Moreira v. Commissioner of Social Security

Filing 27

MEMORANDUM OPINION AND ORDER re: 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security, 16 CROSS MOTION for Judgment on the Pleadings filed by Arturo V. Moreira. The Court has considered all of the arguments o f the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the reasons explained above, the plaintiff's cross-motion for judgment on the pleadings is granted, and the defendant� 39;s cross-motion is denied. The Commissioner's decision is vacated and this case is remanded to the Commissioner for further proceedings in accordance with this opinion. The Clerk is directed to enter judgment and to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 9/15/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ARTURO MOREIRA,
13 Civ. 4850 (JGK)
Plaintiff,
MEMORANDUM OPINION AND
ORDER

- against CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Arturo Moreira, brought this action to seek
review of a final decision of the defendant, the Commissioner of
Social Security (the “Commissioner”), that the plaintiff was not
entitled to Disability Insurance Benefits (“DIB”) and Social
Security Income (“SSI”).

The plaintiff filed applications for DIB

and SSI on April 8, 2011, alleging that he became unable to work
on April 1, 2009.

The plaintiff complained of meniscal tears in

both knees and back pain.
denied on June 24, 2011.
on July 1, 2011.

(Tr. 221.)

His claims were initially

He filed a written request for a hearing

The Administrative Law Judge (“ALJ”) held a

hearing on October 25, 2011, and denied the plaintiff’s claims on
October 31, 2011.

After the Appeals Council declined review on

June 21, 2013, the decision of the ALJ became the final decision
of the Commissioner.

The parties have filed cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.

I.
The administrative record contains the following facts.
The plaintiff, born December 8, 1966 and aged 42 at the time
he sustained the alleged disability, worked as a factory worker,
electrician, and clothing pattern inspector.

(Tr. 197, 228.)

He

worked as a pattern inspector from 1999 until 2008, when he was
laid off.

(Tr. 35, 56, 202.)

The plaintiff’s knee problems began with arthroscopic knee
surgery on his right knee due to meniscal tears after a fall in
2003.

(Tr. 268-69, 271-73.)

An X-ray of the left knee on

December 6, 2010 revealed minimal narrowing of the medial
tibiofemoral joint compartment. (Tr. 338-39.)

An MRI of the left

knee on March 8, 2011 revealed a complex tear of the body of the
medial meniscus.

(Tr. 277-78.)

On March 9, 2011, the plaintiff

visited Dr. Mark Silverman at St. Barnabas Hospital; Dr. Silverman
evaluated the plaintiff’s left knee and the MRI.

(Tr. 337-38.)

Dr. Silverman noted the plaintiff’s difficulty in walking and
running and diagnosed a left knee medial meniscus tear; Dr.
Silverman then recommended arthroscopic surgery on the plaintiff’s
left knee.

(Tr. 337-38.)

2

On March 24, 2011, Dr. Manuel Erroa, the plaintiff’s primary
care physician, examined the plaintiff and found chronic sinusitis
and fatty liver disease from alcohol abuse.

(Tr. 283.)

On March

31, 2011, Dr. Silverman performed arthroscopic knee surgery on the
plaintiff’s left knee, with a partial medial menisectomy and a
major synovectomy.

(Tr. 290-91.)

Following the surgery, the

plaintiff was required to undergo eight weeks of physical therapy.
(Tr. 307.)

Treatment records available to the ALJ showed that the

plaintiff attended weekly physical therapy from at least April 06,
2011 to August 2, 2011, and again from September 19, 2011 to
October 12, 2011.

(Tr. 308-25, 348-57, 361.)

The plaintiff filed applications for SSI and DIB on April 8,
2011, alleging that he became unable to work on April 1, 2009.
(Tr. 66-67, 175-76, 177-85.)

A wellness report dated June 1, 2011

from Dr. Silverman (signed by Dr. Adeleke) noted pain and
tenderness in the left knee and recommended six more weeks of
physical therapy: the report stated that the plaintiff would be
temporarily unemployable for two months.

