Garretto v. Colvin

Filing 23

OPINION AND ORDER re: 19 CROSS MOTION for Judgment on the Pleadings . filed by Carolyn W. Colvin, 16 MOTION for Judgment on the Pleadings . filed by Salvatore Garretto. For all the foregoing reasons, plaintiff's mo tion for judgment on the pleadings (D.I. 16) is granted and the matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Commissioner's cross-motion for judgment on the pleadings (D.I. 19) is denied. (As further set forth in this Order.) (Signed by Magistrate Judge Henry B. Pitman on 3/27/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
SALVATORE GARRETTO,

:
Plaintiff,

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

15 Civ. 8734 (HBP)

:

-against-

:

OPINION AND
ORDER

:
:

Defendant.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff brings this action pursuant to section 205(g)
of the Social Security Act (the "Act"), 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the Commissioner
of Social Security ("Commissioner") denying his application for
supplemental security income ("SSI") and disability insurance
benefits ("DIB").

Both plaintiff and the Commissioner have moved

for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure (Docket Items ("D.I.") 16, 19).
Both parties have consented to my exercising plenary jurisdiction
pursuant to 28 U.S.C. § 636(c) (D.I. 9).

For the reasons set

forth below, plaintiff's motion for judgment on the pleadings is

granted, this matter is remanded for further proceedings pursuant
to sentence four of 42 U.S.C. § 405(g), and the Commissioner's
motion for judgment on the pleadings is denied.

II.

Facts1

A.

Procedural Background

In his applications for SSI and DIB, plaintiff alleged
that he became disabled on August 4, 2010 due to spinal
stenosis,2 multilevel degenerative disc disease,3 canal stenosis

1

I recite only those facts relevant to my review. The
administrative record that the Commissioner filed pursuant to 42
U.S.C. § 405(g) (See Notice of Filing of Administrative Record,
dated December 19, 2015 (Docket Item 13) ("Tr.")) more fully sets
out plaintiff's medical history.
2

Stenosis refers to an obstruction or a constriction.
Dorland's Illustrated Medical Dictionary ("Dorland's") at 1769
(32nd ed. 2012). The central canal of the spinal cord is "a
small canal extending throughout the length of the spinal cord,
lined by ependymal cells." Dorland's at 278.
3

Dorland's does not define degenerative disc disease. New
York University's Langone Medical Center defines degenerative
disc disease as a "condition [that] causes the spongy layers of
cartilage that cushion the bones of the spine to deteriorate,
often as a natural part of aging. Over time, changes in the size
and resiliency of the discs can cause persistent, aching pain in
the back or neck, and may make everyday movements difficult."
"Degenerative Disc Disease in Adults," available at
http://nyulangone.org/conditions/degenerative-disc-disease-in-adu
lts (last visited March 6, 2017).
2

at L1-2 and L2-34 and concentric disc bulge with posterior annular5 tear at L1-2 (Tr. 78, 194-97, 209-224).

He later amended

his claim to allege that he was also disabled to due "anxiety and
panic attacks" (Tr. 250).

The claims were initially denied by

the Social Security Administration ("SSA") on October 24, 2012
(Tr. 100).

Plaintiff requested a hearing, and Administrative Law

Judge ("ALJ") Katherine Edgell conducted a hearing on December
17, 2013 during which plaintiff, who was represented by an
attorney, testified on his own behalf (Tr. 50-77).

The ALJ also

conducted a second hearing on April 1, 2014 during which a
vocational expert testified (Tr. 24-49).

On May 9, 2014, the ALJ

issued a decision finding that plaintiff was not disabled (Tr.
11-20).

The ALJ's decision became the Commissioner's final

decision when the Appeals Council denied plaintiff's request for
review on September 4, 2015 (Tr. 1-3).

4

The lumbar vertebrae, denoted by symbols L1 through L5, are
the five vertebrae below the thoracic vertebrae and above the
sacrum. Dorland's at 1662, 2051. The thoracic vertebrae,
denoted by symbols T1 through T12, are usually twelve in number
and are situated between the cervical and the lumbar vertebrae,
giving attachment to the ribs and forming part of the posterior
wall of the thorax. Dorland's at 2051.
5

Annulus refers to a circular or ringlike structure.
Dorland's at 94, 111. The "an[n]ulus fibrosus of intervertebral
disk" is "the circumferential ringlike portion of an
intervertebral disk, composed of fibrocartilage and fibrous
tissue." Dorland's at 111.
3

B.

Social Background

Plaintiff was born in 1967 and was 43 years old at his
alleged disability onset date (Tr. 19).

He graduated from high

school and from a police academy (Tr. 55, 213).6

Plaintiff

worked as a police officer and detective with the Middletown, New
York Police Department from 1993 to August 2010, and his official
retirement for "Accidental Disability" was approved in January
2012 (Tr. 31, 250, 271).

From May 2010 to August 2010, plaintiff

was restricted to light-duty desk work (Tr. 59-61, 396).

Plain-

tiff also sought and received worker's compensation benefits
during the disability period; the record does not reflect when
the claim was approved, but plaintiff reported to SSA that his
worker's compensation benefits terminated on July 26, 2012 (Tr.
194).
Plaintiff is single, has no children and lives alone in
an apartment on the first floor of a two-family house that he
owns (Tr. 53-54, 197, 303).

His mother and aunt live on the

second floor (Tr. 53-54).

6

The record does not identify the police academy from which
plaintiff graduated.
4

C.

Medical Background

1.

Medical Evidence Prior
to Alleged Disability
Onset Date of August 4, 2010

a.

Emergency Room Visit at
Orange Regional Medical Center

On May 11, 2010, plaintiff went to the emergency room
at Orange Regional Medical Center in Goshen, New York with
complaints of long lasting, moderate, achy, dull and throbbing
lumbosacral pain7 (Tr. 373).

The hospital notes state that

plaintiff injured his back when he moved a device used to detect
speeding motorists, and that ever since that event, he had had
intermittent back pain (Tr. 373).

Plaintiff went to the emer-

gency room that day because he had experienced a back spasm and
increased pain (Tr. 373).

A nurse wrote that plaintiff's "func-

tion limitation [was] minimal," he had an antalgic gait,8 and he
was "unable to bend and unable to do activities of daily living"
(Tr. 373).

Plaintiff had normal motor strength, but had lumbar

tenderness and decreased range of motion in his lumbar spine (Tr.
367, 374).
7

"Lumbosacral refers to "the lumbar vertebrae and sacrum, or
to the lumbar and sacral regions." Dorland's at 1076.
8

Antalgic means "counteracting or avoiding pain, as a
posture or gait assumed so as to lessen pain." Dorland's at 97.
5

A lumbar x-ray showed "mild disc space narrowing" at
L1-L2 and L2-L3 and noted "partial lumbarization[9] of the first
sacral segment, a common variant" and "[n]o acute pathology" (Tr.
336).

Plaintiff was diagnosed with low back pain, treated with a

non-steroidal anti-inflammatory drug and a muscle relaxant and
discharged with instructions to follow up with his primary doctor
and orthopedic doctor for continued care and a Magnetic Resonance
Imaging scan ("MRI") (Tr. 373-75, 377).

b.

MRI by Dr. Carl Silverio, Radiologist

Dr. Carl Silverio, a radiologist, conducted an MRI of
plaintiff's lumbar spine on May 15, 2010 (Tr. 313).

The MRI

showed mild multilevel degenerative disc disease at the L1-L2 and
L4-L5 levels, an L1-L2 concentric disc bulge with a posterior
annular tear that contributed to mild central canal stenosis, and
disc bulging which indented the ventral thecal sac at the L2-L3
level and that contributed to mild central canal stenosis (Tr.
313).

The radiologist did not identify any focal disc

herniations,10 and found that the soft tissues were "unremark
9

Lumbarization refers to "a condition in which the first
segment of the sacrum is not fused with the second, so that there
is one additional articulated vertebra and the sacrum consists of
only four segments." Dorland's at 1076.
10

A herniated disc is the protrusion of the nucleus pulposus
(continued...)
6

able" (Tr. 313).

The radiologist indicated that his "impression"

was that plaintiff had "[m]ild degenerative disc disease and disc
bulges . . . with mild central canal stenosis at the L1-L2 and
L2-L3 levels" (Tr. 313).

c. Dr. Marc Rosenblatt, Rehabilitation
and Pain Management Doctor

Dr. Marc J. Rosenblatt, a rehabilitation and pain
management doctor, examined plaintiff on June 15, 2010 (Tr. 303).
Plaintiff stated that, after he was injured at work, he developed
low back pain and pain radiating down his left lower leg (Tr.
303).

Dr. Rosenblatt noted that plaintiff had an MRI that

revealed mild multilevel degenerative disc disease, disc bulges
with mild canal stenosis at L1-2 and L2-3 and a concentric disc
bulge with posterior annual tear at L1-2 (Tr. 303).

Dr.

Rosenblatt examined plaintiff and concluded that plaintiff's
sensation was "intact throughout," that his "[m]otor evaluation
[was] 5/5," and that the "[e]valuation of the thoracolumbar spine
reveals relative suppleness with full range of motion" and
"sporadic trigger points"11 (Tr. 303-04).

The doctor's impres

10

(...continued)
or anulus fibrosus of an intervertebral disk, which may impinge
on spinal nerve roots. Dorland's at 852.
11

A trigger point is "a point on a muscle, ligament, tendon
(continued...)
7

sion was that plaintiff had "disc disease with annular tear at
L1-L2" and Dr. Rosenblatt's report indicates that he wanted to
perform a lower extremity electromyographic study to rule out
radiculopathy12 (Tr. 303-04).
The record does not include any other treatment notes
or reports from Dr. Rosenblatt.

However, plaintiff reported in a

form to SSA that, on an unspecified date, Dr. Rosenblatt administered a "[c]orticosteroid [i]njection to injured disc(s) in [the]
lumbar area" (Tr. 215).

d. Physical Therapy,
June through July 2010

Based on plaintiff's primary physician Dr. Raymond
Basri's referral, plaintiff attended four physical therapy
sessions at Scotchtown Physical Therapy in June and July of 2010
(Tr. 260-62).

Plaintiff stated in the intake form that he had

lower back pain that caused him to have difficulty sitting,
bending and lifting and that the pain was interfering with his
work, sleep and daily routine (Tr. 258).

Plaintiff's pain caused

11

(...continued)
or area of fascia that when touched causes referred pain."
Dorland's at 1480.
12

Radiculitis refers to inflammation of the root of a spinal
nerve, especially of that portion of the root which lies between
the spinal cord and intervertebral canal. Dorland's at 1571.
8

him to experience aching, tingling, numbness and stiffness (Tr.
258-59).

The physical therapist's evaluation showed that plain-

tiff's lower spine range of motion and strength were normal and
straight leg raising tests13 were negative, but that plaintiff
had tightness and discomfort on palpation14 of the L3-L4 vertebrae (Tr. 260-62).

The physical therapist opined that plain-

tiff's symptoms were consistent with a lumbar strain (Tr. 26062).

