Silvio, Jr. v. Colvin

Filing 25

OPINION AND ORDER re: 17 MOTION for Judgment on the Pleadings filed by Carolyn W. Colvin, 21 MOTION for Judgment on the Pleadings filed by Salvatore Silvio, Jr. For the foregoing reasons, Silvio's motion for judgment on the p leadings is GRANTED and the Commissioner's motion for judgment on the pleadings is DENIED. The case is hereby remanded to the Commissioner for further proceedings consistent with this Opinion and Order. The Clerk of Court is directed to close the motions at docket numbers 17 and 21. (As further set forth in this Order.) (Signed by Judge J. Paul Oetken on 6/16/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_________________________________________________

X
SALVATORE SILVIO, JR.,
:
Plaintiff,
:
:
-v:
:
CAROLYN W. COLVIN,
:
ACTING COMMISSIONER OF SOCIAL SECURITY,
:
Defendant.
:
_________________________________________________ X

14-CV-10035 (JPO)
OPINION AND
ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Salvatore Silvio, Jr. (“Silvio”) brings this action pursuant to 42 U.S.C. § 405(g)
challenging the final decision of the Acting Commissioner of Social Security (the “Commissioner”)
denying his application for disability benefits. (Dkt. No. 1.)
The parties have filed cross-motions for judgment on the pleadings. (Dkt. Nos. 17, 21.) For the
reasons that follow, Silvio’s motion is granted and the Commissioner’s motion is denied.
I.

Background
A.

Factual Background

The following facts are undisputed unless otherwise noted. 1
Silvio, who was born in 1954, worked from 1994 until 2007 as a toll collector for the New York
State Thruway Authority. (Dkt. No. 18 at 10.) On February 24, 2006, Silvio was injured on the job when
he slipped on a broken curb. (Id.) Since then, Silvio alleges, he has experienced “constant” pain and loss
of movement. (Dkt. No. 8 at 91-93, 106.) He was diagnosed with a variety of conditions following the
accident, including a herniated disc, myofascial pain syndrome, and rotator cuff tendonitis. (Dkt. No. 18
at 13.) He states that he suffers from depression due to his injuries. (Dkt. No. 8 at 105.)

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In citations to the record, page numbers reflect pagination on the Court’s electronic filing
system, rather than the native numbering of each document.
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Silvio returned to work in June 2016 following his accident, but stopped working once again on
July 13, 2006, allegedly due to pain brought on by his duties. (Dkt. No. 18 at 10.) The following year,
Silvio again attempted to return to work, but was forced to stop because, he alleges, his continued
orthopedic issues rendered him physically unable to perform the job. (Id.; Dkt. No. 8 at 82.) In
particular, according to treating chiropractor Art Donohue, D.C., Silvio’s “condition limits his abilit[y] to
sit or stand for any duration of time.” (Dkt. No. 8-4 at 40.) Silvio also testified that stretching to take
money from passing drivers was impossible for him, especially while he was seated, and that his medical
needs dictated that he alternate sitting and standing every twenty minutes. (Dkt. No. 8 at 82.)
Silvio has been approved for disability retirement by the Director of Disability Services at the
New York State and Local Employees’ Retirement System, and he also receives workers’ compensation.
(Id. at 103; Dkt. No. 8-6 at 55.) Silvio is HIV-positive, but has a very low viral load and has not
experienced any serious complications related to this condition since 1994. (Dkt. No. 8 at 76, 85-88.) In
2006, he had surgery to remove an unrelated tumor on his neck. (Dkt. No. 18 at 10.)
B.

Medical Background

Following his accident, Silvio has pursued treatment with several physicians. From 2006 to
2011, his primary treating physician was Michael Robinson, M.D., an orthopedist who treated Silvio on at
least fifty occasions during that period. (Dkt. No. 22 at 5.) Among other deficiencies, Dr. Robinson
noted that Silvio possessed a limited and painful range of motion (“ROM”) in his lower back and right
shoulder; he also identified evidence of lumbar radiculopathy and a herniated disc. (Id. at 6; Dkt. No. 18
at 14). In a “Medical Source Statement” questionnaire for the Social Security Administration (“SSA”),
Dr. Robinson concluded that Silvio could only occasionally lift and carry items weighing up to ten
pounds, but never more, and that he could only occasionally reach overhead with his right (his dominant)
hand. (Dkt. No. 8-6 at 75, 77.) He also concluded that Silvio could sit, stand, and walk for only thirty
minutes at a time, and for only a few hours in total, over the course of a work day. (Id. at 75-80.)
From October 2011 until at least July 2012, Silvio received osteopathic manipulative therapy
from Herbert Garcia, M.D. (Dkt. No. 22 at 4.) Based on his assessments of Silvio’s injuries, Dr. Garcia