(Tr. 321-22.)

In the

space on the form for identifying limitations or explanations, it
was noted that the plaintiff was receiving “physical therapy to
strengthen the knee and improve the range of motion.”

(Tr. 321-

22.)
On June 10, 2011, Dr. Vinod Thukral performed a consultative
internal medicine examination at the request of the Commissioner.
(Tr. 293-96.)

He noted normal gait with or without a cane,
3

ambulation without assistance during examination, normal range of
motion in all joints bilaterally, and strength of 5/5 in the upper
and lower extremities.

(Tr. 294-295.)

Based on this examination

Dr. Thukral concluded that the plaintiff was capable of lifting 50
pounds occasionally, carrying 25 pounds frequently, walking six to
eight hours a day, pushing, pulling, sitting, standing, “or any
other such related activities,” without limitation other than a
moderate limitation on squatting and a need to avoid environmental
irritants due to asthma.

(Tr. 296, 298, 300.)

On July 27, 2011, the plaintiff returned to Dr. Silverman
complaining of pain in his left knee and back and requesting more
physical therapy for his knee.

(Tr. 341-45.)

The report from the

visit noted abnormal range of motion, tenderness, and pain on
palpation, and Dr. Silverman prescribed six more weeks of physical
therapy and a follow-up in six weeks.

(Tr. 341-42.)

An

orthopedic note from the St. Barnabas Hospital Orthopedic Clinic
dated August 10, 2011, indicates that disability papers were
filled out with a prospective return to work date of September 19,
2011.

(Tr. 378.)

The plaintiff subsequently returned to the

clinic on September 7, 2011, stating that he had insurance issues
with the physical therapy, but requesting more therapy, and noting
continued back pain.

(Tr. 343.)

The report from the visit noted

abnormal range of motion secondary to pain in the left knee, and,
in addition to repeating earlier findings, obvious crepitus.
343.)

(Tr.

Dr. Silverman again ordered continued physical therapy for
4

six weeks to strengthen the range of motion and modalities, a
prescription of Mobic for pain and a follow up in twelve weeks.
(Tr. 343, 345.)

A lumbar X-ray on September 12, 2011 suggested no

significant findings.

(Tr. 346.)

On October 21, 2011, Dr. Regina Gurerich examined the
plaintiff and assessed his residual functional capacity (“RFC”).
(Tr. 372-73.)1

She diagnosed him with bilateral knee internal

derangement and lumbar IVD syndrome with neuropathy, following
left knee arthroscopy, and stated that his prognosis was poor.
(Tr. 370-73.)

With respect to the plaintiff’s RFC, Dr. Gurerich

concluded that the plaintiff could not sit or stand for more than
an hour a day, could not carry or lift over five pounds, and
needed assistance ambulating.

(Tr. 372-73.)

She also concluded

that he had marked limitations in grasping, manipulating, and
reaching objects and could not push, pull, kneel, bend, and stoop,
and that these limitations might have begun as early as 2008.
(Tr. 373-74, 377.)
After the plaintiff’s claims were initially denied on June
24, 2011, he filed a request for hearing on July 1, 2011, and a
hearing was held on October 25, 2011 before the ALJ.

(Tr. 30.)

The plaintiff appeared with his attorney and with the aid of a
Spanish interpreter.
1

(Tr. 47.)

The plaintiff testified that he

Residual functional capacity is an assessment of an individual’s
ability, despite the individual’s impairment, to meet physical,
mental, sensory and other demands of jobs based on all relevant
evidence. 20 C.F.R. § 416.945; see also Villanueva v. Barnhart,
No. 03cv9021, 2005 WL 22846, at *6 n.7 (S.D.N.Y. Jan. 5, 2005).
5

was single, living alone, and depended on his sister for most
meals, cleaning, and grocery shopping.

(Tr. 50, 54.)

He stated

that, despite having looked for work until his second operation,
he had not worked since being terminated in April 2008.
56.)