Plaintiff stopped attending physical therapy because he

felt that it was making his pain worse (Tr. 298).

e.

Dr. Harvey Seigel, Orthopedist

On July 24, 2010, Dr. Harvey Seigel, an orthopedist
from "Post-Trauma Medical Services, P.C.," conducted an "Orthopedic Evaluation" of plaintiff (Tr. 296-302).

Although the record

does not clearly state how Dr. Seigel came to examine plaintiff,
it appears that he provided an independent medical examination
for plaintiff's worker's compensation claim.

Plaintiff reported

13

A straight leg-raising test is a test in which the patient
lies supine and "the symptomatic leg is lifted with the knee
fully extended; pain in the lower extremity between 30 and 90
degrees of elevation indicates lumbar radiculopathy, with the
distribution of the pain indicating the nerve root involved."
Dorland's at 1900.
14

Palpation is the act of feeling with the hand or the
application of the fingers with light pressure to the surface of
the body for the purpose of making a physical diagnosis of the
parts beneath. Dorland's at 1365.
9

to Dr. Seigel that he had left leg weakness and constant, and
sometimes severe, low back pain, that intermittently radiated
down his left leg and occasionally radiated "up his spine and
anteriorly into his left pectoralis area" (Tr. 296, 298-99).
Plaintiff reported that sitting in one position, bending and
lifting increased his pain (Tr. 299).
Dr. Seigel noted that "[a]ll throughout the lengthy
history taking interval, [plaintiff] move[d] about normally" and
"move[d] his head, neck, trunk, as well as the upper and lower
extremities without any evidence of physical discomfort" (Tr.
299-300).

Dr. Seigel found that plaintiff had a full range of

motion in his thoracic and lumbosacral spine, a negative straight
leg raising test, no areas of tenderness or muscle spasm in the
midline or in the paraspinal musculature of the entire thoracic
or lumbosacral spine, that plaintiff's legs had "no evidence of
muscle weakness," that he could walk on his heels and toes and
that he had a normal gait (Tr. 300-01).

Dr. Seigel noted that

plaintiff could bend forward and bring his fingertips to within
six inches of the floor but that plaintiff "straighten[ed] up
slowly" and sat up "slowly and with some difficulty due to low
back pain" (Tr. 300-01).

Dr. Seigel diagnosed plaintiff with a

"lumbosacral sprain/strain, with possible radiculopathy" and
recommended physical therapy (Tr. 302).
10

Dr. Seigel noted that

plaintiff was then doing only light, desk work and opined that
such work was "reasonable at [the] time" (Tr. 302).

f. Dr. Neal Dunkelman, Physical
Medicine and Rehabilitation Doctor

On August 2, 2010, Dr. Neal Dunkelman, a doctor of
physical medicine and rehabilitation, examined plaintiff and
conducted motor nerve and sensory nerve conduction studies and an
electromyography ("EMG")15 to assess plaintiff's back pain.

Dr.

Dunkelman found that plaintiff had tenderness and spasm upon
palpation of the lumbar muscles, lumbar flexion of 60 degrees
(out of 90),16 a negative straight leg raising test and "no
sensory deficits" (Tr. 265-66).

Dr. Dunkelman's studies all

showed normal results and the doctor concluded that there was "no
electrical evidence of radiculopathy or neuropathy" (Tr. 265-66).

15

An EMG is "an electrodiagnostic technique for recording
the extracellular activity . . . of skeletal muscles at rest,
during voluntary contractions, and during electrical
stimulation." Dorland's at 602.
16

Many of the physicians who examined plaintiff assessed his
range of motion in the lumbar and/or cervical spine. Full
flexion of the lumbar spine is 90 degrees. Full lateral flexion
of the lumbar spine is 25 degrees bilaterally. Full flexion of
the cervical spine is 50 degrees and full extension of the
cervical spine is 60 degrees (See Tr. 433-34, which includes a
copy of the Range of Motion Chart prepared by the New York State
Department of Temporary and Disability Assistance (Rev. March
2002)).
11

2.

Medical Evidence
After Alleged Disability
Onset Date of August 4, 2010

a. Dr. Raymond Basri,
Internal Medicine Doctor

Although Dr. Basri indicated that he had treated
plaintiff on a regular basis once a week starting in June of 2010
(Tr. 273, 425), the record contains only two notes from Dr. Basri
that pre-date February 2011.

There is a note from Dr. Basri

dated August 6, 2010 that is entitled "Activity Restriction" (Tr.
253).

The note is not addressed to anyone and states that

"[t]his letter is to verify that Sal Garretto has currently been
under my care from 8-4-10 to 8-6-10" and that he cannot return to
work "till [sic] further notice due to back injury" (Tr. 253).
The record also includes a letter that Dr. Basri wrote
on December 10, 2010 to the Medical Board of the New York State
and Local Retirement System (Tr. 273).

Dr. Basri wrote that he

had diagnosed plaintiff with degenerative joint disease of the
lumboscracral spine and an annual tear of the lumbar discs at L12 and L2-3 (Tr. 273).

Dr. Basri opined that plaintiff was

"totally disabled" on the basis of his back condition (Tr. 273).
Dr. Basri noted that he had prescribed narcotic pain medication
for plaintiff, and had referred plaintiff for MRIs, physical

12

therapy, pain management and for a consultation with a neurosurgeon (Tr. 273).17
Dr. Basri's treatment notes from February 2011 through
December 2013 are extremely brief and provide no details and many
of the notations are illegible (Tr. 453-58).

The summary pro-

vided here is, therefore, based on only the legible portions of
these notes.

On April 5, 2011, Dr. Basri reported that plain-

tiff's lower back pain was "moderately bad;" on May 3, 2011 Dr.
Basri noted that plaintiff's lower back pain was "controlled" and
radiated to both of his legs and that his vital signs were
"stable" (Tr. 457).

On May 31, 2011, plaintiff had severe pain,

on July 5, 2011, Dr. Basri noted that plaintiff's pain was better
and on August 2, 2011 Dr. Basri noted that plaintiff's pain was
well-controlled (Tr. 457).

Later in August 2011, Dr. Basri's

notes indicate that plaintiff was experiencing moderate pain (Tr.
457).
On March 28, 2012, plaintiff reported that he had had
continuous lower back pain and on May 5, 2012, Dr. Basri noted
that plaintiff still had pain.

In June 2012, Dr. Basri noted

that he asked plaintiff to consider surgery (Tr. 456).

17

In June

Dr. Basri addressed a similarly worded letter to plaintiff's attorney on March 28, 2012 (Tr. 274).
13

and July of 2012, plaintiff reported that he had moderate lower
back pain and was using a TENS device18 (Tr. 456).
On September 18, 2012, Dr. Basri completed a form
medical source statement for the New York State Office of Temporary and Disability Assistance, Division of Disability Determinations (Tr. 425).

Dr. Basri diagnosed plaintiff with "Lumbar Disc

Herniation" that caused lower back pain that radiated to both
legs and indicated that the duration of plaintiff's condition was
"unknown" (Tr. 425-26).

Plaintiff's treatment included narcotic

analgesics and physical therapy, but Dr. Basri noted that plaintiff had "refused surgery + epidurals" (Tr. 426, 432).

Dr. Basri

reported that hydrocodone relieved plaintiff's pain for five to
six hours and that plaintiff had a "good response" to using a
corset and to treatment with a TENS device (Tr. 429).

Dr. Basri

did not find that plaintiff had "displayed any behavior suggestive of a significant psychiatric disorder," did not report any

18

TENS refers to transcutaneous electrical nerve stimulation. Dorland's at 1951. "Transcutaneous electrical nerve
stimulation (TENS) is a common form of noninvasive pain treatment
involving the use of electrical current, transmitted via electrodes placed on the skin." McGann v. Colvin, 14 Civ. 1585
(KPF), 2015 WL 5098107 at *1 n.2 (S.D.N.Y. Aug. 31, 2015)
(Failla, D.J.), citing Josinari M. DeSantana et al., Effectiveness of Transcutaneous Electrical Nerve Stimulation for Treatment
of Hyperalgesia and Pain, Current Medicine Group (2008), available online at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2746624.
14

other conditions that were "significant to recovery" and did not
mention plaintiff's prescriptions for anti-anxiety medication or
sleep aids in the portion of the form that asked him to list the
medications he had prescribed for plaintiff (Tr. 426, 432).

Dr.

Basri reported that his examination disclosed that plaintiff's
flexion of the lumbar spine was 60 degrees (out of 90) and
lateral flexion of the lumbar spine was 10 degrees (out of 25)
(Tr. 434).

Dr. Basri opined that plaintiff could lift and carry

ten pounds occasionally, could stand and/or walk for less than
two hours per day, could sit for less than six hours per day and
was limited in pushing and pulling (Tr. 430-31).
In November 2012, Dr. Basri noted that plaintiff had
moderate lower back pain (Tr. 455).

In January 2013, plaintiff

reported that he experienced severe lower back pain if he stayed
in one position for too long (Tr. 455).

In January and in

February 2013, Dr. Basri noted that plaintiff had moderate lower
back pain and in March through June of 2013, plaintiff reported
to Dr. Basri that he was "doing ok," but experiencing moderate
pain (Tr. 454-55).
In October 2013, plaintiff reported increased pain for
several days, and Dr. Basri gave plaintiff prescriptions for
hydrocodone and morphine sulfate (Tr. 453).

On December 2, 2013,

plaintiff reported that he had had pain on his right side for two
15

days and went to the emergency room where he was seen by a
surgeon (Tr. 453).19
Dr. Basri's treatment notes also indicate that plaintiff was experiencing anxiety and panic attacks relating to his
back pain and that Dr. Basri prescribed anti-anxiety medication
(including Xanax) and sleep aids (including Ambien) to treat
these conditions for more than a twelve-month period (Tr. 45658).

Dr. Basri's notes also indicate that he prescribed Cymbalta

for plaintiff's depression (Tr. 457).

There are legible refer-

ences in Dr. Basri's notes to prescriptions for Xanax, Ambien
and/or Cymbalta on July 5, 2011, August 2, 2011, August 30, 2011,
October 4, 2011, October 31, 2011 August 14, 2012, September 18,
2012, October 16, 2012, November 20, 2012, January 3, 2013, July
23, 2013, August 20, 2013, September 24, 2013 and November 13,
2013 (Tr. 453-58).

On August 14, 2012, Dr. Basri noted that

plaintiff reported that he had two anxiety attacks related to his
back pain (Tr. 456).

Dr. Basri noted similar incidents in July

and November 2013 (Tr. 453-54).

19

The hospital records from this visit are not in the
record.
16

b. Dr. Steven Jacobs, Neurosurgeon

On August 17, 2010, Dr. Steven Jacobs, a neurosurgeon,
examined plaintiff and provided an "Initial Comprehensive Consultation" at Dr. Basri's request (Tr. 394).

Plaintiff told Dr.

Jacobs that he had severe lower back pain that he rated as an 8
or 9 out of 10, intermittent numbness and tingling in his left
leg and intermittent weakness in both legs (Tr. 395).

