopedics, Rec. at 346,
Intonato disputes Dr. Corvalan's specialization, noting that the only "Jose Corvalan, M.D." he
found in an Internet search is a general surgeon. Pl. Mem. at 7.
squat fully. Id at 345. He also noted that Intonato did not need help changing for the exam or
getting on and off the examination table, and rose from his chair without difficulty. Id X-ray
studies revealed "discogenic disease" at C4/C5 and L5-S 1. Id. at 346. Intonato had tenderness
when Dr. Corvalan touched his cervical spine, but there were no trigger points. Id. Intonato's
range of motion in the cervical and lumbar spine was somewhat limited, but he was able to raise
both legs during a straight leg raise test. Id. He had a full range of motion in his shoulders,
elbows, forearms, wrists, knees, and ankles. Id.
Dr. Corvalan diagnosed Intonato with upper and lower back pain, high blood pressure,
anemia, anxiety and depression, nephrolithiasis, an abdominal hernia, and hearing loss. Id. The
prognosis was stable. Id. Dr. Corvalan concluded that Intonato had mild limitations moving his
neck forward, backward, and laterally, and that he had moderate limitations in sitting and
standing for "long periods of time," walking "long" distances, bending, climbing stairs, and
heavy lifting. Id. at 34 7.
c. ALJ Hearing
ALJ Rodriguez held a hearing on May 2, 2012 to consider Intonato's eligibility to receive
DIB benefits. Id. at 33-74. Intonato was represented by counsel at the hearing, and was the only
person to testify. Id. First, the ALJ elicited testimony about Intonato's former work as an
ophthalmic technician. Id. at 43-47. According to Intonato, while his job was not very
physically demanding, it required a high degree of precision and very fine manipulations, and
required him to be on his feet a lot. Id. at 45-4 7. Intonato explained that he could no longer
perform the tasks his former job required because after standing for 10-20 minutes, he
experienced discomfort from his hernia and tingling and numbness from his cervical cord
compression. Id. at 47-48. The ALJ also elicited testimony from Intonato about his daily
activities since he stopped working. Id. at 61-62. Throughout the hearing, the ALJ asked
Intonato about his various maladies and symptoms. Id. at 49-55. Intonato also described his
anxiety and depression. Id. at 59-60, 63-66. In addition, Intonato listed the prescription and
over-the-counter medicine he takes. Id. at 63, 66-68. Finally, Intonato identified Drs. Strassberg
and Menitove as his current treating physicians. Id. at 68-69. When questioned by his attorney,
Intonato described the surgical consultation he had for his hernias the day before the
administrative hearing, and the scheduled operation to repair them. Id. 4, 69-70.
A. Legal Standards
Judicial Review of Commissioner's Determination
An individual may obtain judicial review of a final decision of the Commissioner in the
"district court of the United States for the judicial district in which the plaintiff resides."
42 U.S.C. § 405(g). The district court must determine whether the Commissioner's final
decision applied the correct legal standards and whether the decision is supported by substantial
evidence. Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). "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." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks and alterations
omitted). In weighing whether substantial evidence exists to support the Commissioner's
decision, "the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn." Selian, 708 F.3d at 417
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). On the basis of
this review, the court may "enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Remand is "particularly
appropriate where, due to inconsistencies in the medical evidence and/or significant gaps in the
record, 'further findings would ... plainly help to assure the proper disposition of [a] claim."'
Kirkland v. Astrue, No. 06-cv-4861 (ARR), 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29, 2008)
(quoting Butts, 388 F.3d at 386).
The substantial evidence standard is a "very deferential standard of review," Brault v.
Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012), and the reviewing court "must be careful not
to substitute its own judgment for that of the Commissioner, even if it might justifiably have
reached a different result upon a de nova review." DeJesus v. Astrue, 762 F. Supp. 2d 673, 683
(S.D.N.Y. 2011) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991 )) (internal quotation
marks and alterations omitted). In other words, "once an ALJ finds facts, [a court] can reject
those facts 'only if a reasonable factfinder would have to conclude otherwise."' Brault, 683 F .3d
at 448 (emphasis omitted) (quoting Warren v. Shala/a, 29 F.3d 1287, 1290 (8th Cir. 1994)).
