Smith v. Commissioner of Social Security

Filing 28

REPORT AND RECOMMENDATION. For the reasons set forth in this Report and Recommendation, I recommend that the Commissioner's motion for judgment on the pleadings be denied, the plaintiff's motion for judgment on the pleadings be granted, and this case be remanded to the Commissioner for further proceedings consistent with this opinion. re: 24 FIRST MOTION for Judgment on the Pleadings filed by Craig B. Smith, 14 MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. Objections to R&R due by 1/18/2017 (Signed by Magistrate Judge James C. Francis on 1/4/2017) Copies transmitted this date. (rjm)

three years old. (Administrative Record (“R.”) at 126). Mr. Smith
has a GED.

(R. at 27).

He worked as a Metropolitan Transportation

Authority (“MTA”) bus operator from January 2000 until his injury
in June 2011 and has not worked since.

(R. at 28, 161).

Mr. Smith

lives in New Jersey with his wife and fourteen-year-old daughter.
(R. at 24-26).
B.

Hospital and Physician Records

On June 29, 2011, the plaintiff went to St. Luke’s-Roosevelt
Hospital Center complaining of mild to moderate left knee pain
after a toaster fell on his knee at work.

(R. at 221, 226).

An

x-ray of the knee revealed no acute fracture, no subluxation, no
joint space narrowing, and no effusion.

(R. at 221, 229).

There

was osseous productive change at the anterior patella and left
tibial tubercle.

(R. at 221).

The plaintiff was treated with

ibuprofen, diagnosed with contusion of the knee, and discharged
that same day.

(R. at 221-22, 227).

The plaintiff was ambulatory

upon discharge, and his pain level was one out of ten.

(R. at

222).
1.

Treating Physicians
a.

Dr. Maxim Tyorkin

On September 16, 2011, the plaintiff saw Dr. Maxim Tyorkin,
an orthopedic surgeon.

(R. at 327).

Mr. Smith reported swelling,

weakness, cracking, and popping in his left knee.
Physical therapy and medication “help[ed] somewhat.”
2

(R. at 327).
(R. at 327,

329).

Upon examination, Dr. Tyorkin noted joint pain, stiffness,

muscle pain, and cramps.

(R. at 328).

The plaintiff was in no

apparent distress, and range of motion in the left knee was 0-90
degrees (normal range was noted to be 0-140 degrees).

(R. at 238).

There was pain with deep flexion as well as medial joint line
tenderness.

(R. at 328).

Ligamentous examination was grossly

intact, as was the plaintiff’s neurovascular status.

(R. at 328).

Dr. Tyorkin assessed left knee internal derangement, osteochondral
lesion, and post-traumatic chondromalacia.
recommended

activity

modification,

inflammatories, and pain management.

(R. at 328).

physical

therapy,

(R. at 328).

He
anti-

Dr. Tyorkin

noted that the plaintiff was temporarily totally disabled, and the
prognosis was guarded.

(R. at 329).

Dr. Tyorkin noted no significant changes at an October 21,
2011 follow-up appointment.

(R. at 330).

minimal relief with physical therapy.

The plaintiff reported

(R. at 330).

Dr. Tyorkin

administered a hyaluronic acid injection in the left knee.
331).

(R. at

On January 12, 2012, the plaintiff underwent left knee

arthroscopy,

chrondroplasty,

femoral condyle microfracture.

partial

synovectomy,

(R. at 323).

and

medial

The procedures were

performed by Dr. Tyorkin with no noted complications. (R. at 323).
At a January 20, 2012 follow-up appointment with Dr. Tyorkin,
the plaintiff was using crutches and not bearing weight on his
left leg.

(R. at 332).

On February 17, 2012, Mr. Smith said he
3

was “somewhat improved” and was using a cane instead of crutches.
(R. at 334).

Range of motion in his left knee was 0-90 degrees,

and mild effusion was present.

(R. at 334).

The prognosis was

guarded and the plaintiff was characterized as temporarily totally
disabled.

(R. at 334).

On March 6, 2012, he complained of

continuing pain in his left knee and was using a cane and knee
brace.

(R. at 336).

The plaintiff also noted right knee pain

from increased weight bearing due to compensation for the left
knee.

(R. at 336).

to 0-110 degrees.

Range of motion in the left knee had improved

(R. at 336).

There was pain with deep flexion,

and he had mild effusion and moderate quadriceps atrophy.

(R. at

336).
At an April 20, 2012 follow-up appointment, Dr. Tyorkin noted
that the range of motion in the plaintiff’s left knee was 0-115
degrees and 0-130 degrees in the right knee.

(R. at 338).

The

plaintiff also complained of elbow pain due to his use of a cane.
(R. at 338).

The prognosis was guarded, and the plaintiff was

noted to be temporarily totally disabled.

(R. at 339).

Mr. Smith returned to Dr. Tyorkin on May 25, 2012.
340).

He complained of pain in both knees and was using a cane

and a brace.

(R. at 340).

Range of motion in the left knee was

0-110 degrees and 0-130 degrees in the right knee.

(R. at 340).

The plaintiff returned to Dr. Tyorkin on October 5, 2012.
342).

(R. at

(R. at

He complained of pain in both knees and was using a cane
4

and a brace.

(R. at 342).

0-115 degrees.

Range of motion in the left knee was

(R. at 342).

joint line tenderness.

There was pain with deep flexion and

(R. at 342).

Dr. Tyorkin administered a

hyaluronic acid injection to the left knee.

(R. at 342).

The

plaintiff was noted to have a moderate, partial disability and a
poor prognosis.

(R. at 343).

Mr. Smith saw Dr. Tyorkin again on

January 4, 2013, and May 17, 2013, with no significant changes
noted.

(R. at 344-47).

Range of motion in his left knee had

improved to 0-120 degrees in May, and he had a moderate, partial
disability as related to the left knee only.
b.

(R. at 346-47).