Plaintiff

reported that he was taking Vicodin and Thyroidal for pain and
Skelaxin for muscle spasm (Tr. 396).

Plaintiff also reported

that the pain did not respond to physical therapy or Vicodin and
that he had not had epidural or trigger point injections (Tr.
395).

Plaintiff stated that his pain was aggravated by lifting,

bending, pushing and pulling (Tr. 395).

Plaintiff reported that

he had difficulty rising from a seated position, maintaining one
position for more than five minutes, dressing and undressing,
sleeping through the night and "performing household tasks, such
as cooking, cleaning, doing the laundry, making a bed or shopping" (Tr. 396).
Dr. Jacobs noted that plaintiff could not remain in one
position while reporting his history and that plaintiff had
increased pain when rising from a seated position, going from a
supine position and then back to a seated position, rolling over,

17

getting on and off the examination table, changing positions and
that plaintiff had trigger points, muscle spasms and lordosis20
(Tr. 396-97).

A straight leg raising test with plaintiff in the

supine position was positive at 45 degrees on the left side but
was negative when plaintiff was in a seated position (Tr. 39697).

Dr. Jacobs found that plaintiff had a painful and re-

stricted range of motion in his lumbar spine and noted that
plaintiff's
range of motion of the lumbar spine is restricted and
painful. Forward flexion is 0 to 45o and painful (normal 0 to 90o). Extension is painful 0 to 15o (normal 0
to 30o). Right and left rotation is painful 0 to 30o
(normal 0 to 45o). Right and left lateral bending is
painful at 0 to 15o (normal 0 to 25o). There is obvious paravertebral muscle spasm and straightening of the
normal lumbar lordosis.
(Tr. 397).

Dr. Jacobs found that plaintiff's motor strength in

the L4, L5 and S1 nerve roots was five out of five bilaterally,
but that there was pain to palpation to plaintiff's lower back,
to the third fourth and fifth lumbar vertebral bodies, the first
sacrum and the lumbar paraspinal muscles from L1 to S1 bilaterally and from T9 to T12 bilaterally (Tr. 397).

Plaintiff's pain

increased when he walked on his toes, but Dr. Jacobs found that

20

Lordosis refers to "abnormally increased concavity in the
curvature of the lumbar vertebral column as viewed from the
side." Dorland's at 1074. Lumbar lordosis refers to "the
dorsally concave curvature of the lumbar vertebral column when
seen from the side." Dorland's at 1074.
18

plaintiff's ability to walk on his heels and toes was "grossly
intact" (Tr. 397).
Dr. Jacobs described plaintiff as "a patient in pain,"
found that plaintiff's prognosis was guarded and opined that
plaintiff had a "marked 75% disability and is totally disabled
from his job description as a police detective" (Tr. 397).

Dr.

Jacobs diagnosed plaintiff with a traumatic lumbar disc displacement and post-traumatic lumbar disc degeneration; he gave plaintiff a prescription for a back brace and ordered a discogram21
(Tr. 398).

c. Physical Therapy, August
2010 through October 2010

Plaintiff attended approximately 20 physical therapy
sessions between August and October 2010 (Tr. 347-52).

At his

initial visit on August 13, 2010, plaintiff reported that he had
low back pain that radiated to his left leg, left leg
paresthesia,22 fatigue in his lower back and that he was unable
to sit for long time (Tr. 347-49).

Plaintiff stated that he had

a "history of anxiety attacks" and that he had been prescribed
21

A discogram is a radiograph of an intervetebral disc.
Dorland's at 527, 547.
22

Paresthesia is "an abnormal touch sensation, such as
burning, prickling, or formication, often in the absence of an
external stimulus." Dorland's at 1383.
19

Ambien, Vicodin, Skelarin and toradol PRM (Tr. 347).

Plaintiff's

straight leg raising test was positive at 45 degrees (Tr. 34749).

The grip in plaintiff's right hand was 140 pounds and his

left hand grip was 100 pounds (Tr. 348).

The therapist opined

that plaintiff had a lumbar spine derangement (Tr. 347-49).
On August 20 and 24, 2010, plaintiff told his physical
therapist that he was experiencing increased back pain (Tr. 348).
In a September 9, 2010 progress note, the therapist noted that
plaintiff still had numbness in his lower leg and that his
average pain was 5 out of 10, that he had weakness in his left
leg of "4-4+/5," and that his spinal range of motion was 50% with
pain (Tr. 352).

d.

Dr. Donald Davis,
Consulting Neurosurgeon

Dr. Donald Davis, a neurosurgeon, conducted independent
medical examinations of plaintiff on October 8, 2010 and August
19, 2011 in connection with plaintiff's worker's compensation
claim (Tr. 286-90, 399-408).
At the October 2010 visit, plaintiff complained of
lumbar pain, primarily in his lumbosacral spine, with some
radiation into both legs and of significant pain in his lower
back (Tr. 287).

Plaintiff also told Dr. Davis that he had

20

occasional weakness in both legs that caused him to have some
problems in standing and walking (Tr. 287).
Dr. Davis noted that the radiological findings showed
that plaintiff had an annular tear at L1-2, L2-3, bulging discs
and multilevel degenerative disc disease, but that an EMG was
negative and, consistent with Dr. Davis' examination, did not
suggest any neural element involvement (Tr. 287-88).

On examina-

tion, Dr. Davis found that plaintiff had "limitation of flexion
and extension and pain on direct palpation of the lumbar spine"
(Tr. 287-88).

Dr. Davis opined that plaintiff had a sprain to

his lumbar spine and noted that Drs. Siegel and Jacobs had
reached the same opinion (Tr. 286).

He noted that plaintiff's

MRI report suggested that plaintiff had degenerative disc disease
with stenosis at multiple levels but did not show evidence of a
herniated disc (Tr. 286).

Dr. Davis concluded that plaintiff's

"pathology [was] primarily axial"23 and showed that there was
aggravation of pre-existing multilevel degenerative disc disease
(Tr. 288).
Dr. Davis also opined that plaintiff should not lift
anything heavier than five to ten pounds, avoid prolonged bend-

23

Axial back pain is "low back pain limited to the middle
(spinal axis) of the lumbar region." Dorland's at 1363.
21

ing, reaching and stooping and should alternate frequently
between sitting and standing (Tr. 287).
Dr. Davis supplemented the opinions from his October
2010 examination with a letter dated November 10, 2010 (Tr. 40208).

Dr. Davis clarified that plaintiff's prognosis is "quite

guarded and . . . that it is unlikely that [plaintiff would be
able to] return to the workplace particularly in his previous job
description" (Tr. 403).

Dr. Davis did not recommend surgery for

plaintiff because he believed that plaintiff had reached his
maximum improvement and that surgery would provide no incremental
benefit (Tr. 403).
The results of Dr. Davis' examination in August 2011
were similar to those of his previous examination (Tr. 282-83).
Dr. Davis found that plaintiff had severe pain in his lower
lumbar spine and lumbar spasm (Pl. 282-83).

Dr. Davis diagnosed

plaintiff with "[s]prain/strain to the lumbar spine with a
mechanical back injury and consistent low back pain secondary to
soft tissue injury and myofascial pain" and "degenerative disc
disease at multiple levels with moderate spinal stenosis" (Tr.
281).

Dr. Davis noted that plaintiff had severe pain on any type

of flexion or extension of the spine (Tr. 282).
Dr. Davis again opined that plaintiff had reached his
maximum improvement, that he should avoid lifting anything

22

heavier than five to ten pounds, prolonged bending, reaching or
stooping and should change positions "as necessary" (Tr. 282).
The doctor noted that plaintiff took pain medication and did not
recommend that plaintiff receive further physical therapy or
other treatment (Tr. 282).

e. Dr. Jose Corvalan
Consultative Orthopedist

In October 2012, Dr. Jose Corvalan, an orthopedist,
examined plaintiff at the request of the New York State Bureau of
Disability Determinations (Tr. 438).

Plaintiff told Dr. Corvalan

that he had pain in his lower back that radiated to his legs with
numbness and tingling, as well as neck pain triggered by moving
his neck (Tr. 437-38).

Dr. Corvalan noted that plaintiff's

medications were zolpidem, alprazolam, hydrocodone with
acetaminophen, omeprazole and simvastatin (Tr. 437-38).24

The

doctor noted that plaintiff showered and dressed daily, cooked
twice a day and cleaned, did laundry, shopped once a week,
watched television, listened to the radio, read, went out to
socialize and that his hobby was photography (Tr. 437-38).
Dr. Corvalan examined plaintiff and found that he had a
normal gait and could walk on his heels and toes, squat fully and

24

Dorland's at 878, 1319, 1718.
23

rise from a chair without difficulty (Tr. 438-39).

However,

plaintiff had limited range of motion in his cervical and
lumbosacral spine, tenderness on lumbar palpation and a positive
straight leg raising test at 30 degrees in the supine and sitting
positions bilaterally (Tr. 438-39).

Plaintiff declined to

attempt any backward extension (Tr. 439).

Plaintiff's range of

motion in the cervical spine was 40 degrees in flexion (out of
50) and 30 degrees in extension (out of 60) and 30 degrees in
rotation bilaterally (out of 80), with no cervical or
paracervical spasm or pain (Tr. 438).

Plaintiff's range of

motion in the thoracic and lumbar spine was 40 degrees in flexion
(out of 90) and 20 degrees in lateral flexion (out of 25) and
plaintiff had tenderness on palpation in the lumbar spine area
(Tr. 438-39).
Dr. Corvalan diagnosed plaintiff with low back pain,
neck pain and high cholesterol and opined that plaintiff had
moderate limitations in his ability to move his neck, sit and
stand for long periods of time, walk long distances, bend, squat,
climb stairs and lift heavy objects (Tr. 439).

24

D.

Proceedings Before the ALJ

1.

Plaintiff's Testimony

Plaintiff testified at the December 17, 2013 hearing
that he could not work due to back pain, insomnia, anxiety and
panic attacks (Tr. 61).
Plaintiff testified he had "paralyzing" anxiety attacks, which caused tightness in his chest, breathing trouble,
tunnel vision, numbness in his hand and a feeling that he was
having a heart attack and on the verge of losing consciousness
(Tr. 61, 69, 74-75).

Plaintiff's anxiety attacks were sporadic -

- he could go days without having an attack or he could have
attacks several times in a week or he could have daily attacks
for a week (Tr. 61).

The anxiety attacks lasted twenty minutes

to an hour (Tr. 75).

Plaintiff's anxiety attacks sometimes woke

him up out of a deep sleep (Tr. 61).

Plaintiff testified that he

was treated by his primary care physician Dr. Basri for his
anxiety attacks and had never seen a mental health professional
for his anxiety (Tr. 61).

Plaintiff stated that Dr. Basri

prescribed plaintiff Xanax, which was "somewhat" helpful to
address his symptoms and helped him sleep (Tr. 61, 69-70).
Plaintiff also testified that he had "deep throbbing,
aching" pain in his back and that he had the sensation that his

25

lower back was asleep and tingling (Tr. 75).