Commissioner's Determination of Disability
Under the Social Security Act, "disability" is defined 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)(l)(A); accord
42 U.S.C. § 1382c(a)(3)(A). Physical or mental impairments must be "of such severity that [the
individual] 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." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In general, when assessing a claimant's impairments and determining whether they meet
the statutory definition of disability, the Commissioner "must make a thorough inquiry into the
claimant's condition and must be mindful that 'the Social Security Act is a remedial statute, to be
broadly construed and liberally applied."' Mongeur, 722 F.2d at 1037 (quoting Gold v. Sec'y of
HE. W, 463 F.2d 38, 41 (2d Cir. 1972)); see also Williams v. Bowen, 859 F.2d 255, 260 (2d Cir.
1988). Specifically, the Commissioner's decision must take into account factors such as:
"(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." Mongeur, 722 F.2d at 1037
a. Five-Step Inquiry
The Commissioner's determination of disability follows a sequential, five-step inquiry.
Cichocki v. Astrue, 729 F.3d 172, 173 n.l (2d Cir. 2013) (quoting Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996). First, the Commissioner must establish whether the claimant is presently
employed. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not employed, at the second step the
Commissioner determines whether the claimant has a "severe impairment" restricting his ability
to work. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has a severe impairment, the
Commissioner moves on to the third step, considering whether the claimant has an impairment
that is listed in Appendix 1 to 20 C.F.R. Pt. 404, Subpt. P. 20 C.F.R. § 404.1520(a)(4)(iii). If so,
the Commissioner will find the claimant disabled. Id.; 20 C.F .R. § 404.1520(d). If not, the
Commissioner continues on to the fourth step, determining whether the claimant has the residual
functional capacity ("RFC") to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv).
Finally, ifthe claimant does not have the RFC to perform past relevant work, the Commissioner
completes the fifth step, ascertaining whether the claimant possesses the ability to perform any
other work. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant bears the burden of proving disability in steps one through four of the
sequential analysis. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). If the claimant is
successful, the burden shifts to the Commissioner on the fifth and final step, where she must
establish that the claimant has the ability to perform some work in the national economy. See
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
b. Duty to Develop the Record
"Social Security proceedings are inquisitorial rather than adversarial." Sims v. Apfel, 530
U.S. 103, 110-11 (2000). Consequently, "the social security ALJ, unlike a judge in a trial, must
on behalf of all claimants ... affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(internal quotation marks and citation omitted). As part of this duty, the ALJ must "investigate
the facts and develop the arguments both for and against granting benefits." Sims, 530 U.S. at
111. Specifically, under the applicable regulations, the ALJ is required to "develop a complete
medical record before making a disability determination." Pratts v. Chater, 94 F.3d 34, 37 (2d
Cir. 1996) (citing 20 C.F.R. § 404.1512(d)-(f)).
Whether the ALJ has met his duty to develop the record is a threshold question. Before
determining whether the Commissioner's final decision is supported by substantial evidence
under 42 U.S.C. § 405(g), "the court must first be satisfied that the ALJ provided plaintiff with 'a
full hearing under the Secretary's regulations' and also fully and completely developed the
administrative record." Scott v. Astrue, No. 09-cv-3999 (KAM), 2010 WL 2736879, at *12
(E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751,
755 (2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-cv-5782 (FB), 2003 WL 22709204,
at *3 (E.D.N.Y. Nov. 7, 2003) ("The responsibility of an ALJ to fully develop the record is a
bedrock principle of Social Security law.") (citing Brown v. Apfel, 174 F.3d 59 (2d Cir. 1999)).
This imperative remains in force even where the claimant is represented by counsel. Perez, 77
F.3d at 47.
c. Treating Physician's Rule
"Regardless of its source, the ALJ must evaluate every medical opinion in determining
whether a claimant is disabled under the [Social Security] Act." Pena ex rel. E.R. v. Astrue,
No. ll-cv-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (internal quotation
marks omitted) (citing 20 C.F.R. § 404.1527(d), 416.927(d)). However, a treating physician's
opinion is given controlling weight-that is, it is binding-provided the opinion as to the nature
and severity of an impairment "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); see Selian, 708 F.3d at 418 ("The opinion of a treating
physician on the nature or severity of a claimant's impairments is binding if it is supported by
medical evidence and not contradicted by substantial evidence in the record.") (citing Burgess,
537 F.3d at 128 and Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2d Cir. 2003)). The
regulations define a treating physician as the claimant's "own physician, psychologist, or other
acceptable medical source who provides [the claimant] ... with medical treatment or evaluation
and who has, or has had, an ongoing treatment relationship with [the claimant]." 20 C.F.R.
