Eli v. Colvin

Filing 23

MEMORANDUM AND ORDER. For the reasons set forth above, the Commissioner's motion for judgment on the pleadings (Docket No. 20) is denied, the plaintiff's motion (Docket No. 16) is granted, and this case is remanded to the Commissioner pursu ant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The Clerk of the Court is respectfully directed to enter judgment accordingly and close this case. SO ORDERED. Granting 16 Motion for Judgment on the Pleadings; Denying 20 Motion for Judgment on the Pleadings. (Signed by Magistrate Judge James C. Francis on 8/21/2017) Copies transmitted this date to: Howard D. Olinsky, Esq., Robert R. Schriver, Esq. (rjm)

she

cannot

work

because

of

vesicoureteral

reflux,

diverticulitis,

variety

osteoporosis,

of

pyelonephrosis,
a

ailments

including

Crohn’s

disease,

pilonidal

cyst,

rheumatoid

arthritis, radiculopathy, severe migraine headaches, carpal tunnel
syndrome, and endometriosis.

(R. at 158).2

She notes that she

began experiencing severe abdominal pain when she was thirteen
years old.

(R. at 688).

She has suffered from constipation,

diarrhea, and rectal bleeding for most of her life.

(R. at 688).

She was diagnosed with irritable bowel syndrome when she was
thirty-one, and Crohn’s disease when she was thirty-three.
688).

(R. at

The first medical records included in the record for this

case are from 2005, when Ms. Eli went to St. Francis Hospital
complaining of severe abdominal pain and vomiting. (R. at 295).

A

CT scan was performed of her abdomen and pelvis, and the doctors
identified right hydronephrosis.3

(R. at 301).

Ms. Eli returned

to St. Francis Hospital many times over the next several years for
treatment

(R. at 259, 268-73, 284, 299-304), but doctors at St.

Francis were unable to determine the exact cause of her ailments.

2

“R.” refers to the Administrative Record filed with the
Acting Commissioner’s Answer.
3

Hydronephrosis is “[d]ilation of the pelvis and calices of
one or both kidneys. This may result from obstruction to the flow
of urine, vesicoureteral reflux, or it may be a primary congenital
deformity without an apparent cause.” Stedman’s Medical Dictionary
841 (27th ed. 2000) (“Stedman’s”).
2

(R. at 277, 299-313).

In 2008, Mrs. Eli had a total abdominal

hysterectomy due to a postpartum hemorrhage.

(R. at 396).

That

same year she underwent ureteral reconstruction and reimplantation
surgery.

(R. at 396).

On January 19, 2012, the plaintiff was treated at Vassar
Brothers Medical Center for back pain.

(R. at 318-24).

After

bending, she felt a series of three pops in her lower back,
followed by pain.

(R. at 318).

The doctors noted that she had a

history of scoliosis, but no other prior back issues. (R. at 327).
She was able to walk, albeit with great pain.

(R. at 319).

An x-

ray revealed a “mild lumbar curvature convex to the left,” and a
“[m]ild loss of disc height at L5-S1 posteriorly . . . likely
related to mild degenerative disc disease.”

(R. at 327-28).

She

was prescribed methocarbamol for muscle spasms, Percocet for pain,
Prednisone, and Zofran, and was told not to work, lift objects,
bend, or twist.

(R. at 329).

Ms. Eli returned to the St. Francis Hospital Emergency Room on
March 3, 2012, complaining of constant, sharp right flank pain.
(R. at 252).

The next day she underwent a CT scan, which revealed

“no acute findings in the abdomen or pelvis.”

(R. at 256).

Two

months later, on May 4, 2012, she was hospitalized for four days
due to extreme right flank pain.

(R. at 236).

During that stay,

the plaintiff was treated for right kidney infection, urinary tract
3

infection, and right hydronephrosis.

(R. at 237).

She said that

she was able to walk and perform her activities of daily living
independently.

(R. at 238).

On May 20, 2012, she was treated with

valium, ibuprofen, and Percocet for numbness and pain in her right
hand and fingers.

(R. at 331-33).

She returned to the emergency

room on May 30, 2012, complaining of pain and weakness in and
between her legs.
Percocet.

(R. at 244).

(R. at 245).

She was again treated with

She again went to the emergency room on

June 8, 2012, complaining of pain in her right flank and right arm.
(R. at 248).

She was given hydromorphone and discharged.

(R. at

249).
The plaintiff was next treated for chronic pain on August 3,
2012, again complaining of significant right abdominal pain.
at 402).
urinary

(R.

Dr. Cornelius Verhoest suspected that she had another
tract

infection

and

prescribed

Premarin vaginal cream, and Ciprofloxacin.

Percocet,

Prometrium,

(R. at 402).

Ms. Eli

went to the hospital on August 7, 2012, again for right flank pain.
(R. at 338). She underwent another CT scan, which was unremarkable
and showed no signs of any particular acute disease.