He testified that

initially his leg pain was limited to his left leg, but that he
now had pain in both legs, especially when he was sitting or
standing for a "long period of time" (Tr. 75).

Plaintiff testi-

fied that he slept just two to three hours a night due to pain
and anxiety (Tr. 61, 63).

Plaintiff stated that his back pain

had worsened on May 11, 2010, when he rose from a sitting position and felt back pain with total leg weakness and tingling (Tr.
60, 372).

Plaintiff was treated with physical therapy, which he

said did not help, and a TENS device (Tr. 62-63, 67).

Plaintiff

testified that he also took morphine and hydrocodone to treat his
back pain and testified that they helped alleviate the sharpness
of the pain but caused him to sweat, have dry mouth and bowel
obstructions and anxiety about potential drug addiction (Tr. 63).
Plaintiff described a "good day" as one in which he got more than
two to three hours of sleep, was not taking "as much pain medication" and was not experiencing stomach problems (Tr. 76).
Plaintiff decided against having back surgery because his doctors
told him that there was no guarantee that it would completely
alleviate the pain and there was a risk that surgery might
actually exacerbate his pain (Tr. 63, 72-73).
Plaintiff testified that he had to change positions
when sitting but that he could not quantify how long he could sit

26

before needing to change positions (Tr. 67-68).

Plaintiff

testified that on one occasion he had driven his car for 45-60
minutes without a break to go to the doctor (Tr. 66-68).

Plain-

tiff also testified that due to his back pain, he was limited in
his kneeling, squatting and reaching and sometimes had difficulty
standing up straight (Tr. 68-69, 76, 234-36).

Plaintiff could

stand and walk for about 20-40 minutes, depending on the day (Tr.
68).

He could keep his apartment "[a]s tidy as a bachelor can"

and could tidy up outside his house (Tr. 63-65, 73-74).

It would

take plaintiff one to two days to mow his lawn with a ride-on
lawn mower because he would need to take breaks every 15-20
minutes to lie down (Tr. 74).

Plaintiff stated that he could

prepare meals like frozen dinners, sandwiches and soup, and could
do cleaning and laundry, but that he hired out "handyman jobs"
(Tr. 65, 75, 231-32).

Plaintiff had trouble dressing himself and

had to lie down to put on pants (Tr. 65, 75, 231-32).
shop for 20 minutes weekly (Tr. 233).

He could

Plaintiff had trouble

opening jars due to weakness and pain in his right hand, which
had been broken twice in the past and was never "set right" (Tr.
68).

Although his hand was weak, plaintiff could write checks

and zip and button clothing (Tr. 68-69).
Plaintiff testified that he spends his time reading
about current events, watching television and walking around in

27

his backyard; his hobbies were photography, reading and surfing
the internet (Tr. 63-64, 233).

2.

Vocational Expert Testimony

Vocational expert Mary Anderson testified at the
hearing and answered questions about whether hypothetical individuals with plaintiff's vocational profile and varying restrictions could perform jobs in the national economy.
Anderson testified that a person with plaintiff's
vocational profile who can only lift or carry five to ten pounds,
who can only bend, reach and stoop occasionally and who needs to
change position at-will from sitting to standing, but could not
engage in "prolonged flexion or extension of the spine" could not
do plaintiff's past work or any other kind of work (Tr. 33-34).
Anderson testified that a person who can only lift or
carry ten to twenty pounds occasionally, who can sit, stand and
walk for up to six hours and can intermittently flex or extend
the neck in any direction over the course of six hours, stoop,
squat or climb stairs as needed for up to six hours in an eight

28

hour workday, could do the light25 job of a travel clerk, which
has 966,150 positions nationally (Tr. 36-37, 47-48).
Anderson further testified that a person who is limited
to sedentary26 desk work, who can only lift or carry five to ten
pounds, was permitted to change between sitting and standing
every 30 to 60 minutes and could occasionally reach, stoop and
bend could do the work of a charge account clerk, which has
196,660 positions nationally or an address clerk, which has
96,560 positions nationally (Tr. 38-39, 46-47).

25

The regulations define "light work" as that work which
involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a
good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling
of arm or leg controls.

20 C.F.R. §§ 404.1567(b), 416.967(b).
26

The regulations define "sedentary work" as that work which
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. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. §§ 404.1567(a), 416.967(a).
29

Anderson also testified that if the latter two
hypotheticals were changed such that the individual had panic
attacks two to three times per week accompanied by pain and
tightness in his chest and tingling in his hand that takes him
off-task for up to one hour out of a workday, the individual
could not do any work (Tr. 43-44).

The expert testified that

anyone who is off-task for more than 48 minutes per day in
addition to regular breaks was "really not employable" (Tr. 45).

III.

Analysis

A.

Applicable Legal
Principles

1.

Standard of Review

The Court may set aside the final decision of the
Commissioner only if it is not supported by substantial evidence
or if it is based upon an erroneous legal standard.

42 U.S.C.

§ 405(g); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per
curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012);
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

Moreover,

the court cannot "affirm an administrative action on grounds
different from those considered by the agency."

30

Lesterhuis v.

Colvin, 805 F.3d 83, 87 (2d Cir. 2015), quoting Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
The Court first reviews the Commissioner's decision for
compliance with the correct legal standards; only then does it
determine whether the Commissioner's conclusions were supported
by substantial evidence.

Byam v. Barnhart, 336 F.3d 172, 179 (2d

Cir. 2003), citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999).

"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) (Marrero, D.J.).

However, "where application

of the correct legal principles to the record could lead to only
one conclusion, there is no need to require agency reconsideration."

Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
"'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.'"

Talavera v. Astrue,

supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S.
389, 401 (1971).

Consequently, "[e]ven where the administrative

record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive
effect' so long as they are supported by substantial evidence."
Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam),

31

quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Thus, "[i]n determining whether the agency's findings were
supported by substantial evidence, 'the reviewing court is
required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn.'"

Selian v. Astrue, supra, 708 F.3d at 417 (citation

omitted).

2.

Determination
of Disability

A claimant is entitled to SSI and DIB if the claimant
can establish an "inability 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 twelve months."27
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v.
Walton, 535 U.S. 212, 217-22 (2002) (both the impairment and the
inability to work must last twelve months).

In addition, to

obtain DIB, the claimant must have become disabled between the
alleged onset date and the date on which he was last insured.

27

The standards that must be met to receive SSI benefits
under Title XVI of the Act are the same as the standards that
must be met in order to receive DIB under Title II of the Act.
Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases
addressing the former are equally applicable to cases involving
the latter.
32

See 42 U.S.C. §§ 416(i), 423(a); 20 C.F.R. §§ 404.130, 404.315;
McKinstry v. Astrue, 511 F. App'x 110, 111 (2d Cir. 2013) (summary order), citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.
2008).
The impairment must be demonstrated by "medically
acceptable clinical and laboratory diagnostic techniques," 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D) and it must be "of such
severity" that the claimant cannot perform his previous work and
"cannot, considering his age, education and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy."
1382c(a)(3)(B).

42 U.S.C. §§ 423(d)(2)(A), §

Whether such work is actually available in the

area where the claimant resides is immaterial.

42 U.S.C. §§

423(d)(2)(A), 1382c(a)(3)(B).
In making the disability determination, 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) (internal quotation marks omitted).

33

In determining whether an individual is disabled, the
Commissioner must follow the five-step process required by the
regulations.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v),

416.920(a)(4)(i)(v); see Selian v. Astrue, supra, 708 F.3d at
417-18; Talavera v. Astrue, supra, 697 F.3d at 151.

The first

step is a determination of whether the claimant is engaged in
substantial gainful activity.
416.920(a)(4)(i).

20 C.F.R. §§ 404.1520(a)(4)(i),

If he is not, the second step requires deter-

mining whether the claimant has a "severe medically determinable
physical or mental impairment."
416.920(a)(4)(ii).

20 C.F.R. §§ 404.1520(a)(4)(ii),

If he does, the inquiry at the third step is

whether any of these impairments meet one of the listings in
Appendix 1 of the regulations.
416.920(a)(4)(iii).

20 C.F.R. §§ 404.1520(a)(4)(iii),

To be found disabled based on a listing, the

claimant's medically determinable impairment must satisfy all of
the criteria of the relevant listing.

20 C.F.R. §

404.1525(c)(3); Sullivan v. Zebley, 493 U.S. 521, 530 (1990);
Otts v. Comm'r of Soc. Sec., 249 F. App'x 887, 888 (2d Cir.
2007).

If the claimant meets a listing, the claimant is dis-

abled.

20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant does not meet any of the listings in

Appendix 1, step four requires an assessment of the claimant's
residual functional capacity ("RFC") and whether the claimant can

34

still perform his past relevant work given his RFC.

20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv); see Barnhart v. Thomas,
supra, 540 U.S. at 24-25.

If he cannot, then the fifth step

requires assessment of whether, given claimant's RFC, he can make
an adjustment to other work.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

If he cannot, he will be found disabled.

20

C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
RFC is defined in the applicable regulations as "the
most [the claimant] can still do despite his limitations."
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

To determine RFC,

the ALJ "identif[ies] the individual's functional limitations or
restrictions and assess[es] his or her work-related abilities on
a function-by-function basis, including the functions in paragraphs (b),(c)and (d) of 20 [C.F.R. §§] 404.1545 and 416.945."
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per
curiam), quoting Social Security Ruling 96-8p, 1996 WL 374184 at
*1 (July 2, 1996).

The results of this assessment determine the

claimant's ability to perform the exertional demands28 of sustained work which may be categorized as sedentary, light, medium,
heavy or very heavy.

20 C.F.R. §§ 404.1567, 416.967; see Schaal

28

Exertional limitations are those which "affect [plaintiff's] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling)." 20
C.F.R. §§ 404.1569a(b), 416.969a(b).
35

v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998).

This ability may

then be found to be limited further by nonexertional factors that
restrict claimant's ability to work.29

See Michaels v. Colvin,

621 F. App'x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v.
Astrue, 595 F.3d 402, 410 (2d Cir. 2010).
The claimant bears the initial burden of proving
disability with respect to the first four steps.

Once the

claimant has satisfied this burden, the burden shifts to the
Commissioner to prove the final step -- that the claimant's RFC
allows the claimant to perform some work other than his past
work.

Selian v. Astrue, supra, 708 F.3d at 418; Burgess v.

Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377,
383 (2d Cir. 2004), amended in part on other grounds on reh'g,
416 F.3d 101 (2d Cir. 2005).
In some cases, the Commissioner can rely exclusively on
the medical-vocational guidelines (the "Grids") contained in
C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step.

Gray v. Chater, 903 F. Supp. 293, 297-98

29

Nonexertional limitations are those which "affect only
[plaintiff's] ability to meet the demands of jobs other than the
strength demands," including difficulty functioning because of
nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping,
climbing, crawling or crouching. 20 C.F.R. §§ 404.1569a(c),
416.969a(c).
36

(N.D.N.Y. 1995).

"The Grid[s] take[] into account the claimant's

RFC in conjunction with the claimant's age, education and work
experience.