§ 404.1502. Deference to such a medical provider is appropriate because they "are likely to be
the medical professionals most able to provide a detailed, longitudinal picture of [the] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical evidence alone or from reports of individual examinations."
20 C.F.R. § 404.1527(c)(2).
Under certain circumstances, however, a treating physician's opinion will not be
controlling. For example, a legal conclusion "that the claimant is 'disabled' or 'unable to work'
is not controlling," because such opinions are reserved for the Commissioner. Guzman v. Astrue,
No. 09-cv-3928 (PKC), 2011WL666194, at *10 (S.D.N.Y. Feb. 4, 2011) (citing 20 C.F.R.
§§ 404.1527(e)(l), 416.927(e)(l)); accord Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("A
treating physician's statement that the claimant is disabled cannot itself be determinative.").
Additionally, where "the treating physician issued opinions that [were] not consistent with other
substantial evidence in the record, such as the opinion of other medical experts, the treating
physician's opinion is not afforded controlling weight." Pena ex rel. E.R., 2013 WL 1210932, at
*15 (quoting Halloran, 362 F.3d at 32) (internal quotation marks omitted) (alteration in
original); see also Snell, 177 F.3d at 133 ("[T]he less consistent [the treating physician's] opinion
is with the record as a whole, the less weight it will be given.").
Importantly, however, "[t]o the extent that [the] record is unclear, the Commissioner has
an affirmative duty to 'fill any clear gaps in the administrative record' before rejecting a treating
physician's diagnosis." Selian, 708 F.3d at 420 (quoting Burgess, 537 F.3d at 129); see Schaal v.
Apfel, 134 F .3d 496, 505 (2d Cir. 1998) (discussing ALJ' s duty to seek additional information
from treating physician if clinical findings are inadequate). As a result, "the 'treating physician
rule' is inextricably linked to the duty to develop the record. Proper application of the rule
ensures that the claimant's record is comprehensive, including all relevant treating physician
diagnoses and opinions, and requires the ALJ to explain clearly how these opinions relate to the
final determination." Lacava v. Astrue, No. l 1-cv-7727 (WHP) (SN), 2012 WL 6621731, at *13
(S.D.N.Y. Nov. 27, 2012) ("In this Circuit, the [treating physician] rule is robust."), report and
recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012).
To determine how much weight a treating physician's opinion should carry, the ALJ must
consider several factors outlined by the Second Circuit:
(i) the frequency of examination and the length, nature and extent of the treatment
relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the
consistency of the opinion with the record as a whole; (iv) whether the opinion is from a
specialist; and (v) other factors brought to the Social Security Administration's attention
that tend to support or contradict the opinion.
Halloran, 362 F.3d at 32 (citation omitted); see 20 C.F.R. § 404.1527(c)(2). If, based on these
considerations, the ALJ declines to give controlling weight to the treating physician's opinion,
the ALJ must nonetheless "comprehensively set forth reasons for the weight" ultimately assigned
to the treating source. Halloran, 362 F.3d at 33; accord Snell, 177 F.3d at 133 (responsibility of
determining weight to be afforded does not 'exempt administrative decisionmakers from their
obligation ... to explain why a treating physician's opinions are not being credited")
(referencing Schaal, 134 F.3d at 505 and 20 C.F.R. § 404.1527(d)(2)). 8 The regulations require
that the SSA "always give good reasons in [its] notice of determination or decision for the
weight" given to the treating physician. Clark v. Comm 'r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998) (alteration in original) (citations omitted). Indeed, "[c]ourts have not hesitate[d] to
remand [cases] when the Commissioner has not provided good reasons." Pena ex rel. E.R., 2013
WL 1210932, at *15 (quoting Halloran, 362 F.3d at 33) (second and third alteration in original)
(internal quotation marks omitted).
On March 26, 2012, a portion of 20 C.F.R. § 404.1527 was modified. The section that
described the factors for an ALJ to consider when deciding how to weigh a treating physician's
opinion was moved from subsection (d)(2) to (c)(2).
The courts leave it to the finder of fact to resolve any conflicts there may be in the
medical testimony, but the ALJ need not "reconcile explicitly every conflicting shred of medical
testimony." Galiotti v. Astrue, 266 F. App'x 66, 67 (2d Cir. 2008) (quoting Fiorello v. Heckler,
725 F.2d 174, 176 (2d Cir. 1983)). A court may not substitute its judgment so long as the
decision of the ALJ, and ultimately that of the Commissioner, "rests on adequate findings
supported by evidence having rational probative force." Galiotti, 266 F. App'x at 67 (quoting
Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)).
d. Claimant's Credibility
As to the credibility of a claimant, here, too, the reviewing court must defer to an ALJ' s
findings. Osorio v. Barnhart, No. 04-cv-7515 (DLC), 2006 WL 1464193, at *6 (S.D.N.Y. May
30, 2006). "In assessing a plaintiffs subjective claims of pain and other symptoms, the ALJ
must first determine that there are 'medical signs and laboratory findings which show that [the
claimant has] a medical impairment which could reasonably be expected to produce the pain."'