(Tr. 50,

He also stated that he had recently seen Dr. Silverman, his

primary physician Dr. Erroa, a physical therapist, as well as a
general practitioner.

(Tr. 56-57.)

At the hearing, the ALJ asked

the plaintiff’s attorney whether there were any additional
documents to be submitted at the time, and the attorney
represented that there were not.

(Tr. 63.)

On October 31, 2011 the ALJ issued his decision denying the
benefits.

(Tr. 30.)

The ALJ found that the plaintiff did not

currently engage in substantial gainful activity.

(Tr. 32.)

The

ALJ further found, based on the plaintiff’s impairments with
respect to his knees, liver, back, and asthma, that the plaintiff
had “severe impairments” which limited his mental or physical
ability to do basic work activities.

(Tr. 32.)

However, the ALJ

found that these impairments were not the same as or equal to any
listed impairment entitling the plaintiff to the benefits.

(Tr.

32-33.)
With respect to the plaintiff’s RFC, the ALJ concluded that
the plaintiff had the capacity to perform “sedentary work” with
nonexertional limitations of 1) “only occasional stooping and
crouching” and 2) a need for avoidance of “concentrated exposure
to irritants such as dust and smoke.”
6

(Tr. 33-34.)

The ALJ

mentioned Dr. Silverman’s treatment of the plaintiff, the
plaintiff’s statement that he recently completed physical therapy,
and Dr. Erroa’s opinion on the plaintiff’s liver issues; however,
the ALJ discounted the credibility of Dr. Gurerich’s RFC
assessment, and assigned great weight to the RFC assessment of Dr.
Thukral.

(Tr. 34-35.)

The ALJ found that the plaintiff’s

subjective reports of impairments were not entirely credible,
noting especially that the plaintiff did not appear to need a cane
to ambulate at the hearing.

(Tr. 35.)

The ALJ then found that the plaintiff could perform his past
relevant work and therefore was not disabled.

(Tr. 35.)

The ALJ

further found that the plaintiff was not disabled because his
nonexertional limitations did not significantly limit the scope of
“sedentary work” available.

(Tr. 36-37.)

The ALJ, relying on the

medical vocational guidelines (“the grids”), found that work that
the plaintiff was capable of performing existed in significant
numbers in the national economy.

(Tr. 36-37.)

The ALJ thus found that the plaintiff was not disabled within
the meaning of the Social Security Act and denied both the DIB
claim and the SSI claim.

(Tr. 37.)

The plaintiff appealed to the

Appeals Council and submitted several new pieces of evidence
including medical records showing that he had undergone additional
treatment after he submitted his application.

(Tr. 378-429.)

Those records included evidence of physical therapy treatments as
late as May, 2012.

(Tr. 409.)

The records also included
7

additional wellness reports from Dr. Silverman including a report
dated April 3, 2012, which noted that the plaintiff was
temporarily unemployable due to lower back pain and problems with
his knee.

(Tr. 419.)

The Appeals Council declined review of the

plaintiff’s claims, noting that the additional evidence mostly
addressed the time period after the ALJ’s decision on October 31,
2011.

(Tr. 2.)

The ALJ’s determination became final, and the

appeal to this Court ensued.

II.
A court may set aside a determination by the Commissioner
only if it is based on legal error or is not supported by
substantial evidence in the record.

See 42 U.S.C. § 405(g); Berry

v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)
(citations omitted).

Substantial evidence is “more than a mere

scintilla”; it is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v
NLRB, 305 U.S. 197, 229 (1938)) (internal quotation marks
omitted); see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.
1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).
The definition of “disabled” is the same for DIB and SSI.
See Barnhart v. Walton, 535 U.S. 212, 214 (2002).

A claimant

seeking DIB or SSI is considered disabled if the claimant is
unable “to engage in any substantial gainful activity by reason of
8

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); accord 42 U.S.C.