Based on these factors, the Grid[s] indicate[]

whether the claimant can engage in any other substantial gainful
work which exists in the national economy."

Gray v. Chater,

supra, 903 F. Supp. at 298; see Butts v. Barnhart, supra, 388
F.3d at 383.
Exclusive reliance on the Grids is not appropriate
where nonexertional limitations "significantly diminish [a
claimant's] ability to work."

Bapp v. Bowen, 802 F.2d 601, 603

(2d Cir. 1986); accord Butts v. Barnhart, supra, 388 F.3d at 383.
"Significantly diminish" means "the additional loss of work
capacity beyond a negligible one or, in other words, one that so
narrows a claimant's possible range of work as to deprive him of
a meaningful employment opportunity."

Bapp v. Bowen, supra, 802

F.2d at 606; accord Selian v. Astrue, supra, 708 F.3d at 421;
Zabala v. Astrue, supra, 595 F.3d at 411.

When the ALJ finds

that the nonexertional limitations significantly diminish a
claimant's ability to work, then the Commissioner must introduce
the testimony of a vocational expert or other similar evidence in
order to prove "that jobs exist in the economy which the claimant
can obtain and perform."

Butts v. Barnhart, supra, 388 F.3d at

383-84 (internal quotation marks and citation omitted); see also

37

Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the
regulations make clear that the individual's particular limitations must be considered.").

An ALJ may rely on a vocational

expert's testimony presented in response to a hypothetical if
there is "substantial record evidence to support the
assumption[s] upon which the vocational expert base[s] his
opinion."

Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir.

1983); accord Snyder v. Colvin, 15-3502, 2016 WL 3570107 at *2
(2d Cir. June 30, 2016) (summary order) ("When the hypothetical
posed to the vocational expert is based on a residual functional
capacity finding that is supported by substantial evidence, the
hypothetical is proper and the ALJ is entitled to rely on the
vocational expert's testimony."); Rivera v. Colvin, 11 Civ. 7469,
2014 WL 3732317 at *40 (S.D.N.Y. July 28, 2014) (Swain, D.J.)
("Provided that the characteristics described in the hypothetical
question accurately reflect the limitations and capabilities of
the claimant and are based on substantial evidence in the record,
the ALJ may then rely on the vocational expert's testimony
regarding jobs that could be performed by a person with those
characteristics.").

38

3.

Duty to Develop
the Record

"It is the rule in [the Second] [C]ircuit that 'the
ALJ, unlike a judge in a trial, must [him]self affirmatively
develop the record' in light of 'the essentially non-adversarial
nature of a benefits proceeding.'"

Pratts v. Chater, 94 F.3d 34,

37 (2d Cir. 1996), quoting Echevarria v. Sec'y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (alterations added); see
also 20 C.F.R. § 404.1512(d).
This duty exists even when the claimant is represented
by counsel or . . . by a paralegal . . . . The [Commissioner's] regulations describe this duty by stating
that, "[b]efore we make a determination that you are
not disabled, we will develop your complete medical
history . . . [and] will make every reasonable effort
to help you get medical reports from your own medical
sources when you give us permission to request the
reports." 20 C.F.R. § 404.1512(d).
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); accord Petrie v.
Astrue, 412 F. App'x 401, 406 (2d Cir. 2011) (summary order)
("[W]here there are deficiencies in the record, an ALJ is under
an affirmative obligation to develop a claimant's medical history
even when the claimant is represented by counsel." (citation
omitted, alteration in original)); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004) (per curiam) ("We have stated many times
that the ALJ generally has an affirmative obligation to develop
the administrative record . . . ." (internal quotation marks and

39

citation omitted)); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000) ("The ALJ has an obligation to develop the record in light
of the non-adversarial nature of the benefits proceedings,
regardless of whether the claimant is represented by counsel.");
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (same);
Randolph v. Colvin, 12 Civ. 8539 (LTS)(JLC), 2014 WL 2938184 at
*8 (S.D.N.Y. June 30, 2014) (Cott, M.J.) (Report & Recommendation) (same); Van Dien v. Barnhart, 04 Civ. 7259 (PKC), 2006 WL
785281 at *14 (S.D.N.Y. Mar. 24, 2006) (Castel, D.J.) (same).
The ALJ is required "affirmatively to seek out additional evidence only where there are 'obvious gaps' in the
administrative record."

Eusepi v. Colvin, 595 F. App'x 7, 9 (2d

Cir. 2014) (summary order), quoting Rosa v. Callahan, 168 F.3d
72, 79 & n.5 (2d Cir. 1999); accord Swiantek v. Commr. of Social
Sec., 588 F. App'x 82, 84 (2d Cir. 2015) (summary order); see
also 20 C.F.R. § 404.1512(d) ("Before we make a determination
that you are not disabled, we will develop your complete medical
history . . . .").30

"[T]he current amended regulations . . .

30

On March 26, 2012, the regulations were modified to delete
language which imposed a duty to recontact a treating physician
when "the report from [a claimant's] medical source contain[ed] a
conflict or ambiguity that must be resolved, the report does not
contain all the necessary information, or does not appear to be
based on medically acceptable clinical and laboratory diagnostic
techniques." 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) (2010);
see How We Collect & Consider Evidence of Disability, 77 Fed.
(continued...)
40

give an ALJ more discretion to 'determine the best way to resolve
the inconsistency or insufficiency' based on the facts of the
case . . . ."

Rolon v. Comm'r of Soc. Sec., 994 F. Supp. 2d 496,

505 (S.D.N.Y. 2014) (Nathan, D.J.), quoting 20 C.F.R. §§
404.1520b(c)(1), 416.920b(c)(1) (2013).

However, the regulations

continue to "contemplate the ALJ recontacting treating physicians
when 'the additional information needed is directly related to
that source's medical opinion.'"

Jimenez v. Astrue, 12 Civ. 3477

(GWG), 2013 WL 4400533 at *11 (S.D.N.Y. Aug. 14, 2013)
(Gorenstein, M.J.), quoting How We Collect and Consider Evidence
of Disability, supra, 77 Fed. Reg. at 10,652.
Thus, even where a claimant is represented by counsel
or a paralegal, an ALJ is under a duty to seek additional evidence or clarification . . . . "[I]f a
physician's finding in a report is believed to be
insufficiently explained, lacking in support, or inconsistent with the physician's other reports, the ALJ
must seek clarification and additional information from
the physician." Calzada v. Asture, 753 F. Supp. 2d
250, 269 (S.D.N.Y. 2010); see also Rosa, 168 F.3d at 79
(citing Perez v. Chater, 77 F.3d 41, 47 (2d Cir.
1996)). The rationale behind this rule is that "a
treating physician's 'failure to include this type of
support for the findings in his report does not mean
that such support does not exist; he might not have
provided this information in the report because he did
not know that the ALJ would consider it critical to the

30

(...continued)
Reg. 10,651, 10,651 (Feb. 23, 2012) (codified at 20 C.F.R. pts.
404, 416). The amended regulations apply here. See Lowry v.
Astrue, 474 F. App'x 801, 804 n.2 (2d Cir. 2012) (summary order)
(applying the version of the regulations that were current at the
time the ALJ adjudicated the plaintiff's claim).
41

disposition of the case.'" Rosa, 168 F.3d at 80 (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998)).
Geronimo v. Colvin, 13 Civ. 8263 (ALC), 2015 WL 736150 at *5
(S.D.N.Y. Feb. 20, 2015) (Carter, D.J.).
"The duty to develop the record is particularly important where an applicant alleges he is suffering from a mental
illness[], due to the difficulty in determining 'whether these
individuals will be able to adapt to the demands or "stress" of
the workplace.'"

Hidalgo v. Colvin, 12 Civ. 9009 (LTS)(SN), 2014

WL 2884018 at *4 (S.D.N.Y. June 25, 2014) (Swain, D.J.), quoting
Lacava v. Astrue, 11 Civ. 7727 (WHP)(SN), 2012 WL 6621731 at *12
(S.D.N.Y. Nov. 27, 2012) (Netburn, M.J.) (Report & Recommendation), adopted at 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012)
(Pauley, D.J.).

4.

Treating Physician Rule

In considering the evidence in the record, the ALJ must
give deference to the opinions of a claimant's treating physicians.

A treating physician's opinion will be given controlling

weight if it is "well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in . . . [the] record."

42

20 C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2);31 see also Shaw v. Chater, 221
F.3d 126, 134 (2d Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313
n.6 (2d Cir. 1995); Schisler v. Sullivan, 3 F.3d 563, 567 (2d
Cir. 1993).
"[G]ood reasons" must be given for declining to afford
a treating physician's opinion controlling weight.

20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2); Schisler v. Sullivan, supra, 3
F.3d at 568; Burris v. Chater, 94 Civ. 8049 (SHS), 1996 WL 148345
at *4 n.3 (S.D.N.Y. Apr. 2, 1996) (Stein, D.J.).

The Second

Circuit has noted that it "'do[es] not hesitate to remand when
the Commissioner has not provided "good reasons" for the weight
given to a treating physician[']s opinion.'"

Morgan v. Colvin,

592 F. App'x 49, 50 (2d Cir. 2015) (summary order), quoting
Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); accord
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).

Before an ALJ

can give a treating physician's opinion less than controlling
weight, the ALJ must consider various factors to determine the
amount of weight the opinion should be given.
include:

These factors

(1) the length of the treatment relationship and the

31

The Social Security Administration recently adopted
regulations that change the standards applicable to the review of
medical opinion evidence for claims filed on or after March 27,
2017. See 20 C.F.R. §§ 404.1520c, 416.920c. Because plaintiff's
claim was filed before that date, those regulations do not apply
here.
43

frequency of examination, (2) the nature and extent of the
treatment relationship, (3) the medical support for the treating
physician's opinion, (4) the consistency of the opinion with the
record as a whole, (5) the physician's level of specialization in
the area and (6) other factors that tend to support or contradict
the opinion.

20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6);

Schisler v. Sullivan, supra, 3 F.3d at 567; Mitchell v. Astrue,
07 Civ. 285 (JSR), 2009 WL 3096717 at *16 (S.D.N.Y. Sept. 28,
2009) (Rakoff, D.J.); Matovic v. Chater, 94 Civ. 2296 (LMM), 1996
WL 11791 at *4 (S.D.N.Y. Jan. 12, 1996) (McKenna, D.J.).

Al-

though the foregoing factors guide an ALJ's assessment of a
treating physician's opinion, the ALJ need not expressly address
each factor.

Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir.

2013) (summary order) ("We require no such slavish recitation of
each and every factor where the ALJ's reasoning and adherence to
the regulation are clear.").
As long as the ALJ provides "good reasons" for the
weight accorded to the treating physician's opinion and the ALJ's
reasoning is supported by substantial evidence, remand is unwarranted.

See Halloran v. Barnhart, supra, 362 F.3d at 32-33; see

also Atwater v. Astrue, supra, 512 F. App'x at 70; Petrie v.
Astrue, 412 F. App'x 401, 406-07 (2d Cir. 2011) (summary order);
Kennedy v. Astrue, 343 F. App'x 719, 721 (2d Cir. 2009) (summary

44

order).