Vargas v. Astrue, No. 10-cv-6306 (PKC), 2011WL2946371, at *11 (S.D.N.Y. July 20, 2011)
(quoting Snell, 177 F.3d at 135 and 20 C.F.R. § 404.1529(a)). So long as the "findings are
supported by substantial evidence, the court must uphold the ALJ' s decision to discount a
claimant's subjective complaints of pain." Vargas, 2011WL2946371, at *11 (quoting Aponte v.
Sec'y of Health and Human Servs. of the US., 728 F.2d 588, 591 (2d Cir. 1984)). However,
these findings must "be set forth with sufficient specificity to permit intelligible plenary review
of the record." Pena v. Astrue, No. 07-cv-11099 (GWG), 2008 WL 5111317, at *10 (S.D.N.Y.
Dec. 3, 2008) (internal quotation marks omitted) (quoting Williams, 859 F.2d at 260-61).
Because subjective statements about symptoms alone may not establish a disability, the
ALJ follows a two-step analysis for evaluating assertions of pain and other limitations. Genier v.
Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(a)). First, the ALJ must
weigh whether "the claimant suffers from a medically determinable impairment that could
reasonably be expected to produce the symptoms alleged." Id. (citing 20 C.F.R. § 404.1529(b)).
If the answer to the first step of the analysis is yes, the ALJ proceeds to the second step,
considering "the extent to which [the claimant's] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence ofrecord." Id. (citing
20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). Because "an individual's
symptoms can sometimes suggest a greater level of severity of impairment than can be shown by
the objective medical evidence alone," the ALJ may take into account a variety of other
considerations as evidence. Pena, 2008 WL 5111317, at * 11 (citing SSR 96-7p, 1996 WL
374186, at *3 (SSA July 2, 1996)). These include: a claimant's daily activities; the location,
duration, frequency, and intensity of the claimant's pain or other symptoms; factors that
aggravate the symptoms; treatment and medication necessitated by the pain or other symptoms
and their effects; other alleviating measures taken by the claimant; and other factors that relate to
the claimant's functional limitations and restrictions stemming from pain or other symptoms. Id.
(citing SSR 96-7p, 1996 WL 374186, at *3 (SSA July 2, 1996)).
B. The ALJ's Decision
In his July 17, 2012 decision, ALJ Rodriguez determined that Intonato did not meet the
statutory definition of disability under the Social Security Act, and therefore denied Intonato' s
DIB claims. Rec. at 29. Following the five-step inquiry into disability, the ALJ first determined
that Intonato had not been engaged in substantial gainful activity since June 14, 2010, the date
Intonato claimed as the start of his disability. Id. at 25. At step two, the ALJ found that Intonato
had the following severe impairments: obstructive sleep apnea, obesity, a right abdominal
incisional hernia, and degenerative disc disease of the cervical and lumbosacral spine. Id.
However, at step three, the ALJ determined that none of these impairments met or were
medically equal to the severity of any of the impairments listed in Appendix 1 of 20 C.F .R. Part
404, Subpart P. Id. at 26.
The ALJ then moved on to step four, and found that, while Intonate retained the RFC for
the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a), he was unable to perform
his past relevant work as an ophthalmic technician. Id. at 26-28. In reaching this conclusion, the
ALJ gave substantial credence to consultative psychologist Dr. Helprin, and partial credence to
Dr. Corvalan, the consultative physician, and to Intonato's treating physician, Dr. Strassberg. Id.
at 28. Dr. Strassberg's medical opinion received only partial credence because the ALJ
identified internal inconsistencies in the doctor's reports and as compared to Dr. Corvalan's
findings. Id. The ALJ did not mention Dr. Menitove when evaluating the medical opinion
evidence. Id. The ALJ also determined that Intonato's "statements concerning the intensity,
persistence and limiting effects of [his] symptoms [were] not fully credible." Id. at 28. In
particular, the ALJ noted that Intonato's characterization of his disability was belied by his
chosen courses of treatment, his description of his symptoms, and his "activities of daily living."