Dr. Michael Hearns

The plaintiff attended physical therapy at Central Medical
Services of Westrock (“Westrock”) approximately two to three times
per week from July 13, 2011, through January 6, 2014.
475, 482-89, 490-506).

(R. at 350-

There, the plaintiff was treated by Dr.

Michael Hearns 1 regularly.

(R. at 270).

At his initial session

on July 13, 2011, the plaintiff reported that his pain level was
six to seven out of ten (moderate) and was present all day.
at 352).

(R.

He described it as an aching pain, aggravated by bending,

twisting, climbing, and kneeling.

1

(R. at 352).

It was relieved

The ALJ mischaracterized Dr. Hearns as a physical therapist
who is not a medically licensed physician, referring to him as
“physical therapist Michael Hearns” rather than “Dr. Hearns.” (R.
at 15). Although he primarily provided physical therapy services
to the plaintiff, Dr. Hearns is a medically licensed physician.
(R. at 237).
5

by lying down or taking medication.

(R. at 352).

Standing,

walking, lifting, sitting, self-care, or repetitive movement did
not aggravate the pain.

(R. at 352).

Upon examination, flexion

and extension in the left knee were to 110 degrees (normal was
noted to be 135 degrees).
his treatment well.

(R. at 351).

The plaintiff tolerated

(R. at 354).

Throughout Dr. Hearns’ treatment of the plaintiff from July
2011 through January 2014, he consistently noted limitations for
standing, walking, climbing, kneeling, and repetitive motions.
(R. at 236-46, 251-57, 487-89, 496-506).

On June 13, 2012, Dr.

Hearns completed a progress report for the New York State Workers’
Compensation Board.

(R. at 241-42).

He noted that the plaintiff

was unable to work and had a 100% temporary impairment.

(R. at

242).
On July 10, 2012, Dr. Hearns completed a Function Report.
(R. at 270).

Dr. Hearns noted that he first saw Mr. Smith on July

13, 2011, and saw him three times a month for physical therapy.
(R. at 270).

The plaintiff could lift and carry up to thirty

pounds, stand or walk less than two hours per day, and had no
limitations in sitting.

(R. at 270).

The plaintiff also had

unspecified limitations in pushing and pulling.
2.

(R. at 270).

Consulting Physicians

On July 5, 2011, the plaintiff saw Dr. Matthew Clarke, a
specialist in family medicine and occupational medicine.
6

(R. at

247-49).

The plaintiff complained of left knee pain and stated

that he had been walking with a cane.

(R. at 247).

The plaintiff

had also developed pain in his right knee due to compensation for
the left knee.

(R. at 247).

His right knee pain was becoming

worse than his left knee pain.

(R. at 247).

there was tenderness in both knees.
range of motion in both knees.

Upon examination,

(R. at 248).

(R. at 248).

He had full

Dr. Clarke assessed

a left knee contusion and stated that the plaintiff had temporary
total disability for his job as a bus driver.

(R. at 248).

He

further noted that the plaintiff had developed right knee overuse
syndrome and right knee pain, and he referred the plaintiff to
physical therapy.

(R. at 248).

The plaintiff was to continue

treating his pain with ibuprofen.

(R. at 248).

The prognosis was

guarded, and the plaintiff was restricted from lifting, pushing,
pulling,
kneeling.

carrying,

sitting,

standing,

walking,

climbing,

and

(R. at 248-49).

An MTA Work Status/Availability Checklist, completed by a
physician on March 30, 2012, noted that Mr. Smith was unable to
lift, push, or pull any amount of weight and could not operate a
motor vehicle.

(R. at 423).

The plaintiff’s abilities to climb

and kneel were also limited.

(R. at 423).

No limitations in

sitting, walking, twisting, or bending were reported. (R. at 423).
On May 19, 2012, Dr. Roger Daniel Ignatius, a hand and plastic
surgeon,

completed

a

progress

report
7

for

the

New

York

State

Workers’ Compensation Board.

(R. at 264-67).

Dr. Ignatius noted

that Mr. Smith had a torn ligament, tendon, or muscle.
265).

(R. at

The plaintiff had reduced range of motion in his left knee

and was unable to work due to his left knee injury.
67).

The prognosis for recovery was poor.
On

August

10,

2012,

Dr.

Samuel

(R. at 266-

(R. at 266).
Wilchfort

consultative examination of the plaintiff.

conducted

(R. at 276-77).

a
The

plaintiff reported that a toaster had fallen on his left knee in
June 2011 and that he underwent an arthroscopic procedure on his
left knee in January 2012.

(R. at 276).

Following this procedure,

he began attending physical therapy sessions, and, at the time of
the consultative examination, the plaintiff was still attending
physical therapy three times a week.

(R. at 276).

The plaintiff

alleged that he was unable to walk and had to use a cane “all the
time.”

(R. at 276).

He also treated his knee pain with ibuprofen,

famotidine, and tramadol daily.

(R. at 276).

Upon examination, Mr. Smith had an antalgic gait and was
unable to walk without a cane.

(R. at 276).

also wearing a soft brace on his left leg.
unable to toe walk, heel walk, or squat.

The plaintiff was

(R. at 276).

He was

(R. at 276).

He had

full range of motion in his hands, wrists, elbows, shoulders, and
cervical spine.

(R. at 276).

over due to his knee pain.

The plaintiff was unable to bend
(R. at 276).

Straight leg raise

testing was to eighty degrees on the right and forty-five degrees
8

on the left, with complaints of knee pain.
knees appeared “normal.”

(R. at 276).

(R. at 276).

Both

Flexion was to 150 degrees

in the right knee and to ninety degrees in the left knee, with
extreme pain.

(R. at 276).

His ankles were normal.

(R. at 276).

Dr. Wilchfort concluded that the left knee appeared normal, but
the plaintiff clearly had decreased range of motion.

(R. at 277).

He further stated that the plaintiff would be unable to perform
any job that required “any activity.”
3.

(R. at 277).