(R. at 349-

51). The plaintiff went back to the emergency room in a wheelchair
on September 17, 2012, after hearing pops in her back while bending
over.

(R. at 356).

X-rays were mostly unremarkable, finding no

evidence of “acute fracture or dislocation.” (R. at 367). Ms. Eli
4

was again prescribed Percocet and Flexeril.
Around

the

same

time,

the

(R. at 368).

plaintiff

was

referred

to

a

urologist, Dr. Roger Riechers. (R. at 403-04). Dr. Riechers found
that her kidneys were normal in size and shape, and that her
chronic pain was likely due to reflux.

(R. at 406, 408-09).

performed tests that confirmed this hypothesis.

(R. at 405).

He
Dr.

Riechers reported that throughout early October 2012, Mrs. Eli was
“significantly symptomatic.”

(R. at 409).

During this period, he

discussed various treatment options with Ms. Eli, and renewed her
Percocet prescription.

(R. at 409).

On October 17, 2012, Dr.

Riechers performed a cytoscopy to observe the plaintiff’s ureter,
and injected gel to prevent the back-flow of urine.

(R. at 413).

After this procedure Dr. Riechers concluded that Ms. Eli had
“massive vesicoureteral reflux.”4

(R. at 414). Despite these

efforts, Ms. Eli returned on October 23, 2012 with worsening
symptoms.

(R.

at

416).

Dr.

Riechers

found

hydronephrosis in the plaintiff’s right kidney

evidence

of

(R. at 416-17),

and placed a stent to attempt to solve this problem (R. at 421).
On November 12, 2012, Dr. Riechers noted that the stent would
need to be removed in order to determine whether Ms. Eli had
actually improved or not.

(R. at 422).

4

This procedure was

Vesicoureteral Reflux is “backward flow of urine from
bladder into ureter.” Stedman’s 1542.
5

performed on November 21, 2012. (R. at 425). At this appointment,
Dr.

Reiechers

found

that

Ms.

Eli

had

another

infection and was “miserable” with the pain.

urinary

tract

(R. at 424).

She

returned two days after the stent removal with continued abdominal
pain.

(R. at 429).

She was taking her prescribed Percocet, but it

was not providing much relief.

(R. at 429).

On November 30, 2012,

she returned to Dr. Riechers, still in pain, albeit less than
before. (R. at 431). Dr. Riechers hypothesized that the plaintiff
had pain from chronic pyelonephritis5, and planned to run tests to
determine
treatment.
December

if

she

was

still

(R. at 431).
10,

2012,

which

vesicoureteral reflux.

experiencing

reflux

despite

the

He performed another operation on
confirmed

there

was

no

current

(R. at 432).

A month later, on January 7, 2013, Ms. Eli was treated again
for flank pain.

(R. at 435).

She described dark spots on her back

and “leopard spots” on her right side, and the examining doctor
also noted “a couple of small café au lait appearing macules on her
back.”

(R. at 435).

On January 22, 2013, she was examined by Dr.

Abraham Fruchter, who noted that Ms. Eli’s pain had grown worse
over the preceding week.

(R. at 380-81).

5

She also had severe back

Pyelonephritis is a kidney infection “that generally begins
in your urethra or bladder and travels to one or both of your
http://
kidneys.”
Kidney
Infection,
available
at
www.mayoclinic. org/diseases-conditions/kidney-infection/
home/ovc-20342583 (last visited Aug. 21, 2017).
6

pain.

(R. at 387).

Dr. Fruchter found that her abdomen was tender

from her right side down to her groin, but the rest of the physical
examination was unremarkable.

(R. at 380).

Dr. Fruchter also

ordered a sonogram of Ms. Eli’s kidneys, which revealed

three

nonobstructive calcifications, but was “otherwise unremarkable.”
(R. at 387).
On January 29, 2013, Ms. Eli went to the Vassar Brothers
Medical Center emergency department complaining of chest pain. (R.
at 389). She was given aspirin, morphine, nitroglycerin, and
Percocet, and told to follow up with Dr. Fruchter.
393).

Ms. Eli did so on February 6, 2013.

(R. at 390,

(R. at 377).

The

doctors also ordered a “stress test” to try to determine the source
of her pain.

(R. at 377).

The test was aborted before it was

fully completed as Ms. Eli complained of increasing chest tightness
and pain, radiating to the left side of her neck, as the exercise
intensified.

(R. at 436).

The physician administering this test,

Dr. Ronald Wallach, believed that these symptoms were “consistent
with angina.”6

(R. at 437).

Ms. Eli then saw Dr. Warren Bromberg on February 18, 2013, for

6

Angina is “a severe, often constricting pain, usually
referring to a. pectoris.”
Stedman’s
80.
A. pectoris is a
“severe constricting pain in the chest, often radiating from the
predcordium to a shoulder (usually left) and down the arm, due to
ischemia of the heart muscle usually caused by coronary disease.”
Id.
7

her right flank pain.