Id. at27. 9
The ALJ appears to have based his determination oflntonato's credibility, in part, on two
misstatements or mischaracterizations of the record regarding the nature of Intonate' s
treatments. First, the ALJ wrote that Intonate "relies solely upon over-the-counter medications
for allevations [sic] of his pain" and has not received any injections for his neck and back pain,
Rec. at 27; however, Dr. Corvalan noted that Intonate had been treated with "an epidural
injection, only one so far," id. at 344. The ALJ also characterized Intonato's sleep apnea
treatment as conservative, id. at 27, even though Intonate underwent surgery to alleviate his
OSA, id. at 237, 366. Courts in this Circuit typically do not consider surgical procedures to be
conservative treatment. See, e.g., Shaw v. Chater, 221F.3d126, 134-35 (2d Cir. 2000)
(distinguishing between conservative therapies and "surgery or prescription drugs"); Cohen v.
Astrue, No. 07-cv-535 (DAB) (HBP), 2011 WL 2565659, at *21 (S.D.N.Y. May 17, 2011)
(plaintiff was "prescribed only conservative treatment ... and surgery was never
recommended"), report and recommendation adopted, 2011 WL 2565309 (S.D.N.Y. June 28,
2011). Moreover, Intonate contends that the ALJ also should have considered his obesity,
At the fifth and final step, the ALJ concluded that, taking into consideration Intonato' s
age, education, work experience, and RFC, a significant number of jobs that Intonato could
perform existed in the national economy. Id. at 29.
The ALJ Did Not Fully Develop the Administrative Record
The ALJ erred by failing to fully develop the evidentiary record with regard to the
medical opinions of Intonato' s two treating physicians, Drs. Strassberg and Menitove. While the
ALJ identified inconsistencies in Dr. Strassberg's medical opinion, he did not seek additional
information from Dr. Strassberg in an effort to resolve these inconsistencies. Furthermore, the
record does not reflect that the ALJ made any effort to solicit Dr. Menitove's medical opinion
after receiving the doctor's medical records and a blank medical questionnaire.
a. Dr. Strassberg
The ALJ accorded Dr. Strassberg's opinion "partial credence" in light of an inconsistency
in the doctor's report. Specifically, the ALJ noted that Dr. Strassberg's conclusion in his April
2011 report that Intonato could sit for less than six hours per day and stand/walk for less than
two hours per day was inconsistent with the doctor's finding in the March 2012 questionnaire
that Intonato had "moderate limitations" in these activities. Id. at 28. In its brief, the
Commissioner highlights another inconsistency within Dr. Strassberg's April 2011 report
regarding Intonato's ability to push and pull. Def. Mem. at 19-20 (citing Rec. 300-01).
particularly his significant weight gain, in the context of evaluating Intonato' s sleep apnea as
the two diseases are correlated. PL Mem. at 5-6, 13-14. However, as the ALJ correctly noted,
Intonato's sleep apnea and weight gain are both "long-standing in nature" and predate
Intonato's alleged disability onset date. Rec. at 27-28; see also Briscoe v. Astrue, 892
F. Supp. 2d 567, 582 (S.D.N.Y. 2012) (medical evidence predating alleged onset date generally
not relevant) (citing cases).
In identifying an inconsistency within Dr. Strassberg's reports, the ALJ "triggered an
obligation to take further steps to develop evidence that could resolve such an ambiguity."
Serrano v. Colvin, No. 12-cv-7485 (PGG) (JLC), 2014 WL 197677, at *15 (S.D.N.Y. Jan. 17,
2014). "When an ALJ perceives inconsistencies in a treating physician's report, the ALJ bears
an affirmative duty to seek out more information from the treating physician and to develop the
administrative record accordingly ... by making every reasonable effort to re-contact the
treating source for clarification of the reasoning of the opinion." Toribio v. Astrue, No. 06-cv6532 (NGG), 2009 WL 2366766, at *10 (E.D.N.Y. July 31, 2009) (quoting Hartnett v. Apfel, 21
F. Supp. 2d 217, 221 (E.D.N.Y. 1998) and Taylor v. Astrue, No. 07-cv-3469, 2008 WL 2437770,
at *3 (E.D.N.Y. June 17, 2008)) (internal quotation marks omitted). "The ALJ should seek such
information when a medical report contains a conflict or ambiguity that must be resolved, [or]
the report is missing necessary information." Toribio, 2009 WL 2366766, at * 10 (citing 20
C.F.R § 404.1 512(e)(l)); see also Rivera v. Barnhart, 379 F. Supp. 2d 599, 604 (S.D.N.Y.