Magnetic Resonance Imaging (“MRIs”)

An MRI scan of the plaintiff’s left knee on August 11, 2011,
revealed a small effusion, a 1.7-centimeter chronic osteochondral
lesion 2 of the medial femoral condyle with full-thickness articular
cartilage loss, and mild to moderate chondromalacia patellae.

(R.

at 260-61).
A June 15, 2012 MRI of the left knee revealed cartilage
thinning

and

fissuring,

no

meniscal

tear,

no

evidence

of

chondromalacia patellae, and evidence of a grade one sprain that
was not appreciated in the August 2011 MRI.

2

(R. at 258-59).

An osteochondral lesion is a tear or fracture in the
cartilage covering one of the bones in a joint. Cedar & Sinai,
Osteochondral
Lesions/Osteochondritis
Dessicans,
https://www.cedars-sinai.edu/Patients/HealthConditions/Osteochondral-Lesions-Osteochondritis-Dessicans.aspx
(last visited Dec. 28, 2016).
9

A September 3, 2013 MRI of the plaintiff’s right knee revealed
grade

II

chondromalacia,

effusion/mild synovitis.
C.

no

meniscal

tear,

and

a

small

(R. at 477).

Physical Therapy Records

In addition to treating with Dr. Hearns, the plaintiff treated
with

physical

physicians.

therapists

at

Westrock

(R. at 350-475).

who

were

not

licensed

Through September 14, 2011, the

plaintiff routinely noted pain and difficulty moving his left knee,
and the therapist regularly noted tenderness.

(R. at 358-73).

In

a September 16, 2011 Re-Evaluation Report, range of motion in his
left knee was noted to be 40 degrees upon both flexion and
extension.

(R. at 376).

The plaintiff reported the pain level in

his left knee as moderate and lasting all day.
described it as sharp, dull, and throbbing.
aggravated

by

sitting,

standing,

(R. at 377).

(R. at 377).

walking,

and

He

It was

bending,

and

relieved by lying down and medication, which included Motrin and
tramadol.

(R. at 377).

From September 21 through October 26, 2011, the plaintiff
routinely noted pain and difficulty moving his left knee, and the
therapist noted tenderness.

(R. at 378-90).

In an October 28,

2011 Re-Evaluation Report, range of motion in his left knee was
noted to be 45 degrees upon both flexion and extension.
392).

(R. at

The plaintiff reported the pain level in his left knee as

moderate and lasting all day.

(R. at 393).
10

He described it as

sharp, dull, and throbbing.

(R. at 393).

It was aggravated by

self-care, sitting, standing, walking, and bending, and it was
relieved by lying down and taking medication, which included
ibuprofen and tramadol.

(R. at 393).

On November 2, 2011, the therapist noted an unspecified
increase in range of motion in the plaintiff’s left knee.
395).

The

plaintiff

was

tolerating

treatment

well,

(R. at
and

his

progress was satisfactory. (R. at 395). Through January 10, 2012,
the treatment reports noted an increase in range of motion and
satisfactory progress, but the plaintiff continued to report pain
and difficulty moving his left knee.
no reports of tenderness.

(R. at 395-419).

There were

(R. at 295-419).

A February 29, 2012 Re-Evaluation Report reported tenderness
and noted that the plaintiff’s functional limitations included
walking and standing.

(R. at 420).

Range of motion in his left

knee was 15-40 degrees upon both flexion and extension.

(R. at

421).
From March 5 through March 20, 2012, Mr. Smith continued to
report pain and difficulty moving his left knee, and the therapist
routinely noted an increase in range of motion.

(R. at 425-31).

A March 21, 2012 Re-Evaluation Report reported tenderness and noted
that

the

plaintiff’s

stairs and walking.

functional
(R. at 432).

11

limitations

included

climbing

Range of motion in his left

knee was 0-100 degrees upon both flexion and extension.

(R. at

433).
From March 21 through April 16, 2012, the plaintiff continued
to report pain and difficulty moving his left knee, and the
therapist routinely noted an increase in range of motion.
434-44).

(R. at

An April 2012 Re-Evaluation Report reported tenderness

and noted that the plaintiff’s functional limitations included
walking and stairs.

(R. at 445).

Range of motion in his left

knee was 0-80 degrees upon flexion and extension.

(R. at 446).

A June 1, 2012 Re-Evaluation Report noted that the plaintiff
walked with a cane and his functional limitations included weight
bearing.

(R. at 452).

Range of motion in his left knee was 20-

90 degrees upon both flexion and extension.
in his right knee was to 20 degrees.

(R. at 453).

Flexion

(R. at 453).

Treatment notes from April 19 through December 28, 2012
contained no significant changes.

(R. at 447-75).

An August 13,

2012 Re-Evaluation Report noted that Mr. Smith had an antalgic
gait and walked with a cane.

(R. at 467).

His functional

limitations included prolonged walking and stair climbing.
467).

(R. at

Range of motion in his left knee was 5-70 degrees upon both

flexion and extension. 3

(R. at 468).

3

On September 25, 2013, the plaintiff was diagnosed with a
lymphoid tumor on his scalp. (R. at 516). He cited no limitations
caused by the tumor and testified that it was not the reason he
was not working. (R. at 39-40).
12

D.

Procedural History

Mr. Smith filed an application for SSI and SSDI on March 21,
2012, alleging a disability onset date of June 29, 2011, due to
injuries to his left knee and right pinky finger.
27, 155).

(R. at 11, 126-

He completed a Function Report in connection with his

application for benefits on May 21, 2012.

(R. at 169).

He

described experiencing pain, throbbing, burning, and swelling in
his left knee.

(R. at 170).

He stated that he used a knee brace

and cane every day and that his functional limitations included
lifting, stair climbing, squatting, sitting for a long period,
bending, kneeling, standing for a long period, and concentration.
(R. at 173-175).

He did “light cleaning, ironing, and laundry”

about once per week.

(R. at 171).

He also stated that he could

drive and went to the grocery store twice per month with his wife.
(R. at 172).