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concluded that Silvio was “totally disabled.” (Dkt. No. 18 at 17; Dkt. No. 8-13 at 5.) His opinion as to
Silvio’s capacity for lifting and carrying was similar to but slightly more optimistic than Dr.
Robinson’s—up to twenty pounds on an occasional basis. (Dkt. No. 8-13 at 5; Dkt. No. 22 at 7.)
Silvio received chiropractic treatment from Arthur Donahue, D.C., from April 2007 until at least
October 2010. (Dkt. No. 18 at 16; Dkt. No. 22 at 8.) Dr. Donahue’s opinion as to Silvio’s capacity for
lifting and carrying matched Dr. Robinson’s opinion. (Dkt. No. 8-11 at 11.) He also determined that
Silvio could stand or walk for less than two hours per work day and that he could sit for less than six
hours.
Over the course of his treatment, and in connection with his applications for disability benefits
and Worker’s Compensation, Silvio also saw several physicians for one-time or sporadic examinations.
Most relevant here is Steven Rocker, M.D., a consultative physician for the SSA, who examined Silvio
once in 2008. (Dkt. No. 8-4 at 52.) Of Silvio’s many physicians, Dr. Rocker gave by far the most
optimistic opinion, finding “no limitation for . . . sitting, or handling,” and only a “mild limitation for
standing, walking, lifting, and carrying.” (Id.)
C.

Prior Procedural History

On May 9, 2008, Silvio filed an application for disability benefits, alleging disability stemming
from the aforementioned injuries to his shoulder, hips, and back, and from related depression. (Dkt. No.
22 at 4.) This application was denied by Administrative Law Judge (“ALJ”) Robert Gonzales in a
decision dated March 19, 2010. (Id.) The ALJ’s decision was vacated by the Social Security Appeals
Council on May 31, 2010, and remanded for further consideration of Silvio’s “residual functional
capacity” (or “RFC”)—that is, “what [Silvio] can still do despite the limitations imposed by his
impairment.” Lesterhuis v. Colvin, 805 F.3d 83, 86 n.2 (2d Cir. 2015) (citation omitted). (Dkt. No. 22 at
4). Specifically, the ALJ was directed to reconsider Silvio’s capacity to perform his past work, as well as
the medical opinions of his treating sources. (Id.; Dkt. No. 8 at 146; Dkt. No. 18 at 9).

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D.

The ALJ’s Opinion

After receiving additional testimony, ALJ Gonzales issued an opinion that once again denied
Silvio’s claim. That opinion is the subject of Silvio’s instant appeal. (Dkt. No. 8 at 15.) In it, the ALJ
followed the familiar five-step inquiry mandated by the Commissioner for determining whether a
claimant is disabled:
First, the Commissioner must determine whether the claimant is currently
engaging in substantial gainful activity. If so, the claimant is not disabled.
Second, if the claimant is not working, the Commissioner must determine
whether the claimant has a “severe” impairment, i.e., an impairment that limits his ability
to do physical or mental work-related activities. If not, the claimant is not disabled.
Third, if there is a severe impairment, the Commissioner determines if the
impairment meets or equals the criteria of a per se disabling impairment contained in
Appendix 1 to 20 C.F.R. Part 404, Subpart P (Listings of Impairment).
If the claimant’s impairment does not meet or equal a listed impairment, before
proceeding to step four, the Commissioner determines, based on all the relevant medical
and other evidence of record, the claimant’s “residual functional capacity,” which is what
the claimant can still do despite the limitations imposed by his impairment.
Fourth, the Commissioner considers whether the claimant’s residual functional
capacity permits him to return to his past relevant work. If so, the claimant is not
disabled.
Fifth, if the claimant cannot return to his past work, the Commissioner considers,
based on the claimant’s residual functional capacity and vocational factors, whether the
claimant can do other work existing in significant numbers in the national economy. If
so, the claimant is not disabled.
Lesterhuis, 805 F.3d at 86 n.2 (citing 20 § CFR 404.1520) (formatting added) (internal citations omitted).
At the first three steps, the ALJ found (1) that Silvio had not engaged in “substantial gainful
activity” during the claim period, and that Silvio’s brief period of employment in 2007 was an
“unsuccessful work attempt”; (2) that Silvio presented a number of “severe impairments”; and (3) that
those impairments did not meet or equal the per se disabling impairments enumerated in the regulations.
(Dkt. No. 8 at 17-19.)
At step four, in order to establish whether Silvio could perform his “past relevant work,” the ALJ
obtained testimony from vocational expert (“VE”) Marian Marracco regarding the residual functional
capacity required to work as a toll collector, as well as the types of accommodations that, if found
medically necessary, would preclude such employment as a practical matter. (Dkt. No. 18 at 19; Dkt. No.
8 at 109-13.) The VE testified that a person of Silvio’s age, education, and work history who could