"The opinions of examining physicians are not control-

ling if they are contradicted by substantial evidence, be that
conflicting medical evidence or other evidence in the record."
Krull v. Colvin, 15-4016, 2016 WL 5417289 at *1 (2d Cir. Sept.
27, 2016) (summary order) (citation omitted); see also Monroe v.
Commr. of Social Sec., 16-1042-CV, 2017 WL 213363 at *1 (2d Cir.
Jan. 18, 2017).

The ALJ is responsible for determining whether a

claimant is "disabled" under the Act and need not credit a
treating physician's determination to this effect where it is
contradicted by the medical record.

See Wells v. Comm'r of Soc.

Sec., 338 F. App'x 64, 66 (2d Cir. 2009) (summary order).

The

ALJ may rely on a consultative opinion where it is supported by
substantial evidence in the record.

See Richardson v. Perales,

supra, 402 U.S. at 410; Camille v. Colvin, 652 F. App'x 25, 27-28
(2d Cir. 2016) (summary order); Diaz v. Shalala, 59 F.3d 307, 313
n.5 (2d Cir. 1995); Mongeur v. Heckler, supra, 722 F.2d at 1039.

5.

Credibility

In determining a claimant's RFC, the ALJ is required to
consider the claimant's reports of pain and other limitations, 20
C.F.R. § 416.929, but is not required to accept the claimant's
subjective complaints without question.

McLaughlin v. Sec'y of

Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).

45

"It is the function of the [Commissioner], not [the reviewing
courts], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant."

Carroll v.

Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983);
see also Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984);
Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588,
591-92 (2d Cir. 1984).

The ALJ has discretion to assess the

credibility of the claimant's testimony in light of the medical
findings and other evidence in the record.

Marcus v. Califano,

615 F.2d 23, 27 (2d Cir. 1979).
The regulations provide a two-step process for evaluating a claimant's subjective assertions of disability.
At the first step, the ALJ must decide whether the
claimant suffers from a medically determinable impairment that could reasonably be expected to produce the
symptoms alleged. 20 C.F.R. § 404.1529(b). That
requirement stems from the fact that subjective assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the claimant does
suffer from such an impairment, at the second step, the
ALJ must consider "the extent to which [the claimant's]
symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence" of
record. Id. The ALJ must consider "[s]tatements [the
claimant] or others make about [the claimant's] impairment(s), [the claimant's] restrictions, [the claimant's] daily activities, [the claimant's] efforts to
work, or any other relevant statements [the claimant]
make[s] to medical sources during the course of examination or treatment, or to [the agency] during interviews, on applications, in letters, and in testimony in
[its] administrative proceedings." 20 C.F.R. §
404.1512(b)(3); see also 20 C.F.R. § 404.1529(a);
S.S.R. 96-7p.
46

Genier v. Astrue, supra, 606 F.3d at 49 (alterations and emphasis
in original); see also 20 C.F.R. § 416.929(a); Snyder v. Colvin,
15-3502, 2016 WL 3570107 at *2 (2d Cir. June 30, 2016) (summary
order), citing SSR 16-3P, 2016 WL 1119029 (Mar. 16, 2016).32

The

ALJ must explain the decision to reject a claimant's testimony
"'with sufficient specificity to enable the [reviewing] Court to
decide whether there are legitimate reasons for the ALJ's disbelief' and whether [the ALJ's] decision is supported by substantial evidence."

Calzada v. Astrue, 753 F. Supp. 2d 250, 280

(S.D.N.Y. 2010) (Sullivan, D.J.) (alteration in original),
quoting Fox v. Astrue, 05 Civ. 1599 (NAM)(DRH), 2008 WL 828078 at
*12 (N.D.N.Y. Mar. 26, 2008); see also Lugo v. Apfel, 20 F. Supp.
2d 662, 664 (S.D.N.Y. 1998) (Rakoff, D.J.).

The ALJ's determina-

tion of credibility is entitled to deference.

See Snell v.

Apfel, 177 F.3d 128, 135-36 (2d Cir. 1999) ("After all, the ALJ
is in a better position to decide issues of credibility");
Gernavage v. Shalala, 882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995)
(Leisure, D.J.) ("Deference should be accorded the ALJ's determination because he heard Plaintiff's testimony and observed his
demeanor.").

32

SSR 16-3p supersedes SSR 96-7p, 1996 WL 374186 (July 2,
1996), and clarifies the policies set forth in the previous SSR.
See SSR 16-3P, supra, 2016 WL 1237954.
47

B.

The ALJ's
Decision

The ALJ applied the five-step analysis described above
and determined that plaintiff was not disabled (Tr. 13-20).
As an initial matter, the ALJ found that plaintiff met
the insured status requirements of the Act through December 31,
2015 (Tr. 13).
At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since the alleged onset
date of August 4, 2010 (Tr. 13).
At step two, the ALJ found that plaintiff suffered from
the following severe impairments:

axial back pain with degenera-

tive disease and lumbar sprain (Tr. 13).

The ALJ found that

plaintiff's alleged impairments due to panic attacks and weakness
in his right hand were not severe impairments and stated that
there are no diagnoses of either condition in the
medical record, including the claimant's retirement
paperwork as seen in Exhibit 3F. When reviewing the
medical evidence as a whole, there is no clinical or
diagnostic evidence substantiating that the claimant
suffers from panic attacks or a weakened grip of the
right hand. Absent corroborating diagnostic evidence,
an impairment of the right hand and panic attacks is
not medically determinable.
(Tr. 13).
At step three, the ALJ found that plaintiff's disabilities did not meet the criteria of the listed impairments and was
48

therefore not entitled to a presumption of disability (Tr. 1314).

In reaching her conclusion, the ALJ stated that she gave

"[s]pecific consideration" to "the applicable sections of 1.00
Musculoskeletal System of the listed impairments" (Tr. 14).
The ALJ then determined that plaintiff retained the
RFC to perform sedentary work except that he can
lift and carry five to ten pounds, sit, stand, and walk
for six hours in an eight hour workday, and occasionally stoop and reach. The claimant must be given the
opportunity to change positions at thirty to sixty
minute intervals and cannot perform highly skilled jobs
due to the side effects of medication.
(Tr. 27).

To reach her RFC determination, the ALJ examined the

opinions of the treating and consulting physicians and determined
the weight to be given to each opinion based on the objective
medical record, including the treatment notes of plaintiff's
treating physicians (Tr. 14-19).
The ALJ assessed the opinion evidence in the record and
gave more weight to the opinions of those doctors that the ALJ
found to be consistent with the objective medical evidence.
Specifically, the ALJ gave "considerable weight" to the opinion
of consulting examiner Dr. Davis because Dr. Davis examined
plaintiff on two occasions, ten months apart; based on Dr. Davis'
findings, the ALJ concluded plaintiff could do sedentary work
(Tr. 18).

The ALJ also found that Dr. Davis' opinions were

"supported by the overall medical evidence" (Tr. 18).
49

The ALJ gave "some weight" to consulting examiner Dr.
Corvalan's opinion that plaintiff had restrictions in his lower
back that are not disabling (Tr. 18, citing Ex. 8F).

The ALJ

gave "little weight" to Dr. Corvalan's opinion that plaintiff had
limitations in his neck because "there is no evidence in the
medical record of a neck impairment" (Tr. 18).
The ALJ gave "little weight" to the opinion of plaintiff's orthopedist, Dr. Jacobs, that plaintiff has a 75% disability because that is an issue reserved for the Commissioner (Tr.
18-19).
Finally, the ALJ gave "some weight" to plaintiff's
treating physician Dr. Basri's opinion stating:
Some weight is also given to Dr. Basri with greater
weight being assigned to the medical questionnaire's
opinion [sic] that the claimant can lift and carry up
to ten pounds, which is consistent with the findings of
the other doctors in the medical record. However, the
undersigned gives lesser weight to those portions which
suggest the claimant [is] incapable of being able to
perform even sedentary work, which does not coincide
with the benign objective findings.
(Tr. 18).
In reaching her RFC determination, the ALJ also considered plaintiff's testimony and found that while plaintiff's
medically determinable impairments could reasonably have caused
his alleged symptoms, a review of the entire case record showed
that plaintiff's statements regarding their intensity, persis-

50

tence and limiting effects were not entirely credible (Tr. 17).
The ALJ pointed out that plaintiff's description of his daily
activities demonstrated that he is not as limited as he claimed
because plaintiff told Dr. Corvalan that he shops, does laundry,
socializes, reads and pursues photography as a hobby (Tr. 17).
The ALJ also found that plaintiff's credibility was undermined by
the fact that he has only pursued the "conservative treatment" of
physical therapy and medication, "[d]iagnostic studies [were]
negative for a herniation and radiculopathy," plaintiff retained
full muscle strength in his legs, there was no evidence of muscle
atrophy in his legs33 and plaintiff had never been hospitalized
for reasons relating to his lower back (Tr. 17-18).
At step four, the ALJ concluded that, because plaintiff
is limited to sedentary work, plaintiff is unable to perform his
past work as a detective and background investigator, which
require light exertional physical exertion, or his past work as a
patrol officer, which requires medium physical exertion (Tr. 19).

33

The ALJ did not specify that he was referring to
plaintiff's leg muscle strength or atrophy, (Tr. 18 ("His
strength remains full and there is no evidence of atrophy")), but
the ALJ's earlier summary of the medical evidence suggests that
the ALJ was referring to plaintiff's leg strength. Earlier in
the opinion, the ALJ noted Dr. Corvalan's October 2012
examination of plaintiff's legs in which Dr. Corvalan concluded
that plaintiff had full strength in the "proximal and distal
muscles" and "[n]o muscle atrophy" (Tr. 17, 438-39).
51

At step five, relying on the testimony of the vocational expert, the ALJ found that jobs existed in significant
numbers in the national economy that plaintiff could perform,
given his RFC, age and education (Tr. 20).

The ALJ noted that

the vocational expert testified that given plaintiff's age,
education, work experience and RFC, plaintiff could perform
unskilled sedentary work as a charge account clerk, DOT 205.367014, which has 196,000 positions nationally and as an addressing
clerk, DOT 209.587-010, which has 96,000 positions nationally
(Tr. 20).

Concluding that the expert's testimony was consistent

with information in the DOT, the ALJ determined plaintiff could
perform those occupations and, accordingly, was not disabled (Tr.
20).

C.

Analysis of the
ALJ's Decision

Plaintiff argues that remand is required because the
ALJ erred by (1) failing to develop the record as to all of
plaintiff's impairments, (2) failing to give controlling weight
to the opinions and diagnoses of plaintiff's treating physicians,
(3) improperly assessing plaintiff's credibility and (4) improperly relying on the vocational expert's testimony (Pl. Mem. of
Law in Supp. of Motion for Judgment on the Pleadings, dated May
9, 2016 (D.I. 18) ("Pl. Mem.")).
52

The Commissioner argues that

the ALJ applied the correct legal standards and that her decision
is supported by substantial evidence (Def. Mem. of Law in Opp. to
Pl. Motion for Judgment on the Pleadings and in Supp. of Commissioner's Cross-Motion for Judgment on the Pleadings, dated July
8, 2016 (D.I. 20) ("Def. Mem.")).