He noted that he could walk up to ten blocks with a

knee brace and cane before needing to take a five-minute break.
(R. at 174).
Mr. Smith’s application was denied initially on September 5,
2012, and denied again on reconsideration on December 17, 2012.
(R. at 11, 52, 62). Thereafter, the plaintiff requested a hearing,
and on March 20, 2014, a hearing was held before Administrative
Law Judge (“ALJ”) Wallace Tannenbaum.

(R. at 11, 17).

The

plaintiff testified at the hearing that he experienced constant
swelling, pain, and throbbing in the left knee.
13

(R. at 32).

His

activities included driving, visiting his daughter’s school, light
cooking, light laundry, walking “a block or two,” and standing by
the stove to cook.

(R. at 34-36, 39).

He used a cane “[m]ost of

the time,” including when he had to leave the house and when he
cooked.

(R. at 39).

He reported that he was able to sit for up

to two and one-half hours at a time without pain (R. at 37), and
he would lie down with his leg elevated three to four times per
day for two hours each time (R. at 38).
The ALJ issued a decision on April 11, 2014, finding that the
plaintiff was not disabled under the Act.

(R. at 17).

The Appeals

Council denied review on May 20, 2015 (R. at 1), and the ALJ’s
decision thus became the final decision of the Commissioner.

The

plaintiff filed this action on July 7, 2015.
Analytical Framework
A.

Determination of Disability

A claimant is entitled to disability insurance benefits if he
or she is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
. . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.”

42 U.S.C. § 423(d)(1)(A); see

also Barnhart v. Walton, 535 U.S. 212, 214-15 (2002) (explaining
that

both

months).

impairment

and

inability

to

work

must

last

twelve

Disability must be demonstrated by “medically acceptable

clinical and laboratory diagnostic techniques.”
14

42 U.S.C. §

423(d)(3).

To

be

eligible

for

SSDI,

a

claimant

must

also

demonstrate that he or she was disabled as of a date on which he
was still insured.

42 U.S.C. § 423(a)(1)(A); see also Fleming v.

Astrue, No. 06 CV 20, 2010 WL 4554187, at *9 (E.D.N.Y. Nov. 2,
2010).
In assessing a claim of disability, the Commissioner must
consider: “(1) the objective medical facts; (2) diagnoses or
medical opinions based on such facts; (3) subjective evidence of
pain or disability testified to by the claimant or others; and (4)
the claimant’s educational background, age, and work experience.”
Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam)).

The

regulations outline a five-step sequential process for evaluating
a claim of disability.

See 20 C.F.R. § 404.1520; Kohler v. Astrue,

546 F.3d 260, 265 (2d Cir. 2008).

At each stage of the analysis,

the ALJ must adequately explain his or her reasoning, address all
pertinent evidence, and fully develop the administrative record.
Delacruz v. Astrue, No. 10 Civ. 5749, 2011 WL 6425109, at *8
(S.D.N.Y. Dec. 1, 2011).
At the first step, the ALJ must verify that the claimant is
not currently engaged in substantial gainful activity.
§ 404.1520(b).

20 C.F.R.

At step two, the ALJ determines whether the

claimant has a medically severe impairment or combination of
impairments.

20 C.F.R. § 404.1520(c).
15

At step three, if the

impairment is included in the portion of the regulations known as
“the Listings,” 20 C.F.R. pt. 404, subpt. P, app. 1, or is the
substantial equivalent of a listed impairment, the claimant is
automatically

considered

disabled.

20

C.F.R.

§

404.1520(a)(4)(iii), (d).
If the claimant is not considered disabled at step three, the
ALJ assesses the claimant’s residual functional capacity.
C.F.R. § 404.1520(a)(4), (e).

20

A claimant’s residual function

capacity is “the most [he or she] can still do despite [his or
her] limitations.”

20 C.F.R. § 404.1545(a)(1).

To determine

residual functional capacity, the ALJ identifies the claimant’s
functional

limitations

and

assesses

his

abilities on a function-by-function basis.

or

non-exertional

factors

claimant’s ability to work.

that

may

work-related

Cichocki v. Astrue,

729 F.3d 172, 176 (2d Cir. 2013) (per curiam).
consider

her

The ALJ must also
further

limit

the

See McDonaugh v. Astrue, 672 F. Supp.

2d 542, 549 (S.D.N.Y. 2009).
At step four, the ALJ determines whether the claimant’s
residual functional capacity enables the claimant to do his or her
past work.

20 C.F.R. § 404.1520(a)(4)(vi), (e).

If not, the

burden shifts to the Commissioner to demonstrate at the fifth step
that there is alternative substantial gainful employment in the
national economy that the claimant can perform.

20 C.F.R. §

404.1520(a)(4)(v), (g); Longbardi v. Astrue, No. 07 Civ. 5952,
16

2009 WL 50140, at *23 (S.D.N.Y. Jan. 7, 2009).

When the claimant

has significant nonexertional limitations “over and above any
incapacity caused solely from exertional limitations,” the ALJ
must use a vocational expert or other similar evidence to satisfy
this burden.
B.

Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986).

Judicial Review

Under Rule 12(c) of the Federal Rules of Civil Procedure,
judgment on the pleadings is appropriate where the moving party is
entitled to judgment as a matter of law based on the contents of
the pleadings.

Dargahi v. Honda Lease Trust, 370 F. App’x 172,

174 (2d Cir. 2010).
of

Social

“In the context of an appeal from the denial

Security

benefits,

the

administrative

record

is

incorporated into the pleadings, making the matter appropriate for
resolution on a Rule 12(c) motion.”

Joseph v. Astrue, No. 06 Civ.

1356, 2007 WL 5035942, at *4 (S.D.N.Y. Dec. 28, 2007); see also
Abiona v. Thompson, 237 F. Supp. 2d 258, 265 (E.D.N.Y. 2002)
(“[T]he parties refer to the administrative record, regulations,
and ALJ decisions in the pleadings. Therefore, these documents are
deemed incorporated in the pleadings and may properly be considered
by the Court.”).
The Act provides that the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive.”
42

U.S.C.