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frequently reach with his arms in all directions, and who could occasionally lift up to twenty pounds,
could do the job. (Dkt. No. 8 at 109-10.) However, if such a person had the ability to reach only “on an
occasional basis,” or if that person could lift and carry only up to ten pounds with any regularity, he
would be unable to perform the required duties. (Id. at 111.)
Relying on the VE’s testimony, the ALJ found that Silvio “had the residual functional capacity to
perform a wide range of exertionally light work.” (Id. at 20.) He therefore terminated his inquiry at step
four, finding that Silvio was capable of performing his “past relevant work as a toll collector” and was
therefore not disabled for purposes of the Social Security Act. (Id. at 28.) In the process, he found that
Silvio would be able to perform any work that “does not require more than frequent overhead reaching
using the right upper extremity,” and also that he “must be allowed to alternate sitting and standing at will
and cannot couch [sic], climb, crawl or kneel more than occasionally.” (Id. at 20.) No explicit findings
were made regarding Silvio’s ability to lift and carry, but based on the vocational expert’s testimony
regarding the RFC required to work as a toll collector, it follows that the ALJ found that Silvio could lift
and carry at least twenty pounds occasionally. (Id.)
In making these RFC findings, the ALJ assigned greatest weight to the opinion of consulting
physician Dr. Rocker, on the grounds that Dr. Rocker “perform[ed] a comprehensive examination of the
claimant and the findings yielded therein are generally consistent with those observed by . . . Dr.
Robinson.” (Id. at 25.) After assigning greatest weight to Dr. Rocker’s opinion, a consultative physician,
the ALJ assigned weight to each of the other medical opinions in the record based primarily upon the
degree to which they accorded with Dr. Rocker’s opinion. (Id. at 26-27.)
The ALJ did not give controlling weight to the opinions of the treating orthopedists, Drs.
Robinson and Garcia, because he found them to be partially in conflict with findings and opinions of
other physicians—primarily Dr. Rocker. (Id. at 26-7.) He gave “great weight” to Dr. Garcia’s finding
that Silvio could occasionally lift and carry up to twenty pounds, but “less weight” to Dr. Robinson’s
finding that he could occasionally lift and carry up to ten pounds, which would indicate that Silvio could
not perform his prior work as a toll collector per the VE’s testimony. (Id. at 26-27.) In rejecting Dr.

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Robinson’s opinion on this point, the ALJ cited the fact that Silvio’s physicians had for the most part
recommended “conservative treatment measures,” and also stated that such a finding was inconsistent
with, in his view, the paucity of evidence showing any “neurological deficit.” (Id. at 26.)
In addition, the ALJ found that Silvio’s credibility was “minimal” and therefore his subjective
complaints did not support a finding of disability. (Id. at 24, 27.) He based this assessment upon four
factors: (1) that certain of Silvio’s activities, such as regular showering, driving himself to medical
appointments, and riding the “kiddy rides” at Disneyland with his children, seemed inconsistent with his
report of disability; (2) that his “treatment has remained conservative in nature”; (3) that Silvio receives
Workers’ Compensation and a disability pension, which the ALJ stated “raises the question of whether
the claimant’s continued unemployment is truly due to his alleged medical impairments or whether it is
due to a lack [of] motivation to seek and maintain employment in light of his substantial monthly
income”; and (4) that “the claimant betrayed no evidence of debilitating symptoms while testifying at the
hearing, which lasted for nearly an hour.” (Id. at 24-25, 99.)
On October 17, 2014, the Appeals Council denied review of this decision, rendering it the
Commissioner’s final decision. (Dkt. No. 8 at 8.)
II.

Discussion
Silvio urges this Court to remand, alleging that the ALJ erred in both his credibility and RFC

determinations.
“In reviewing a final decision of the SSA, this Court is limited to determining whether the SSA’s
conclusions were supported by substantial evidence in the record and were based on a correct legal
standard.” Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 405(g)).
“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.” Id. (internal quotation marks and citations omitted).
“We must consider the whole record, examining the evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which detracts from its weight.” Petrie v. Astrue, 412

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F. App’x 401, 403-04 (2d Cir. 2011) (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d
Cir. 1988)) (internal quotation marks omitted).
“Even if the Commissioner’s decision is supported by substantial evidence, legal error alone can
be enough to overturn the ALJ’s decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y.
2009) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).
A.