2005). If necessary, the ALJ must act sua sponte in order to fulfill this duty. Schaal, 134 F.3d at
505; see also Perez, 77 F.3d at 47 ("duty exists even when the claimant is represented by
Rather than contact Dr. Strassberg or otherwise "seek out clarifying information
concerning the perceived inconsistencies," Clark, 143 F.3d at 118 (internal quotation marks
omitted), the ALJ merely noted that the report was inconsistent. Rec. at 28. He then used this
determination to justify giving only partial credence to Dr. Strassberg's opinion, rejecting out of
hand the portion of Dr. Strassberg's report that did not comport with a finding of "no disability,"
that is, the determination that Intonato could not sit for six hours and stand/walk for two hours
during an eight-hour work day. Had the ALJ contacted Dr. Strassberg for clarification, the
doctor "might have been able to provide a medical explanation," Clark, 143 F.3d at 118, for the
perceived inconsistency, perhaps by elucidating his personal definition of "moderate limitations"
or by identifying changes in lntonato's symptoms between his April 2011 and March 2012
reports. Without further development of the record, the ALJ could not properly determine what
weight to assign Dr. Strassberg's opinion. See Serrano, 2014 WL 197677, at *15; Rosa v.
Callahan, 168 F .3d 72, 79 (2d Cir. 1999).
b. Dr. Menitove
The ALJ similarly failed to solicit additional information from Dr. Menitove, who treated
Intonato for 13 years. Rec. at 154, 361. During this time Dr. Menitove treated Intonato for
respiratory issues, performed pulmonary function tests, and referred Intonato to various
specialists for treatment and testing. Id. at 154, 230-262, 359-369, 400-401, 406. At his
administrative hearing, Intonato testified that Dr. Menitove was one of his treating physicians.
Id. at 68-69. In light of this testimony and the length of Dr. Menitove's treating relationship with
Intonato, the ALJ should have considered Dr. Menitove one oflntonato' s treating physicians, see
20 C.F .R. § 404.1502, and accordingly, should have given his opinion controlling weight (or less
weight ifthe record so dictated). See 20 C.F.R. § 404.1527(c)(2); Burgess, 537 F.3d at 128;
Halloran, 362 F.3d at 32. However, in his discussion oflntonato's various treating and
consultative physicians, the ALJ did not evaluate Dr. Menitove's medical opinion, Rec. at 28,
perhaps because Dr. Menitove did not complete the medical questionnaire sent to him, id. at 30521. Dr. Menitove did, however, submit medical records reflecting his treatment and
contemporaneous assessments of Intonato, id. at 230-62, to which the ALJ cited in his opinion,
id. at 22-23.
To the extent the ALJ believed that, to fully evaluate the doctor's opinion, he needed a
completed questionnaire from Dr. Menitove in addition to the primary source records, the ALJ
had an obligation to seek out more information from Dr. Menitove. The relevant regulations
provide that "the lack of the medical source statement will not make [a medical] report
incomplete." 20 C.F.R. § 416.913(b)(6). However, "the Second Circuit requires the ALJ 'to
seek additional information from [the treating physician] sua sponte.' Therefore, although there
may be cases in which a treating source opinion is unavailable, the ALJ must make a reasonable
effort to obtain such an opinion." Molina v. Barnhart, No. 04-cv-3201 (GEL), 2005 WL
2035959, at *6 (S.D.N.Y. Aug. 17, 2005) (quoting Clark, 143 F.3d at 118) (alteration in original)
(internal citation omitted). The record does not reflect that the ALJ requested a medical opinion
from Dr. Menitove in a format the ALJ may have found more useful. Given the potential
importance of Dr. Menitove's opinion as Intonato's longstanding treating physician and the
perceived inconsistency and ambiguity of Dr. Strassberg's report, the ALJ should have asked
Dr. Menitove to supplement his records with an additional assessment of Intonate. See Umansky
v. Apfel, 7 F. App'x 124, 127 (2d Cir. 2001) (remanding case for ALJ's failure to obtain medical
source opinions to corroborate a rejected opinion); see also Rosa, 168 F.3d at 79 ("[A]n ALJ
cannot reject a treating physician's diagnosis without first attempting to fill any clear gaps in the
While an ALJ generally has "the authority to weigh various medical opinions and choose
between them," Scott, 2010 WL 2736879, at *16 (internal quotation marks omitted), here the
ALJ' s failure to appropriately develop the record with respect to the opinions of Drs. Strassberg
and Menitove (which are particularly important as they are treating physicians) led him to render
a determination based on an incomplete record. See, e.g., id. at * 13-14 (declining to uphold ALJ
decision where ALJ failed to seek out treating physician's reports and seek clarification about
ambiguous report from other doctor); Toribio, 2009 WL 2366766, at * 10 (remanding case for, in
part, ALJ' s failure to contact treating physician again to clarify an ambiguity in report on
claimant's disability status). Where such gaps in the administrative record exist, a remand to the
ALJ is necessary to fully develop the evidence. See, e.g., Rosa, 168 F.3d at 82-83 (citing Pratts,