§

405(g).

Therefore,

a

reviewing

court

does

not

determine de novo whether a plaintiff is disabled, but rather “is
17

limited

to

determining

whether

the

SSA’s

conclusions

were

supported by substantial evidence in the record and were based on
a correct legal standard.”

Talavera v. Astrue, 697 F.3d 145, 151

(2d Cir. 2012) (quoting Lamay v. Commissioner of Social Security,
562 F.3d 503, 507 (2d Cir. 2009)).
such

relevant

evidence

as

a

“Substantial evidence ‘means

reasonable

adequate to support a conclusion.’”

mind

might

accept

as

Shaw v. Chater, 221 F.3d 126,

131 (2d Cir. 2000) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)).

“If substantial evidence supports the Commissioner’s

decision, then it must be upheld, even if substantial evidence
also supports the contrary result.”

Ventura v. Barnhart, No. 04

Civ. 9018, 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006).
Although

a

Commissioner’s

reviewing
resolution

court
of

generally

conflicting

“defer[s]
evidence,”

to

the

Cage

v.

Commissioner of Social Security, 692 F.3d 118, 122 (2d Cir. 2012),
it

“is

required

contradictory
inferences

to

evidence

can

be

examine
and

drawn”

the

evidence

entire

when

from

assessing

record,
which
whether

including
conflicting
an

agency

determination is supported by substantial evidence, Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Mongeur, 722
F.2d at 1038).

A court must also independently ascertain whether

the correct standards were applied and remand when “there is a
reasonable basis for doubt whether the ALJ applied correct legal
principles.”

Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998);
18

see also Talanker v. Barnhart, 487 F. Supp. 2d 149, 154 (E.D.N.Y.
2007) (“An ALJ’s failure to adhere to any of [the procedural
obligations prescribed by regulation] constitutes legal error,
permitting reversal of the administrative decision.”).
Analysis
A.

The ALJ’s Decision

After confirming that the plaintiff met the insured status
requirements

of

the

Act

through

December

proceeded through the five-step analysis.

31,

2016,

(R. at 13).

the

ALJ

At step

one, he found that Mr. Smith had not engaged in substantial gainful
activity since his alleged onset date of June 29, 2011.
13).

(R. at

At step two, he found that Mr. Smith had the following severe

impairments: left knee cartilage injury, status post arthroscopic
repair; right knee chondromalacia; and newly diagnosed lymphoma.
(R. at 13).

At step three, the ALJ determined that the plaintiff’s

impairments did not meet or equal the criteria of an impairment in
the Listings.

(R. at 13).

The ALJ then found that the plaintiff

had the residual functional capacity to perform sedentary work.
(R.at 13).

At step four, the ALJ determined that the plaintiff

was unable to perform his past relevant work as a bus driver.
at 16).

(R.

Finally, at the fifth step, the ALJ determined that the

plaintiff could perform jobs that existed in significant numbers
in the national economy based on his residual functional capacity,

19

age, education, and work experience.

(R. at 17).

plaintiff was not disabled under the Act.
B.

Thus, the

(R. at 17).

The Listings

At step three, the ALJ found that “[t]he claimant does not
have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1.”

(R. at 13).

An ALJ

“should set forth a sufficient rationale in support of his decision
to

find

or

not

to

find

a

listed

impairment.”

Salmini

v.

Commissioner of Social Security, 371 F. App’x 109, 112 (2d Cir.
2010) (quoting Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.
1982)).

Here, the ALJ did not directly set forth a rationale for

his finding that the plaintiff did not meet or equal any of the
listings or discuss the listings he assessed.

However, “the

absence of an express rationale does not prevent [a court] from
upholding

the

ALJ’s

determination

regarding

.

.

.

listed

impairments, [if] portions of the ALJ’s decision and the evidence
before

him

indicate

substantial evidence.”

that

his

conclusion

was

supported

by

Berry, 675 F.2d at 468; see also Sava v.

Astrue, No. 06 Civ. 3386, 2010 WL 3219311, at *3 (S.D.N.Y. Aug.
12, 2010).
The plaintiff contends that the ALJ erred in finding that he
did not meet Listing 1.02(A), major dysfunction of a joint.
Listing is
20

The

[c]haracterized by gross anatomical deformity (e.g.,
subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion
of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing,
bony destruction, or ankylosis of the affected joint(s).
With:
A. Involvement of one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in
inability to ambulate effectively, as defined in 1.00B2b
. . . .
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02.

An “inability to

ambulate effectively” sufficient to meet the Listing “is defined
generally as having insufficient lower extremity functioning . . .
to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper
extremities.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(B)(2)(b)
(emphasis added).

Additionally, an individual must be unable to

sustain a “reasonable walking pace over a sufficient distance.”
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(B)(2)(b)(2).

The

evidence here indicates that the plaintiff has used a cane and
knee brace to walk since the onset of his injury.
276, 334-342, 452, 467).

(R. at 247,

He briefly used crutches after his

arthroscopic surgery in January 2012 (R. at 332), but returned to
using a cane within five weeks (R. at 334).

Dr. Hearns observed

that the plaintiff “still has effective use of at least one
extremity for carrying while using the [cane].”
Wilchfort reached the same conclusion.
21

(R. at 273).

(R. at 278).

Dr.

Thus, the

plaintiff did not require a hand-held assistive device that limited
the functioning of both upper extremities.

He was also able to

walk and travel independently for short periods.
39, 171-72, 174).
Listing

1.02(A),

(R. at 34-36,

Accordingly, he did not meet a requirement of
and

substantial

evidence

supports

the

ALJ’s

determination that the plaintiff’s impairments did not meet or
equal any of the listings.
C.

Residual Functional Capacity

Jobs are classified by exertional levels based on the strength
demands of the position, increasing incrementally from sedentary
to very heavy work.

20 C.F.R. §§ 404.1567, 404.1569a.

Here, the

ALJ found that the plaintiff had the residual functional capacity
to do sedentary work.

(R. at 13).