§ 1382c(3)(A).
The analytical framework for evaluating claims of disability
for DIB and SSI is defined by regulations of the Commissioner as a
five-step inquiry:
1. The Commissioner considers whether the claimant is currently
engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a
“severe impairment” which limits the claimant’s mental or
physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner
must determine, based solely on medical evidence, whether the
claimant has an impairment listed in Appendix 1 of the
regulations.

If so, the Commissioner will consider the

claimant disabled, without considering the vocational factors
of age, education, and work experience.
4. If the impairment is not listed in the regulations but is
determined to be a severe impairment, the Commissioner will
determine the claimant’s RFC and, based on that determination,
ask whether, despite the claimant’s severe impairment, the
claimant can perform the claimant’s past work.

9

5. If the claimant is unable to perform such past work, the
Commissioner then determines whether there is other work which
the claimant could perform.
See 20 C.F.R. §§ 404.1520(a), 416.920(a); see also Shaw v. Chater,
221 F.3d 126, 132 (2d Cir. 2000).
When employing this five step process, the Commissioner must
consider four factors in determining a claimant’s entitlement to
benefits: “(1) the objective medical facts; (2) diagnoses of
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)

(internal quotation marks and citation omitted).
The claimant bears the initial burden of proving that the
claimant is disabled within the meaning of the Social Security
Act.

See Shaw, 221 F.3d at 132.

If the claimant satisfies the

burden of proof through the fourth step, the claimant has
established a prima facie case and the burden of proof shifts to
the Commissioner at the fifth step.

Id.

III.
However, before considering whether the ALJ’s conclusions are
supported by substantial evidence, the Court must first be
satisfied that the claimant has had a full and fair hearing under
the Social Security Act.

Echevarria v. Sec’y of Health & Human
10

Servs., 685 F.2d 751, 755 (2d Cir. 1982).

The Act must be

liberally applied because it is a remedial statute intended to
include rather than exclude.

Dixon v. Shalala, 54 F.3d 1019, 1028

(2d Cir. 1995).
In a proceeding to determine whether a claimant is disabled,
the ALJ has an affirmative duty to develop the administrative
record.

Echevarria, 685 F.2d at 755 (citations omitted); see also

Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (“[W]here there
are deficiencies in the record, an ALJ is under an affirmative
obligation to develop a claimant’s medical history.”).

“This duty

arises from the Commissioner’s regulatory obligations to develop a
complete medical record before making a disability determination,
and exists even when . . . the claimant is represented by
counsel.”

Avila v. Astrue, 933 F. Supp. 2d 640, 653-54 (S.D.N.Y.

2013) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).
In particular, with respect to the treating physician
records, the governing statute provides that the Commissioner
“shall make every reasonable effort to obtain from the
individual’s treating physician (or other treating health care
provider) all medical evidence, including diagnostic tests,
necessary in order to properly make” the disability determination
before evaluating medical evidence obtained from any other source
on a consultative basis.

42 U.S.C. § 423(d)(5)(B); see 42 U.S.C.

§ 1382C(3)(H)(i); see also Rosa, 168 F.3d at 79-80 (holding that
the ALJ erred in failing to satisfy his duty in a DIB case to
11

develop the record where he did not obtain further treatment
records from a treating physician and other treatment sources
including a physical therapist and orthopedist, before relying on
the opinion of consulting physicians); Clark v. Comm’r of Soc.
Sec., 143 F.3d 115, 118 (2d Cir. 1998) (concluding that there was
a serious question as to whether the ALJ satisfied his duty to
develop the record in an SSI case); Torres v. Comm’r of Soc. Sec.,
No. 13cv730, 2014 WL 406933, at *4-5 (S.D.N.Y. Feb. 3, 2014)
(holding that the ALJ failed to develop the record where he failed
to follow up after asking for treatment notes and functional
analysis from an identified primary treating physician).
The plaintiff contends that the ALJ committed legal error
before reaching the five step analysis because the ALJ failed to
develop the record as required.