94 F.3d at 39).
The ALJ Failed to Provide Good Reasons for Assigning Partial Credence to
Dr. Strassberg's Opinion
It is an ALJ's "prerogative to assign an appropriate weight to the treating physician's
opinion based on a review of the entire evidentiary record." Serrano, 2014 WL 197677, at* 16.
However, an ALJ must "meet his obligation of comprehensively setting forth good reasons to
explain that determination." Id.; see also Snell, 177 F.3d at 133. In so doing, an ALJ should be
guided by the factors detailed by the Second Circuit. See Halloran, 362 F.3d at 32; 20 C.F.R.
§ 404.1527(c)(2). Here, although the ALJ considered the perceived inconsistency of one aspect
of Dr. Strassberg's March 2012 opinion with the doctor's own earlier opinion and that of
Dr. Corvalan, the ALJ failed to set forth any other "good reasons" for discounting
Dr. Strassberg's opinion.
For example, the ALJ did not discuss the length, nature, and extent of Dr. Strassberg's
relationship with Intonato. The ALJ never acknowledged that Intonato had been Dr. Strassberg's
patient from April 2011 until at least March 2012, nor did he attempt to establish the nature or
extent of Dr. Strassberg's treatment oflntonato. Rec. at 28. Such information might have
influenced how the ALJ valued Dr. Strassberg's opinions, especially when weighed against the
opinions of Drs. Corvalan and Helprin, both of which were based on single, isolated consultative
examinations. Without even a cursory comparison of these basic details, the ALJ failed to
explain how he arrived at the weight given to Dr. Strassberg's opinion relative to the other
professionals. See Guzman, 2011 WL 666194, at * 14 (ALJ did not have "good reason" to
discredit medical opinion where there was "uncertainty regarding the nature of the treatment
relationship"). In order to clarify this determination, the ALJ "should have considered,
discussed, and compared the details of the treatment relationships between each physician and
the plaintiff." Scott, 2010 WL 2736879, at *17 (citing 20 C.F.R. §§ 404.1527(d)(2),
4 l 6.927(d)(2)).
The ALJ's decision also does not reflect whether he took into account the specializations
of Drs. Strassberg and Corvalan, failing to mention their respective fields or how their particular
expertise might impact the value of their opinions. See, e.g., Clark v. Astrue, No. 08-cv-10389
(LBS), 2010 WL 3036489, at *4 (S.D.N.Y. Aug. 4, 2010) (legal error where ALJ did not
consider whether opinion was from specialist); Veresan v. Astrue, No. 06-cv-5195 (JG), 2007
WL 1876499, at *5 (E.D.N.Y. June 29, 2007) (remanding case because, in part, ALJ did not
indicate what weight, if any, was assigned based on fact that medical opinions were from
specialists). If either Dr. Strassberg or Dr. Corvalan were found to have expertise in treating the
kind of pain and movement limitations alleged by Intonato, this fact would have been relevant to
the ALJ's determination of the weight to accord to their respective evaluations.
The only factor that the ALJ discussed explicitly when explaining his decision to
discount Dr. Strassberg's opinion was its inconsistency with the record. However, the ALJ gave
short shrift to this analysis. Rec. at 28. He identified only one purported inconsistency and
appears not to have considered whether Dr. Strassberg's opinion was otherwise consistent with
the record. Moreover, the ALJ discussed the single inconsistency in a conclusory manner, noting
that Dr. Strassberg's April 2011 assessment that Intonato was unable to "sit for six hours or
stand/walk for less than 2 hours do not comport with the doctor's own [March 2012]
characterizations of moderate limitations in these activities." Id The ALJ further noted that
Dr. Strassberg's assessment was "inconsistent with the examination findings as noted by
Dr. Corvalan," id., namely, that Intonato had a "moderate limitation for sitting and standing for
long periods of times [and] walking long distance." Id. at 347. In other words, the ALJ found
that Dr. Strassberg's and Dr. Corvalan's separate characterizations oflntonato as having
"moderate limitations" conflicted with Dr. Strassberg's April 2011 finding regarding Intonato's
ability to sit, stand, and walk.