1.

Duty to Develop the Record

Remand is warranted because despite evidence in the
record indicating that plaintiff had anxiety and panic attacks,
the ALJ rejected these conditions as not being supported by
medical evidence without first fully developing the record
concerning them.

At step two of her analysis, the ALJ stated

that "there is no clinical or diagnostic evidence substantiating
that the claimant suffers from panic attacks" and that absent
such "corroborating diagnostic evidence," an impairment of "panic
attacks is not medically determinable" (Tr. 13).

The ALJ's

analysis was erroneous because there was evidence in the record
that plaintiff's primary treating doctor, Dr. Basri, treated
plaintiff for anxiety and panic attacks.

Further, some of Dr.

Basri's treatment notes appear to be missing and the notes that
were collected appear to be superficial and are, in large part,
illegible.

Given that Dr. Basri was plaintiff's treating physi-

cian during the relevant period, the foregoing deficiencies in

53

the records obtained from Dr. Basri gave rise to an "obvious gap"
in the medical record that may have affected the ALJ's disability
determination.
Plaintiff testified at the December 17, 2013 hearing
that when he has an anxiety attack "[o]ftentimes, it's so bad, I
feel like I need to go to the emergency room and I've had several
trips" (Tr. 69).

He further testified that his anxiety was

related to his back pain and the medication he took for the pain:
[ALJ:] You have side effects from your medicine?
[Plaintiff:] Sometimes, yes. When I initially started
taking morphine, I, it would give me sweats, dry mouth.
I feel very anxiety about it [sic] because the connotation of morphine itself[,] being a [police officer],
you know, it's kind of a negative things [sic].
So it would make me anxious about having to take these
things. I'm worried about the addictive properties of
these. I didn't realize at the time, it's actually
caused a bowel obstruction which caused me to seek
emergency room treatment approximately two weeks ago
where they wanted to admit me for two days and consult
with a surgeon due to the bowel blockage.
(Tr. 63).34
There is documentary evidence in the record confirming
that plaintiff went to the emergency room in December 2013 and on

34

Plaintiff also testified that he did not see a therapist
or a psychiatrist about his anxiety and he stated that he did not
believe that he was depressed (Tr. 69-70). Plaintiff elaborated
that "I believe and I really shouldn't be self-diagnosing myself,
it's lack of sleep, worried about taking the medicine, how it's
going to affect me long term, what it's doing to my body, how
it's going to affect me for the rest of my life" (Tr. 70).
54

at least one other date due to his anxiety.

The record contains

a December 2, 2013 treatment note from Dr. Basri stating that
plaintiff went to the emergency room at Orange Regional Medical
Center (Tr. 453), but does not contain a corresponding record
from the hospital from that date.

Dr. Basri's note is largely

illegible, but the words "surgeon" and "obstruction" can be made
out (Tr. 453).

The medical record also includes a discharge note

from Orange Regional Medical Center dated August 3, 2010 indicating an emergency room visit (Tr. 342-43).

The hospital record

does not include treatment notes or a narrative summary explaining the reason for plaintiff's visit.

However, the discharge

note included a prescription for Xanax (Tr. 342-343).

Xanax is

prescribed "in the treatment of anxiety disorders and panic
disorders and for short-term relief of anxiety symptoms."
Dorland's at 54.

There is no indication that the ALJ either

sought the emergency room records or asked counsel to provide
them.
Moreover, the treatment notes from Dr. Basri for the
period from January 2011 through November 2013 show that plaintiff repeatedly complained of anxiety and panic attacks and that
Dr. Basri prescribed anti-anxiety medication for plaintiff (Tr.
453-58).

Although the treatment notes are brief and, at times,

illegible, Xanax is noted at least twelve times in Dr. Basri's

55

treatment notes (Tr. 453-58).

There are also at least three

legible references in Dr. Basri's notes to Cymbalta (Tr. 453-58),
which is "used for the treatment of major depressive disorder . .
. ."

Dorland's at 457, 572.

Although a prescription for a

psychotropic medication is not conclusive evidence of a medical
impairment, contrary to the ALJ's conclusion, it does constitute
clinical evidence corroborating plaintiff's testimony that he was
suffering from potentially debilitating panic attacks.

Dr. Basri

also noted that he had seen plaintiff regularly since June 2010
but the record does not contain any of his treatment notes
preceding February 2011 (Tr. 260).

The ALJ did not ascertain

whether treatment notes from Dr. Basri were missing, did not seek
clarification of the illegible and sketchy notes that were
provided and did not seek further information from Dr. Basri such
as the frequency of plaintiff's anxiety attacks, how long they
lasted and their effect on plaintiff's ability to maintain
concentration at work.

The ALJ's failure to consider the evi-

dence in the record and to develop and clarify the record regarding plaintiff's anxiety warrants remand.

See Pratts v. Chater,

supra, 94 F.3d at 38 (remanding for further development of the
record where portions of plaintiff's medical history were missing, some of the medical records were "frequently incomplete or
illegible and provide[d] no coherent overview" of the plaintiff's

56

treatment and because the ALJ's conclusion that there was "no
evidence" of certain conditions was contradicted by the record
that was available); Moreira v. Colvin, 13 Civ. 4850 (JGK), 2014
WL 4634296 at *6-*7 (S.D.N.Y. Sept. 15, 2014) (Koeltl, D.J.) (ALJ
erred by failing to "ascertain the treating physicians' opinions
and analyses with respect to the plaintiff's precise medical
conditions" where the "records from the treating sources also
appear[ed] to be inconsistent with the consultative exam on which
the ALJ relied").35
The Commissioner argues that the record clearly shows
that Dr. Basri did not believe that plaintiff had a medical
impairment as a result of his anxiety attacks.

The Commissioner

points to Dr. Basri's September 2012 medical source statement in
which Dr. Basri opined that plaintiff did not have a significant
"psychiatric disorder" and indicated that, aside from his back

35

The ALJ could also have sought the opinion of a consulting
mental health professional. See Tankisi v. Commr. of Social
Sec., 521 F. App'x 29, 32 (2d Cir. 2013) (summary order) ("A
consultative examination is used to 'try to resolve an
inconsistency in the evidence, or when the evidence as a whole is
insufficient to allow [the ALJ] to make a determination or
decision' on the claim.") (citation omitted); Hooper v. Colvin,
199 F. Supp. 3d 796, 811, 816 (S.D.N.Y. 2016) (Cott, M.J.)
(remanding for further development of the record through a
"comprehensive assessment" of plaintiff's limitations from a
consulting or treating physician because "[a]lthough the record
[was] extensive, the absence of any up-to-date medical opinion
assessing [the claimant's] mental functional limitations [was] an
'obvious gap.'")
57

condition, plaintiff had no other "conditions significant to
recovery" (Def. Mem. at 17, citing Tr. 426, 432).
The Commissioner's argument is unavailing for two
reasons.

First, contrary to the ALJ's findings, Dr. Basri did

not find that plaintiff did not have a psychiatric impairment
relating to his anxiety; rather, he found that plaintiff did not
have a "significant psychiatric disorder" (Tr. 426).

The Commis-

sioner's argument, therefore, conflates the doctor's opinion
concerning the extent of a condition with the existence of the
condition.

Second, Dr. Basri's treatment notes contradict his

September 2012 medical source statement.

In his September 2012

statement, in addition to the opinion noted above, Dr. Basri
indicated that he prescribed plaintiff narcotic pain medication
and made no reference to anti-anxiety medication (Tr. 426, 429).
However, on the same day that Dr. Basri filled out the form, Dr.
Basri's treatment notes indicate that he gave plaintiff a prescription for Xanax (Tr. 456).

Further, one month earlier, on

August 14, 2012, Dr. Basri noted that plaintiff had had two
anxiety attacks related to back pain and indicated that he gave
plaintiff a prescription for Xanax (Tr. 456).

It is not clear

why the doctor omitted plaintiff's other medications and other
conditions from his September 2012 statement, but it demonstrates
a gap in the record that warranted clarification.

58

Given this

conflicting evidence, it was not appropriate for the ALJ to guess
whether Dr. Basri had diagnosed plaintiff with an anxiety disorder or not, he should have contacted the physician to clarify the
record.
The ALJ's refusal to consider plaintiff's anxiety was
not harmless error.

Even if the evidence ultimately shows that

plaintiff's anxiety was not a severe impairment, the ALJ was,
nevertheless, required to take it into account in her analysis of
plaintiff's RFC.

"A RFC determination must account for limita-

tions imposed by both severe and nonsevere impairments."
Parker-Grose v. Astrue, 462 F. App'x 16, 18 (2d Cir. 2012)
(summary order), citing 20 C.F.R. § 404.1545(a)(2) ("We will
consider all of your medically determinable impairments of which
we are aware, including your medically determinable impairments
that are not 'severe [ ]' . . . when we assess your [RFC] . . .
.") and 20 C.F.R. § 416.945(a)(2) (same); see Schmidt v. Colvin,
15-CV-2692 (MKB), 2016 WL 4435218 at *13 (E.D.N.Y. Aug. 19, 2016)
("Because the ALJ failed to account for the limitations imposed
by Plaintiff's non-severe mental impairments, the Court remands
for consideration of those limitations in determining Plaintiff's
RFC."); Jackson v. Colvin, No. 1:14-CV-00055 (MAT), 2016 WL
1578748 at *4 (W.D.N.Y. Apr. 20, 2016) ("[T]he ALJ failed to
properly consider [the] plaintiff's mental impairments, whether

59

severe or non-severe, throughout the entire five-step sequential
evaluation.

As a result, the ALJ's RFC finding was not supported

by substantial evidence."); Rookey v. Comm'r of Soc. Sec., No.
7:14–cv–914 (GLS), 2015 WL 5709216 at *3 (N.D.N.Y. Sept. 29,
2015) (reversing and remanding where the ALJ "fail[ed] to consider [the plaintiff's] non-severe mental impairments in determining his RFC"); Salisbury v. Colvin, 13 Civ. 2805 (VEC)(MHD),
2015 WL 5458816 at *44 (S.D.N.Y. Sept. 1, 2015) (Dolinger, M.J.)
(Report & Recommendation) ("However, even if non-severe, the ALJ
must account for limitations arising from that mental impairment
when determining plaintiff's RFC."), adopted at 2015 WL 5566275
(S.D.N.Y. Sept. 21, 2015) (Caproni, D.J.); Johnson v. Colvin, No.
12-CV-1273 (GLS), 2013 WL 6145804 at *5 (N.D.N.Y. Nov. 21, 2013)
(remanding because "failure to consider [the plaintiff's] mental
impairments and abilities in assessing her RFC is legal error");
Dixon v. Astrue, Civil No. 10–5703 (RBK), 2011 WL 4478493 at *12
(D.N.J. Sept. 26, 2011) ("[T]he ALJ properly evaluated Plaintiff's depression to determine that it was not severe" but erred
in omitting it from his RFC determination without explanation).
On remand, if the evidence establishes that plaintiff suffers
from anxiety or panic attacks, the ALJ should consider these
conditions in her RFC analysis regardless of their severity.