Specifically, the plaintiff

argues that the ALJ did not obtain records, reports, and RFC
evaluations from the plaintiff’s treating physicians.1

1

In this case, much of the evidence that the ALJ allegedly failed
to obtain pertained to treatment and physical therapy occurring
between filing of the application on April 8, 2011 and the ALJ’s
decision on October 31, 2011. The duty to develop medical records
normally extends only to obtaining medical history for at least
the twelve months preceding the month of application. 20 C.F.R.
§§ 404.1512(d), 416.912(d). Whether the ALJ has a duty to develop
the record with respect to treating sources after the date of
filing is not settled and may depend on the facts of the case.
Compare Brown v. Comm’r of Soc. Sec., 709 F. Supp. 2d 248, 257
(S.D.N.Y. 2010) (“[T]he duty to develop the record extends only
with respect to the 12–month period prior to the filing date of
the claimant’s application for benefits.” (citations and internal
quotation marks omitted)), with Pettey v. Astrue, 582 F.Supp.2d
434, 437 (W.D.N.Y. 2008) (holding that the ALJ’s failure to
develop the record for the period that elapsed between the
12

The plaintiff identified Dr. Silverman as a major treating
source within the twelve months before the plaintiff filed his
application.

(Tr. 56-57.)

Dr. Silverman operated on the

plaintiff’s impaired left knee and ordered physical therapy
several times.

(Tr. 56, 290-91, 341-43.)

Even though the

wellness report from Dr. Silverman indicated limited range of
motion, the report did not elaborate on this finding’s impact on
the plaintiff’s ability to work, where such information could have
been material to determining the plaintiff’s RFC and limitations.
(Tr. 321-22.)

The plaintiff also identified Dr. Erroa as his

plaintiff’s application and hearing date constituted legal error).
As explained more fully below, the facts of this case support
applying the affirmative duty to the period after the submission
of the application, particularly because the plaintiff had surgery
in the month immediately preceding the application, and because
the plaintiff underwent ongoing physical therapy and other
treatments after the plaintiff submitted his application. (Tr.
34-35.) Moreover, the ALJ relied heavily on a consultative
physician’s report that was based on an examination on June 10,
2011 and was post-application evidence. (Tr. 34.) This further
supports the need to obtain treating physicians’ evaluations from
the same period of time that would shed light on the condition of
the plaintiff at the time. See Scott v. Astrue, No. 09cv3999,
2010 WL 2736879, at *14 n.60 (E.D.N.Y. July 9, 2010) (“In this
particular circumstance, the court believes the more appropriate
rule is the one adopted in Pettey[, 582 F. Supp. 2d 434]. Given
that the ALJ already had knowledge of plaintiff’s changed
condition between the time of his application and time of his
hearing, the ALJ should have but did not seek further
clarification from [the treating physician], whose wellness report
was already in the administrative record.”); cf. Lisa v. Sec’y of
the Dep’t of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)
(“[W]hen . . . a diagnosis emerges after the close of
administrative proceedings that sheds considerable new light on
the seriousness of a claimant’s condition, evidence of that
diagnosis is material and justifies remand.”) (citations and
internal quotation marks omitted)).
13

primary treating physician and also supplied several notes from
his physical therapist; there are several pieces of records of
treatment from these sources without any evaluations, analyses, or
detailed opinions.

(Tr. 56, 283-84, 290-92, 308-25, 337-38, 348-

51, 361.)
The records from the treating sources also appear to be
inconsistent with the consultative exam on which the ALJ relied.
Dr. Silverman completed a wellness report on July 1, 2011, that
noted pain and tenderness in the left knee and recommended six
more weeks of physical therapy to strengthen the knee and improve
range of motion.
for two months.

He also found the plaintiff to be unemployable
(Tr. 321-22.)

But ten days later, the

consultative examiner found normal range of motion and no
substantial restriction on any exertional activities.
298, 300.)