Sedentary work “involves

lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in
carrying out job duties.”

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

Sedentary work

“generally involves up to two hours of standing or walking and six
hours of sitting in an eight-hour work day.”

Crowell v. Astrue,

No. 08 Civ. 8019, 2011 WL 4863537, at *3 (S.D.N.Y. Oct. 12, 2011)
(quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)); see also
SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983).

22

The ALJ cited no meaningful evidence that the plaintiff had
the ability to stand or walk for up to two hours per day, nor is
any such evidence apparent in the record.

Dr. Hearns consistently

noted limitations for standing and walking throughout his two-anda-half years treating the plaintiff.
89, 496-506).

(R. at 236-46, 251-57, 487-

In a July 2012 Function Report, Dr. Hearns assessed

that the plaintiff could stand or walk for less than two hours per
day.

(R. at 270).

Significantly, the Function Report provided

the option to check a box stating that the plaintiff could stand
or walk for “up to 2 hours per day” -- the amount required for the
full rnage sedentary work -- yet Dr. Hearns checked the box for
“less than 2 hours per day” instead.

(R. at 270 (emphasis added)).

This was the only report cited by the ALJ bearing directly on the
plaintiff’s ability to stand or walk.
The opinion of a treating physician like Dr. Hearns regarding
the nature and severity of a plaintiff’s impairments “will be given
‘controlling weight’ if the opinion is ‘well supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the
record].’”

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.

2003) (quoting 20 C.F.R. § 404.1527(d)(2)); accord Shaw, 221 F.3d
at 134.

“An ALJ who refuses to accord controlling weight to the

medical opinion of a treating physician must consider various
‘factors’ to determine how much weight to give to the opinion.”
23

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (quoting 20
C.F.R § 404.1527(c)(2)).

These factors include

(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.
Id.; see also 20 C.F.R. § 404.1527(c)(2).

Explicit discussion of

each factor is not required so long as it is clear that the ALJ
undertook the proper analysis, Halloran, 362 F.3d at 32–33, though
the ALJ must “always give good reasons in [his or her] notice of
determination or decision for the weight [he or she] give[s] [a]
treating source’s opinion,” 20 C.F.R. § 404.1527(c)(2).
The

ALJ’s

opinion

is

bereft

of

any

indication

that

he

considered these factors in evaluating Dr. Hearns’ assessment of
the plaintiff’s ability to stand and walk.

Indeed, the ALJ

mischaracterized Dr. Hearns as a physical therapist without a
medical license (R. at 15), and thus did not acknowledge his status
as a treating physician.
consistent

with

much

of

Moreover, Dr. Hearns’ assessment is
the

medical

evidence

in

the

indicative of the plaintiff’s inability to stand or walk.

record
MRIs in

2011 and 2012 showed cartilage damage in the left knee (R. at 25861), and reports of Dr. Tyorkin, Dr. Wilchfort, and the plaintiff’s
physical therapists noted significantly limited range of motion in

24

the left knee (R. at 276, 328, 330, 334, 376, 421, 446, 453, 468).
Dr. Wilchfort observed that the plaintiff was unable to toe walk,
heel walk or squat, and noted positive straight leg raising tests
for both

legs

(R.

at

276);

furthermore,

the

plaintiff’s

statements described a limited ability to stand and walk. 4
38-39).

own

(R. at

The ALJ also mischaracterized, and thus disregarded, Dr.

Wilchfort’s assessment that the plaintiff could not perform jobs
requiring

any

activity

as

complaints” of the plaintiff. 5

merely

reporting

the

“subjective

(R. at 16).

4

The plaintiff’s statements that he could walk up to ten
blocks with a knee brace and cane (R. at 174), occasionally visited
his daughter’s school (R. at 34-35), went grocery shopping with
his wife twice per month (R. at 172), and did chores like “light”
cooking and laundry (R. at 36), are not inconsistent with a finding
that he could stand or walk for less than two hours per day. See
Molina v. Colvin, No. 13 Civ. 4989, 2014 WL 3445335, at *15
(S.D.N.Y. July 15, 2014) (“There is a big difference [] between an
occasional walk or shopping trip and sitting/standing for an eight
hour workday.”).
The plaintiff’s other statements indicate a
significant limitation for standing and walking -- he testified
that he generally walked only “a block or two” and spent as many
as eight hours per day lying down with his leg elevated. (R. at
38-39).
5

Dr. Wilchfort’s report states: “Any job that is going to
require any activity at this point is going to be impossible.”
(R. at 277). This assessment is contained in the “Summary” section
of his report, where Dr. Wilchfort summarizes his medical findings
and recommendations. (R. at 276-77). Throughout the report, Dr.
Wilchfort indicates explicitly when he is discussing the
plaintiff’s subjective complaints by prefacing them with the
phrase “he says” (R. at 276-77), including in the clause that
immediately follows his assessment of the plaintiff’s capacity to
work. (R. at 277 (“Any job that is going to require any activity
is going to be impossible, he says he cannot even walk without a
cane.”)). No such qualifier precedes Dr. Wilchfort’s assessment
that the plaintiff could not perform work that requires any
25

The remaining reports evaluating the plaintiff’s ability to
stand and walk are mixed but minimally probative. Dr. Clarke noted
unspecified limitations for standing and walking in July 2011 (R.
at 249), while the MTA physician did not note limitations for
walking in March 2012, (R. at 423).