The Credibility Determination

The ALJ used two questionable factors in arriving at his conclusion that Silvio lacked credibility.
First, the fact that a disability claimant has other sources of income does not, on its own, undermine the
credibility of her testimony concerning the pain, suffering, and limitations resulting from her impairment.
See Cordero v. Astrue, No. 11-CV-5020, 2013 WL 3879727, at *26 (S.D.N.Y. July 29, 2013) (collecting
cases); Rinker v. Chater, No. 95-CV-3923, 1997 WL 47791, at *9 (S.D.N.Y. Feb. 6, 1997). Thus, it was
erroneous for the ALJ to conclude that Silvio’s receipt of other disability benefits impugned his
credibility.
Second, the ALJ “improperly characterized the fact that [physicians] recommended only
conservative [treatment] . . . as substantial evidence that plaintiff was not physically disabled,” and
thereby erroneously “imposed [his lay] notion that the severity of a physical impairment directly
correlates with the intrusiveness of the medical treatment ordered.” Shaw v. Chater, 221 F.3d 126, 13435 (2d Cir. 2000); see also Kessler v. Colvin, No. 14-CV-8201, 2015 WL 6473011, at *5 (S.D.N.Y. Oct.
27, 2015) (holding that “the nature of a claimant’s treatment regimen cannot justify” a negative credibility
determination) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).
That said, the ALJ did not rely solely on these factors, as he also considered evidence regarding
Silvio’s day-to-day activities, as well as the ALJ’s own observations of Silvio, both of which are
acceptable factors in a credibility analysis. 20 C.F.R. § 404.1529(c)(3). Because substantial evidence
independently supports the ALJ’s findings that Silvio was not entirely credible, “[t]he ALJ’s opinion is
not so threadbare as to warrant remand on the credibility determination alone.” Kessler, 2015 WL
6473011, at *6.

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B.

The Treating Physician Rule

An ALJ must give a treating physician’s opinion “controlling weight” as long as it is supported
by medical evidence and is not contradicted by the other substantial evidence in the record. Rosa v.
Callahan, 168 F.3d 72, 78-9 (2d Cir. 1999) (Sotomayor, J.). This is because treating physicians “are
likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a
claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations.” 20 C.F.R. § 404.1527(c)(2).
For substantially the same reasons, “ALJs should not rely heavily on the findings of consultative
physicians after a single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013); see also
Sanders v. Comm’r of Soc. Sec., 506 F. App'x 74, 78 n.4 (2d Cir. 2012) (“[A] contradictory RFC provided
by [a consulting physician] . . . is not a good reason to disregard [the treating physician’s] medical
opinion. Where . . . there are conflicting opinions between the treating and consulting sources, the
‘consulting physician’s opinions or report should be given limited weight.’”) (quoting Cruz v. Sullivan,
912 F.2d 8, 13 (2d Cir.1990)). Indeed, “consultative exams are often brief, are generally performed
without benefit or review of a claimant’s medical history and, at best, only give a glimpse of the claimant
on a single day.” Cruz, 912 F.2d at 13 (citation and internal quotation marks omitted).
If an ALJ does not give the treating physician’s opinion controlling weight, he must “explicitly
consider” four factors in deciding the weight to be given that opinion: “(1) the frequen[c]y, length, nature,
and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of
the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist.” Greek v.
Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam) (alteration in original) (citing Selian, 708 F.3d at
418). In doing so, the ALJ may not “substitute his own expertise or view of the medical proof for the
treating physician’s opinion or for any competent medical opinion.” Id. (citing Burgess, 537 F.3d at
131); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“While an ALJ is free to resolve issues
of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free