(Tr. 296,

This conclusion from the consultative examiner also

appeared to be inconsistent with the subsequent months of physical
therapy treatments and subsequent reports by Dr. Silverman that
found limited motion or range of motion.

(Tr. 341-45.)

While

there are indications in the record that the plaintiff received
physical therapy over a long period of time, the record does not
contain the actual physical therapy treatment notes which should
have indicated the plaintiff’s progress or lack of progress on
criteria such as range of motion.
Faced with ambiguities, inconsistencies, or gaps in a
treating physician’s reports, the ALJ had “an affirmative duty to
14

seek out more information from the treating physician and to
develop the administrative record accordingly.”

Hartnett v.

Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998) (citations
omitted); see also Rosa, 168 F.3d at 79-80 (holding that the ALJ
erred by failing to seek out more records from treating physician,
physical therapist and hospital in light of contradictions between
evidence on the record and the scarce one page report of the
primary treating physician); Scott v. Astrue, No. 09cv3999, 2010
WL 2736879, at *15 (E.D.N.Y. July 9, 2010)(“By foregoing the
opportunity to inquire further upon [the treating physician’s]
2008 wellness report to clarify the admittedly ambiguous opinion
and by rejecting [treating physician’s] opinion without fully
developing the factual record, the ALJ committed legal error.”).
Moreover, additional evidence surrounding the plaintiff’s
continued physical therapy may also have been relevant to
determining the plaintiff’s medical conditions.

Dr. Silverman’s

June 1, 2011 wellness report indicated that the plaintiff was
temporarily unemployable for two months but did not explain the
basis for such a conclusion; nor did the report detail the
plaintiff’s work-related limitations in the space provided.
321.)

(Tr.

However, the report also stated that six weeks of therapy

was required to improve range of motion.

(Tr. 321.)

Indeed, even

though the June 1, 2011 wellness report projected only two months
for which the plaintiff would be unemployable, (Tr. 321), Dr.
Silverman ordered an additional six weeks of physical therapy on
15

July 27, 2011, and again on September 7, 2011, (Tr. 342, 343,
345).

It appears that the plaintiff initially had insurance

problems with these prescribed sessions of physical therapy, (Tr.
343), but did undergo additional physical therapy sessions at
least six times from September 19 to October 12, 2011, (Tr. 35357, 361), shortly before the ALJ’s hearing on October 25, 2011.
There is no record explaining why Dr. Silverman thought that the
plaintiff was unemployable for only two months, but continued to
prescribe physical therapy for months thereafter.2

In any event,

the wellness report from and the subsequent evaluations by the
treating sources are facially ambiguous and inconsistent.
Accordingly, the ALJ was obligated to obtain additional
information from the treating physicians, see Rosa, 168 F.3d at
79-80, before relying heavily on the evaluation of a consultative
physician who did not treat the plaintiff and whose opinion is
2

In addition, evidence submitted to the Appeals Council indicates
that the plaintiff underwent physical therapy again from November
2011 to early 2012. (Tr. 384-92.) Although this latest group of
physical therapy records covers the period after the ALJ’s
decision, these records do, like the earlier physical therapy
records, raise questions as to whether the June 1, 2011 wellness
report underestimated the seriousness of the plaintiff’s condition
by stating that he would be unemployable for only two months.
Indeed, Dr. Silverman’s last wellness report from the period dated
April 4, 2012, indicated that the plaintiff was still temporarily
unemployable as a result of his back pain and left knee problems.
(Tr. 419.) This evidence may support the conclusion that, at
least following the plaintiff’s March 31, 2011 surgery on his left
knee, the plaintiff was continually disabled for over a year. The
records submitted to the Appeals Council after the ALJ’s October
31, 2011 decision were thus strongly supportive of the plaintiff’s
claim of disability. The evidence was new, material, and could
not have been submitted prior to the ALJ’s decision. See Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996).
16

thus entitled to less weight.

See Lazo-Espinoza v. Astrue, No.