That alone, without any

analysis from the ALJ, is insufficient to support the finding of
an ability to stand or walk for up to two hours per day for a
residual functional capacity to perform the full range of sedentary
work.

activity. Thus, the ALJ’s reading of Dr. Wilchfort’s assessment
as repeating the plaintiff’s subjective complaints is incorrect.
The Commissioner’s motion for judgment on the pleadings
correctly reads Dr. Wilchfort’s assessment that the plaintiff
could not do work that requires any activity as a medical
conclusion, but misconstrues it to stand for the proposition that
the “[p]laintiff would only be unable to perform a job which
required activity.”
(Memorandum of Law in Support of the
Commissioner’s Motion for Judgment on the Pleadings (“Def. Memo.”)
at 14). Accordingly, the Commissioner argues that Dr. Wilchfort’s
opinion
supports
the
ALJ’s
residual
functional
capacity
determination because he “clearly found [the] [p]laintiff capable
of working, and sedentary work encompasses the lowest level of
physical exertion.”
(Def. Memo. at 14-15).
Dr. Wilchfort did
not, however, assess the work the plaintiff could do or state that
he found the plaintiff capable of working. He only assessed the
work the plaintiff could not do -- namely, that which required
“any activity.” He did not clarify the meaning of “any activity,”
though, notably, the full range of sedentary work still requires
lifting up to ten pounds and standing or walking for up to two
hours per day. Accordingly, Dr. Wilchfort’s assessment does not,
as the Commissioner argues, support the ALJ’s determination that
the plaintiff was capable of sedentary work.
26

The other evidence cited by the ALJ to support his residual
functional capacity finding is immaterial.

The ALJ noted that Dr.

Tyorkin “failed to provide any evidence that the claimant could
not perform sedentary work, since no prohibitions on extended
sitting were suggested” at a March 10, 2012 visit.

(R. at 14).

Similarly, he noted that “[n]o specific vocational limitations
were cited” at an October 5, 2012 visit with Dr. Tyorkin.
15).

However,

Dr.

Tyorkin

never

assessed

the

(R. at

plaintiff’s

functional limitations, nor did the ALJ ask Dr. Tyorkin to make
such an assessment.

Accordingly, the absence of information

regarding the plaintiff’s functional limitations in Dr. Tyorkin’s
reports does not support the ALJ’s finding that the plaintiff was
capable

of

sedentary

work.

Therefore,

the

ALJ’s

residual

functional capacity determination is not supported by substantial
evidence.
D.

Credibility Determination

“In assessing a claimant’s credibility, the ALJ must consider
all of the evidence in the record and give specific reasons for
the weight accorded to the claimant’s testimony.”

Kessler v.

Colvin, 48 F. Supp. 3d 578, 594 (S.D.N.Y. 2014); see also Genier
v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010) (“Before finding that
[the claimant] was not a credible reporter of his own limitations,
the ALJ was required to consider all of the evidence of record,
including [the claimant’s] testimony and other statements with
27

respect to his daily activities.”).

Because “symptoms sometimes

suggest a greater severity of impairment than can be shown by
objective medical evidence alone,” 20 C.F.R. § 404.1529(c)(3), the
regulations require the ALJ to consider several factors to assess
the

claimant’s

credibility

where

the

plaintiff’s

testimony

concerning the intensity, persistence, or functional limitations
associated with his impairments is not fully supported by clinical
evidence, 20 C.F.R. § 404.1529(c)(2), (3); Kessler, 48 F. Supp. 3d
at 594.

Those factors include the plaintiff’s daily activities;

the location, duration, frequency, and intensity of pain or other
symptoms; precipitating and aggravating factors; the type, dosage,
effectiveness and side effects of medication; treatment other than
medication

undertaken

to

alleviate

the

pain;

and

undertaken by the plaintiff at home to relieve pain.

measures

20 C.F.R. §

404.1529(c)(3)(i)-(vi).
“[C]ourts must show special deference to an ALJ’s credibility
determinations because the ALJ had the opportunity to observe [the]
plaintiff’s demeanor while testifying.”
Civ.

6819,

2013

WL

5568718,

at

*7

Marquez v. Colvin, No. 12
(S.D.N.Y.

Oct.

9,

2013).

Nevertheless, if an ALJ “finds that a claimant is not credible[,]
[he or she] must do so ‘explicitly and with sufficient specificity
to enable the Court to decide whether there are legitimate reasons
for the ALJ’s disbelief and whether his determination is supported
by substantial evidence.’”

Henningsen v. Commissioner of the
28

Social Security Administration, 111 F. Supp. 3d 250, 268 (E.D.N.Y.
2015) (quoting Rivera v. Astrue, No. 10 CV 4324, 2012 WL 3614323,
at *14 (E.D.N.Y. Aug. 21, 2012)).

Here, following a narrative

summary of the plaintiff’s medical record, the ALJ concluded that
“the

claimant’s

statements

concerning

the

intensity,

persistence[,] and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.”
(R.

at

16).

preceding

this

The

summary

conclusion

of

the

lacks

plaintiff’s

the

required

medical

record

specificity

to

determine whether the ALJ’s credibility finding is supported by
substantial evidence.
First, the ALJ did not discuss any of the plaintiff’s hearing
testimony or the Function Report he filled out in connection with
his application for benefits; he only discussed the plaintiff’s
complaints of knee pain and functional limitations at visits with
various physicians.
determination

based

The deference I owe to the ALJ’s credibility
on

his

observation

of

the

plaintiff’s

testimony is limited here since the ALJ failed to indicate whether
he considered the plaintiff’s testimony at all.

Moreover, this

prevented the ALJ from considering the plaintiff’s reports of his
daily activities or the measures he takes at home to alleviate
pain, such as lying down with his leg elevated (R. at 38), which
are among the factors to be considered in making a credibility
determination, 20 C.F.R. § 404.1529(c)(3)(i), (vi).
29

Second, the ALJ compared the objective medical evidence with
the plaintiff’s statements only with respect to Dr. Wilchfort’s
consultative examination, writing, “Significantly, despite the
claimant’s complaints of left knee pain, the physician observed
that ‘the knee appears normal on the left.
no deformity.’”

There is no swelling,

(R. at 16 (quoting R. at 276)).

The ALJ also

noted, “According to the consultative physician, the claimant had
full 5/5 muscle strength bilaterally, despite his complaints.”
(R. at 16). However, Dr. Wilchfort’s other findings are consistent
with

the

plaintiff’s

assertions

of

pain

and

functional

limitations, including positive straight leg raising tests on both
legs,

limited

range

of

motion

in

the

left

knee,

and

his

recommendation that the plaintiff refrain from work requiring “any
activity.”
not

(R. at 276).

mention

them

in

The ALJ discussed these findings but did

connection

with

his

assessment

of

the

plaintiff’s statements.
Much of the other medical evidence in the record is consistent
with the plaintiff’s statements regarding the severity of his
condition.