60

Accordingly, remand is required for further development
of the record with respect to plaintiff's allegations that he had
anxiety and panic attacks.36

2.

Treating Physician Rule

Even if the ALJ had not erred in failing to seek
further development of the record regarding plaintiff's anxiety
attacks, remand is also required because the ALJ failed adequately to justify giving less than controlling weight to Dr.
Basri's opinions regarding plaintiff's physical limitations.

The

ALJ rejected Dr. Basri's conclusions about the amount of time
plaintiff could sit, stand and walk during a workday because he
believed they did "not coincide with the benign objective findings" (Tr. 18).

In another portion of the opinion, the ALJ

stated that "diagnostic studies [were] negative for a herniation
and radiculopathy" and that plaintiff's "strength remains full

36

Plaintiff also argues that the ALJ erred by finding that
plaintiff's alleged weakness in his right hand was not a
medically determinable impairment. However, plaintiff has not
identified any evidence in the record demonstrating that his
right hand weakness was a medically determinable impairment.
Plaintiff cites to his own testimony and a physical therapist
statement that plaintiff's grip in his right hand was 140 pounds
and his left hand grip was 100 pounds (Pl. Mem. at 7-8, 17 citing
Tr. 348). There is no medical evidence in the record that
indicates whether this is normal for plaintiff's age, weight and
height. Nevertheless, on remand, plaintiff may wish to submit
further evidence on this issue to the ALJ.
61

and there is no evidence of atrophy" (Tr. 18).

However, these

are not the only objective findings in the record, and contrary
to the ALJ's conclusion, herniation, radiculopathy and atrophy
are not the only indicators of back pain.

The ALJ ignored other

medically acceptable, objective evidence such as (1) an MRI from
May 2010 that showed that plaintiff had a mild multi-level
degenerative disc disease, a concentric disc bulge with a posterior annular tear, and disc bulges that contributed to mild
central canal stenosis (Tr. 313), (2) an x-ray from May 2010 that
showed "mild disc space narrowing" and "partial lumbarization" of
the first sacral segment (Tr. 336) and (3) an x-ray from October
2012 that showed that plaintiff had straightening of the spine
(Tr. 441).

Further, Dr. Jacobs, a neurosurgeon, and Dr.

Corvalan, an orthopedist, found that plaintiff had positive
straight leg-raising tests in August 2010 and October 2012,
respectively (Tr. 397, 438-39).

The treating and consulting

physicians found that upon examination, plaintiff had limited
and/or painful range of motion in the lumbar spine at various
points throughout the relevant period (Tr. 374 (May 2010, Orange
Regional Medical Center emergency room doctor), 397 (August 2010,
Dr. Jacobs), 265-66 (August 2010, Dr. Dunkelman), 434 (September
2012, Dr. Basri), 438-39 (October 2012, Dr. Corvalan).

Contrary

to the ALJ's conclusions, this evidence is not "benign" and

62

supports plaintiff's testimony that he had lower back pain that
restricted his daily activities.
The ALJ's rejection of Dr. Basri's opinion was not
harmless because the doctor's assessment of plaintiff's limited
ability to stand, walk and sit would have changed plaintiff's
RFC.

The ALJ concluded that plaintiff could "sit, stand, and

walk for six hours in an eight hour workday" (Tr. 14) even though
Dr. Basri concluded that plaintiff could stand and walk for less
than two hours and sit for less than six hours in a workday (Tr.
431).

The ALJ gave "considerable weight" to Dr. Davis and

concluded that his "findings are consistent with a sedentary
[RFC]" (Tr. 18).

However, Dr. Davis did not quantify plaintiff's

ability to walk or stand, stating instead that plaintiff should
be able to change positions "as necessary such as . . . sitting
and standing" (Tr. 400).
The ALJ also relied on Dr. Corvalan's opinion that
plaintiff had "moderate limitations" on his ability to sit and
stand for long periods of time and on his ability to walk for
long distances and concluded that plaintiff could engage in
sedentary work (Tr. 18).

Dr. Corvalan's use of the word "moder-

ate" is vague and provides no support for the ALJ's conclusion
that plaintiff engage in these activities for six hours out of an
eight hour day.

See Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.

63

2000) (doctor's opinion that used the terms "moderate" and "mild"
was "so vague as to render it useless" in evaluating whether
plaintiff could perform sedentary work), superseded on other
grounds, 20 C.F.R. § 404.1560; accord Falk v. Colvin, 15 Civ.
3863 (ER)(KNF), 2016 WL 4411423 at *6 (S.D.N.Y. Aug. 18, 2016)
(Ramos, D.J.) (consulting doctor's statement that the plaintiff
"had a 'moderate limitation for sitting and standing for long
periods of time'" was "too vague an opinion to be useful" with
respect to plaintiff's ability to sit for six hours and stand and
walk for two hours).37
By rejecting Dr. Basri's opinion, the ALJ thus "arbitrarily substitute[d] [her] own judgment for a competent medical
opinion."

Rosa v. Callahan, supra, 168 F.3d at 79.

Thus, the

ALJ failed to provide good reasons for providing less weight to
Dr. Basri's opinions in the September 2012 medical source statement.

37

The ALJ also relied on Dr. Corvalan's opinion that
plaintiff had "moderate" limitations in bending to find that
plaintiff could stoop "occasionally" (Tr. 14, 18, 439). The only
other doctor that gave an opinion concerning plaintiff's ability
to bend or stoop was Dr. Davis, who stated that plaintiff should
avoid "prolonged" bending or stooping (Tr. 287). Moreover, five
of the doctors that examined plaintiff found that plaintiff had a
limited range of motion in flexion of his lumbar spine (Tr.
265-66, 374, 397, 434, 438-39). On remand, the ALJ should,
therefore, further develop the record concerning this issue or
provide revised support for her conclusions regarding plaintiff's
ability to stoop and bend.
64

To the extent plaintiff claims that Dr. Basri's
opinion should be adopted as controlling, plaintiff's argument is
premature.

As discussed herein, the record in this case needs to

be developed further with respect to plaintiff's treatment by Dr.
Basri, and, until the record is further developed, the weight to
be given to Dr. Basri's opinions cannot be determined.

See

Downes v. Colvin, 14 Civ. 7147 (JLC), 2015 WL 4481088 at *12
(S.D.N.Y. July 22, 2015) (Cott, M.J.) ("Even if the ALJ's decision might ultimately be supported by substantial evidence, the
Court cannot reach this conclusion where the decision was based
on an incomplete record.").

Indeed, further development of the

record may also clarify Dr. Basri's opinions on plaintiff's
physical limitations.
The ALJ failed to provide sufficient "good reasons" for
the less than controlling weight she gave to Dr. Basri's opinions
and erred in not seeking clarification from Dr. Basri to reconcile the inconsistencies and fill the gaps in the record.

On

remand, the ALJ should further develop the record from plaintiff's treating physician and reassess plaintiff's treating
physicians' opinions according to the factors set forth in 20
C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).

65

3.

Credibility Assessment

As discussed above, the ALJ failed to develop the
record adequately and her reliance on an incomplete record
affected her view of the relationship between plaintiff's testimony and the medical record.

Further, as discussed above at

pages 62-63, the ALJ ignored the objective evidence that was
consistent with plaintiff's complaints of pain.

Moreover, if

anxiety and insomnia were indeed side effects of plaintiff's pain
medication (see Tr. 63), the ALJ should have considered those
side effects in her analysis of plaintiff's credibility.

See

Meadors v. Astrue, 370 F. App'x 179, 184 n.1 (2d Cir. 2010)
(summary order) (side effects from medication should be considered by the ALJ when making the credibility determination); 20
C.F.R. §§ 404.1529(c)(3) (iv), 416.929(c)(3)(iv) ("type, dosage,
effectiveness, and side effects" of any medication taken by the
claimant to alleviate his or her pain or other symptoms are
factors relevant to a disability determination); SSR 16-3p,
supra, 2016 WL 1119029 at *6 (noting that the SSA will consider
statements from medical sources including "[a] longitudinal
record of any treatment and its success or failure, including any
side effects of medication").

Thus, it is impossible to deter-

mine whether the ALJ's credibility determination is supported by
substantial evidence based on the current record.
66

See Rosa v.

Callahan, supra, 168 F.3d at 82 n.7 ("Because we have concluded
that the ALJ was incorrect in [his] assessment of the medical
evidence, we cannot accept [his] conclusion regarding [plaintiff's] credibility."); Montilla v. Comm'r of Soc. Sec., 13 Civ.
7012 (LTS)(MHD), 2015 WL 4460958 at *22 (S.D.N.Y. July 21, 2015)
(Swain, D.J.) ("While the ALJ has supported his credibility
findings with sufficient detail and attention to the factors
specified in the regulations and caselaw, it is nonetheless
unacceptable because it is based on a record that has not been
properly and fully developed."); Wilson v. Colvin, 107 F. Supp.
3d 387, 407 n.34 (S.D.N.Y. 2015) (Peck, M.J.) ("Because of [the
ALJ's] legal error in failing to develop the record . . .

the

Commissioner necessarily will have to reassess both [plaintiff's]
RFC and credibility"); Jackson v. Colvin, 13 Civ. 5655 (AJN)(SN),
2014 WL 4695080 at *21 (S.D.N.Y. Sept. 3, 2014) (Nathan, D.J.)
(on remand "the Commissioner will be required to reassess both
Jackson's credibility and her RFC in light of the new evidence").
On remand, therefore, the ALJ should re-evaluate plaintiff's
testimony after taking steps to develop the record as directed.

4.

Vocational Expert Testimony
and the ALJ's Decision at Step Five

Further development of the record may alter the ALJ's
assessment of plaintiff's RFC.

Therefore, I cannot determine at
67

this time whether the ALJ elicited relevant testimony from the
vocational expert.

See Meadors v. Astrue, supra, 370 F. App'x at

185-86; Patrick v. Colvin, No. 13-CV-2174
at *17

IV.

(SJF), 2015 WL 1469270

(E.D.N.Y. Mar. 30, 2015).

Conclusion

For all the foregoing reasons, plaintiff's motion for
judgment on the pleadings

(D.I. 16) is granted and the matter is

remanded to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g)

for further proceedings consistent with this

opinion.

The Commissioner's cross-motion for judgment on the

pleadings

(D.I. 19)

Dated:

is denied.

New York, New York
March 27, 2017
SO ORDERED

HZR~/~
United States Magistrate Judge

Copies transmitted to:
Carolyn A. Kubitschek, Esq.
Lansner & Kubitschek
Suite 203
325 Broadway
New York, New York 10007
Irwin M. Portnoy, Esq.
68

Irwin M. Portnoy and Associates, P.C.
542 Union Avenue
New Windsor, New York 12553
Amanda Parsels, Esq.
United States Attorney's Office
Southern District of New York
86 Chambers Street
New York, New York 10007

69