10cv2089, 2012 WL 1031417, at *11 (E.D.N.Y. Mar. 27, 2012); Peed
v. Sullivan, 778 F. Supp. 1241, 1247 (E.D.N.Y. 1991) (“[T]he duty
to develop a full record and the treating physician rule . . . do
not operate independently of each other. . . .”).
Because of these deficiencies in the record, it is also
unclear whether detailed assessments by the plaintiff’s treating
physicians, including Dr. Silverman and the physical therapist, if
obtained by the ALJ, would have altered the ALJ’s conclusion that
the plaintiff was able to perform sedentary work.

At the hearing,

the plaintiff stated that he could stand for no more than 25
minutes at a time and sit for no more than 20-25 minutes at a
time.

(Tr. 60.)

It is possible that this testimony may have been

substantiated by evaluations from the plaintiff’s treating
physicians, had they been asked to explain their diagnoses and
opinions.

Thus, the additional evidence would have been important

to a proper RFC determination by the ALJ.
However, aside from a general inquiry to the plaintiff’s
attorney at the administrative hearing, the ALJ did not make
further inquiries or contact the treating physicians in order to
ascertain the treating physicians’ opinions and analyses with
respect to the plaintiff’s precise medical conditions and failed
to obtain the treatment records from the physical therapy
treatments.

The ALJ failed to obtain this additional information

even though the ALJ had the contact information for these treating
17

physicians.

The ALJ’s failure to make at least reasonable efforts

to obtain those records and reconcile any ambiguities was legal
error.

See Rosa, 168 F.3d at 80 (holding that failure to close

the gaps in the record constituted legal error); Taveras v. Apfel,
No. 97cv5369, 1998 WL 557587, at *4-5 (S.D.N.Y. Sept. 2, 1998).
The Commissioner relies on the decision of the Court of
Appeals for the Second Circuit in Tankisi v. Comm'r of Soc. Sec.,
521 F. App'x 29 (2d Cir. 2013) (summary order).

In Tankisi, the

Court of Appeals held that while the ALJ erred in failing to
obtain a medical source statement from the treating physician as
to whether the plaintiff could meet the physical demands of work,
that did not require remand where the “record contains sufficient
evidence from which an ALJ can assess the petitioner’s residual
functioning capacity.”

Id. at 34.

In that case, the Court of

Appeals found that there was sufficient evidence to support the
ALJ’s conclusion based on the “quite extensive” medical record.
Id.

In this case, the medical record contains gaps and

inconsistencies which have not been resolved.

While the

Commissioner relies heavily on the consultative examiner’s report
by Dr. Thukral, that appears to be inconsistent with Dr.
Silverman’s conclusions at about the same time.

And while the

Commissioner relies on some of Dr. Silverman’s estimates as to
when the plaintiff could return to work, these conclusions were
overtaken by continuing findings that the plaintiff was not able

18

to return to work and by extensive subsequent periods of physical
therapy that stretched over a year.

IV.
Because the ALJ failed to satisfy his affirmative duty to
develop the record, the appropriate disposition in this case is a
remand to the Commissioner for further proceedings.

The Court

therefore does not reach the question whether the Commissioner’s
determination is supported by substantial evidence.

See Johnson

v. Bowen, 817 F.2d 983, 987 (2d Cir. 1987); Taveras, 1998 WL
557587, at *4-*5.
CONCLUSION
The Court has considered all of the arguments of the parties.
To the extent not specifically addressed above, the remaining
arguments are either moot or without merit.

For the reasons

explained above, the plaintiff’s cross-motion for judgment on the
pleadings is granted, and the defendant’s cross-motion is denied.
The Commissioner’s decision is vacated and this case is remanded
to the Commissioner for further proceedings in accordance with
this opinion.

The Clerk is directed to enter judgment and to

close this case.
SO ORDERED.
Dated:

New York, New York
September 15, 2014

____________/s/______________
John G. Koeltl
United States District Judge
19