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to set his own expertise against that of a physician who submitted an opinion to or testified before him.”)
(quoting McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795, 799 (2d Cir. 1983))
(alterations omitted).
This does not mean that the ALJ must recite each of the factors in every case, so long as “the
ALJ’s reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 F. App'x 67, 70 (2d
Cir. 2013) (citing Halloran v. Barnhart, 362 F.3d 28, 31–32 (2d Cir. 2004) (per curiam)). It does,
however, mean that the ALJ must “comprehensively set forth” “good reasons” for the weight given to a
treating physician’s opinion, in order to “assist[ courts’] review of the Commissioner’s decision and let[]
claimants understand the disposition of their cases.” Halloran, 362 F.3d at 33 (quoting Snell v. Apfel, 177
F.3d 128, 134 (2d Cir.1999)) (internal quotation marks omitted). “The failure to provide ‘good reasons’
for not crediting a treating source’s opinion is a ground for remand.” Burgin v. Astrue, 348 F. App'x 646,
648 (2d Cir. 2009) (citing Halloran, 362 F.3d at 33).
If credited, treating physician Dr. Robinson’s opinion that Silvio could only lift and carry up to
ten pounds would indicate that Silvio was unable to perform his past work, in light of the VE’s testimony
that a greater capacity was required to work as a toll collector. (Dkt. No. 8 at 111.) The ALJ discounted
this opinion because (1) he found that the record did not contain sufficient evidence of “neurological
deficit” to support it, and (2) he believed it was inconsistent with the recommendations of various doctors
that Silvio continue to manage his symptoms with “only conservative treatment measures.” (Id. at 26.)
The ALJ’s assertion that Silvio’s “conservative” treatment regimen casts doubt upon Dr.
Robinson’s opinion runs afoul of Second Circuit precedent. An ALJ may not “impos[e his lay] notion
that the severity of a physical impairment directly correlates with the intrusiveness of the medical
treatment ordered.” Shaw, 221 F.3d at 134-35; see also Foxman v. Barnhart, 157 F. App’x 344, 347 (2d
Cir. 2005) (“[T]he ALJ erred in questioning the validity of [a physician’s] opinion based on his
‘conservative’ course of treatment.”) (citing Shaw, 221 F.3d at 134).
Further, in relying upon the purported scarcity of evidence of a “neurological deficit” to discredit
Dr. Robinson’s medical opinion, the ALJ erred by substituting his lay judgment for that of a competent

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medical professional. Greek, 802 F.3d at 375; see Rosa, 168 F.3d at 79 (Sotomayor, J.) (“[A]s a ‘lay
person[ ],’ the ALJ simply was not in a position to know whether the absence of muscle spasms would in
fact preclude the disabling loss of motion described by [a physician] in his assessment.”) (citing Wagner
v. Secretary of Health and Human Servs., 906 F.2d 856, 861 (2d Cir.1990)); Balsamo, 142 F.3d at 81.
This error is particularly acute when the ALJ is considering the opinion of a treating source. See 20
C.F.R. § 404.1527(c)(2).
It is also worth noting that virtually all of Silvio’s physicians determined that his ability to lift and
carry was significantly limited, including Drs. Donohue and Garcia, the other treating physicians. (Dkt.
No. 8-11 at 11; Dkt. No. 8-13 at 5.) The ALJ gave “little weight” to the opinion of Dr. Donohue that
Silvio could lift up to ten pounds, again citing insufficient record evidence of a “neurological deficit.”
(Dkt. No. 8 at 27.) However, he assigned “great weight” to that of Dr. Garcia, who concluded that Silvio
could occasionally lift up to twenty pounds (the minimum required to perform Silvio’s past work). (Id.)
No explanation was given as to why a scarcity of “neurological deficit” findings would be consistent with
the ability to occasionally lift twenty pounds but inconsistent with the ability to lift ten pounds. While it
is always impermissible for the ALJ to “substitute his own expertise or view of the medical proof for the
treating physician’s opinion or for any competent medical opinion,” Greek, 802 F.3d at 375, a decision
which does so is especially suspect where, as here, the ALJ is parsing medical opinion in such a finegrained manner.
As noted above, other medical sources in the record determined that Silvio had lifting and
carrying weight restrictions somewhat less severe than those identified by Dr. Robinson. Upon remand,
the ALJ is of course free to grapple with those contrasting opinions in accordance with the regulations set
out in 20 C.F.R. § 404.1527(c) and the treating physician rule. In this case, however, neither reason
provided by the ALJ for giving “less weight” to this treating physician’s opinion is proper under the law.
The ALJ must explicitly “set forth” “good reasons” for giving less weight to a treating
physician’s opinion, and courts in this Circuit “do not hesitate to remand when the Commissioner has not

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provided ‘good reasons.’” Halloran, 362 F.3d at 33; see Burgin, 348 F. App’x at 648. Remand is
therefore required.
III.

Conclusion
For the foregoing reasons, Silvio’s motion for judgment on the pleadings is GRANTED and the

Commissioner’s motion for judgment on the pleadings is DENIED. The case is hereby remanded to the
Commissioner for further proceedings consistent with this Opinion and Order.
The Clerk of Court is directed to close the motions at docket numbers 17 and 21.

SO ORDERED.
Dated: June 16, 2016
New York, New York
___________________________________
J. PAUL OETKEN
United States District Judge

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