An August 2011 MRI of the plaintiff’s left knee showed

a 1.7 cm osteochondral lesion, and a June 2012 MRI of the left
knee showed cartilage thinning and fissuring.

(R. at 258-61).

Numerous reports from Dr. Tyorkin and the plaintiff’s physical
therapists noted range of motion of 0-90 degrees or less in the
plaintiff’s left knee.

(R. at 328, 330, 334, 376, 421, 446, 453,
30

468).

The ALJ omitted most of these reports from his opinion;

without explanation, he focused selectively on reports that showed
a better (0-100 degrees and above), though still sub-normal, range
of motion in the left knee.

(R. at 14-15).

Finally, Dr. Clarke

and Dr. Tyorkin noted on several occasions from July 2011 through
April 2012 that the plaintiff had “temporary total disability”
that prevented him from returning to his job as a bus driver.
at 249, 329, 334, 339).

(R.

Though this is a worker’s compensation

term, it does tend to show that the plaintiff’s physicians credited
his statements regarding the severity of his condition.

The ALJ

did not make clear if or how he weighed any of this evidence
against

the

plaintiff’s

statements

in

making

his

credibility

determination, nor did he consider the factors set out in the
regulations.

Accordingly, the ALJ’s decision lacks the required

specificity for me to decide whether his credibility determination
is supported by substantial evidence.
E.

Post-Decision Medical Evidence

Mr. Smith attached a “Residual Functional Capacity Form” and
“Walking Questionnaire,” both filled out by Dr. Stephen Roberts
and dated June 23, 2016, to his motion for judgment on the
pleadings.

The documents purport to provide evidence of the

plaintiff’s

functional

limitations

dating

back

to

July

2011.

(Residual Functional Capacity Form, attached as Exh. to Memorandum
of Law in Support of Plaintiff’s Cross Motion for Judgment on the
31

Pleadings

filed

Dec.

28,

2016

(“Pl.

Memo.”);

Walking

Questionnaire, attached as Exh. to Pl. Memo). The plaintiff argues
that these reports require remand for further proceedings.
Because

remand

is

appropriate

for

the

reasons

already

discussed, the question is whether the ALJ should be ordered to
consider Dr. Roberts’ reports on remand.
any

time

order

additional

evidence

A district court “may at

to

be

taken

before

the

Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a prior
proceeding.”

42

U.S.C.

§

405(g).

The

Second

Circuit

has

interpreted this language to require the new evidence to satisfy
a three-pronged test: (1) it is new and not cumulative of what is
already in the record; (2) it is material, meaning that it is
probative, relevant to the plaintiff’s condition during the time
period for which benefits were denied, and could have influenced
the Secretary’s decision; and (3) there is good cause for the
plaintiff’s failure to present the evidence earlier.

Tirado v.

Bowen, 842 F.2d 595, 597 (2d Cir. 1998); Perez v. Colvin, No. 14
Civ. 9733, 2016 WL 5956393, at *13 (S.D.N.Y. July 21, 2016); see
also 42 U.S.C. § 405(g).
The records submitted by the plaintiff fail on the second and
third prongs.

With respect to materiality, the reports present

only conclusory statements regarding the plaintiff’s functional
32

limitations.

Although they purport to provide information that is

applicable back to 2011, the plaintiff provides no evidence that
Dr. Roberts treated him prior to the June 2016 visit or how Dr.
Roberts made conclusions about his functional limitations over the
last five years.

With respect to good cause, the plaintiff

provides no reason why he could not have consulted with Dr. Roberts
and submitted this evidence during the time between his initial
application for benefits in March 2012 and the Appeals Council’s
denial of review in May 2015.

Thus, while the ALJ may consider

Dr. Roberts’ reports on remand, he should not be ordered to do so.
F.

Remedy

Even though I recommend reversal of the ALJ’s decision, remand
solely for calculation of benefits is not warranted.

Under 42

U.S.C. § 405(g), a reviewing court has the power to affirm, modify,
or reverse an ALJ’s decision with or without remanding the case
for a rehearing.
conclude

that

Only when a court finds “no apparent basis to
a

more

complete

record

might

support

the

Commissioner’s decision” is remand solely for a calculation of
benefits warranted.
1999).

Although

Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir.
the

ALJ’s

errors

here

mandate

remand,

the

plaintiff has not demonstrated that the record so clearly supports
his claim of disability such that further consideration of the
issue would serve no purpose.

See, e.g., Butts v. Barnhart, 388

F.3d 377, 385–86 (2d Cir. 2004).
33

On remand, the ALJ should be directed to: (1) evaluate Dr.
Hearns’ opinion regarding the plaintiff’s functional limitation
for standing or walking in accordance with the treating physician
rule; (2) set forth a residual functional capacity determination
accounting for all of the plaintiff’s limitations and explain that
determination; (3) reassess the plaintiff’s credibility; and (4)
base his step-five analysis on the properly determined residual
functional capacity.
Conclusion
For

the

reasons

set

forth

above,

I

recommend

that

the

Commissioner’s motion for judgment on the pleadings be denied, the
plaintiff’s motion for judgment on the pleadings be granted, and
this case be remanded to the Commissioner for further proceedings
consistent with this opinion.

Pursuant to 28 U.S.C. § 636(b)(1)

and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from this
date to file written objections to this Report and Recommendation.
Such objections shall be filed with the Clerk of the Court, with
extra copies delivered to the chambers of the Honorable Edgardo
Ramos, Room 410, 40 Foley Square, New York, New York 10007, and to
the Chambers of the undersigned, Room 1960, 500 Pearl Street, New
York, New York 10007.

Failure to file timely objections will

preclude appellate review.

34