However, as Intonato notes, the ALJ's opinion provides "no further explanation of what
[moderate limitation] means." Pl. Mem. at 11. Nor does Dr. Corvalan's use of the phrase
"moderate limitation" provide further clarity. Rec. at 347. The ALJ's failure to explain why he
believed that Dr. Strassberg's finding of moderate limitation was inconsistent with his earlier
opinion is of particular concern given that, on the March 2012 form, Dr. Strassberg was forced to
characterize each oflntonato's functional limitations as either "very limited," "moderately
limited," or "no evidence of limitations." Id. at 372. Contrary to Intonato's assertion, it is not
necessarily the case that, "[r]egardless of how you define 'moderate'," it is false that "the
inability to sit for six hours does not comport with a 'moderate' limitation." Pl. Mem. at 12.
However, because the March 2012 form provided only three levels of functional limitation, there
are reasonable interpretations of "moderately limited" that would encompass the type of
limitations Dr. Strassberg listed in his April 2011 report. 10
In accord with this argument, Intonato contends that the ALJ misstated the record in his
finding that Intonato has the ability to perform the full range of sedentary work because it is
inconsistent with the medical reports of Drs. Strassberg and Corvalan, both of which describe
Intonato's limitations as "moderate." Pl. Mem. at 11. Because the Court finds that the ALJ
Given the importance the ALJ placed on the ambiguous phrase "moderate limitations" for
purposes of discrediting a treating physician's opinion, the ALJ needed to explain how he arrived
at his conclusion. However, the ALJ provided no analysis beyond the conclusory statement that
the opinions were inconsistent. "This bare and conclusory analysis constituted error." Serrano,
2014 WL 197677, at *17; accord Knight v. Astrue, No. 10-cv-5301(BMC), 2011WL4073603,
at *10 (E.D.N.Y. Sept. 13, 2011) (ALJ failed to provide good reasons where ALJ "selectively
harnessed medical evidence ... without further elaboration or clarification"). "It is this very
conflict that necessitates an explanation of why [Intonato' s] opinions were not credited over the
doctors with contrary opinions." Duncan, 2011 WL 1748549, at* 18.
The ALJ's decision demonstrates that, when evaluating Dr. Strassberg's opinion, he
failed to consider and comprehensively set forth the factors needed to guide his decision to
accord a treating physician less than controlling weight. See Halloran, 362 F.3d at 32-33.
Therefore, Intonato's case is remanded to the ALJ. See Snell, 177 F.3d at 133 ("Failure to
provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a
ground for remand.") (citing Schaal, 134 F.3d at 505).
For the foregoing reasons, Intonato's motion for judgment on the pleadings is granted,
the Commissioner's cross-motion is denied, and the case is remanded to the ALJ pursuant to
sentence four of 42 U.S.C. § 405(g). Specifically, on remand, the ALJ should:
failed to develop the record and sufficiently explain his reasons for according less than
controlling weight to Dr. Strassberg's opinion, it is unnecessary to reach the question as to
whether moderate limitations and sedentary work are mutually exclusive.
Request from Dr. Strassberg an explanation and clarification concerning the
ambiguities and/or inconsistencies identified within the April 2011 medical report, and between
the April 2011 and March 2012 reports;
Provide a clear and comprehensive definition of what the ALJ understands the
word "moderate" to mean when applied to functional limitations;
Determine what weight should be given to Dr. Strassberg's opinion, if it is not
deemed to be controlling, based on the appropriate factors outlined above and provide a clear and
comprehensive statement of the reasons for reaching this decision;
Obtain from Dr. Menitove a completed medical questionnaire or similar
testimony regarding Intonato's symptoms and functional limitations;
Determine what weight should be given to Dr. Menitove's opinion, if it is
acquired and not deemed to be controlling, based on the appropriate factors outlined above and
provide a clear and comprehensive statement of the reasons for reaching this decision; and
Reevaluate Intonato's credibility based on an accurate characterization of his
treatment and this further development of the record, as described above.
The Clerk of the Court is directed to close docket entries 15 and 22.
Dated: New York, New York
August 7, 2014
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