(R. at 438).

Dr. Bromberg noted that she

was visibly uncomfortable, and prescribed Percocet and suggested a
renal scan in order to help diagnose Ms. Eli’s ailment.
438).

(R. at

On February 27, 2013, Dr. Bromberg performed a scan which

found no evidence of ureteral obstruction.

(R. at 442-43).

Meanwhile, on February 22, 2013, Dr. Surinder Jindal ordered
an x-ray on Mrs. Eli’s hand, which was unremarkable.

(R. at 590).

On March 1, 2013, Dr. Jindal performed an upper extremity NCV-EMG,
which revealed several deficiencies in Ms. Eli’s nerve responses in
her wrists.

(R. at 476).

Dr. Jindal opined that these findings

evidenced “1) [r]ight C6-C7 radiculopathy,7 2) [b]ilateral median
nerve

entrapment

at

wrist,

3)

[m]ild

left

radial

sensory

neuropathy,8 4) [and that] [d]istal latency conduction velocity is
normal.”

(R. at 476).

In light of these findings Dr. Jindal

prescribed Norco for pain, a wrist brace, and an evaluation by a
hand surgeon.

(R. at 591).

During this examination, Dr. Jindal

noted that Ms. Eli was unable sit or stand for long periods of
time, sleep through the night, and hold some objects due to the
pain.

(R. at 591).

On March 16, 2013, Ms. Eli saw Dr. Swaminathan

7

Radiculopathy is a “[d]isorder of the spinal nerve roots.”
Stedman’s 1503.
8

Neuropathy is “[i]n contemporary usage, a disease involving
the cranial nerves or the peripheral or autonomic nervous system.”
Stedman’s 1211.
8

Rajan, a hand surgeon.

(R. at 470).

Dr. Rajan examined Ms. Eli

several times over the next month and found that she had carpal
tunnel syndrome.
2.

Ms.

(R. at 470-73).

Medical History
Benefits

Eli

continued

to

Subsequent

receive

to

treatment

Application

for

her

for

various

illnesses following her application for SSI on March 23, 2013. She
was treated by Dr. Jindal on March 29, 2013.

(R. at 460).

Dr.

Jindal again noted “tenderness and spasm in paraspinal L4, L5, and
S1 region” and concurred with the diagnosis of carpal tunnel
syndrome.

(R. at 460).

He again noted that “[p]rolonged sitting

and standing aggravates the symptoms.”

(R. at 460).

On April 4,

2013, Dr. Swaminathau Rajan performed surgery to attempt to relieve
Ms. Eli’s carpal tunnel syndrome.

(R. at 474-75).

After this

surgery, she continued her treatment regimen with Dr. Jindal.

On

April 26, 2013, Dr. Jindal noted tenderness and spasm in muscles in
the plaintiff’s lower back and “[d]ecreased sensation in the L5-S1
distribution.”

(R. at 585).

Ms. Eli returned to Dr. Jindal on May

20, 2013, again with back pain radiating down her thigh and leg.
(R. at 583).

Dr. Jindal noted symptoms similar to those observed

at the prior examination.

(R. at 583).

However, the pain

management protocol did appear to provide some relief.
583).

9

(R. at

Ms. Eli also saw Dr. Fruchter for her continued right flank
pain.

(R. at 375-76).

She returned to Dr. Riechers’ office,

receiving another gel injection to her right ureter on June 6,
2013.

(R. at 468).

Despite this injection, she was hospitalized

on June 18, 2013, for a “massive obstruction” in her ureter.
at 465).

(R.

She received a nephrostomy,9 which relieved her pain, and

was discharged the next day.

(R. at 465-66).

She had a follow-up

appointment on June 21, 2013, as she was continuing to have
tenderness on her right side.
with Vitamin D and oxycodone.

(R. at 547).
(R. at 550).

Ms. Eli was treated
Dr. Riechers examined

the plaintiff on July 1, 2013, reporting that she was still in
pain.

(R. at 463).
On July 18, 2013, Ms. Eli again saw Dr. Jindal.

(R. at 581).

He reported that the plaintiff suffered muscle spasms in the
lumbosacral region.

(R. at 581).

She was able to perform a right

straight leg raise to 40 degrees, and a left straight leg raise to
70 degrees.

(R. at 581).

Dr. Jindal noted that she had been

prescribed pain medication by a different doctor and told her to
follow up with a nephrologist for her abdominal issues. (R. at 58182).

She saw another doctor for her flank pain on July 23, 2013,

and received antibiotics and oxycodone.
9

(R. at 543-46).

She was

A nephrostomy is “[e]stablishment of an opening between
the collecting systems of the kidney through its parenchyma to the
exterior of the body.” Stedman’s 1192.
10

treated again for her flank pain on July 25, 2013.

(R. at 575).

On August 6, 2013, Ms. Eli was referred to Dr. Bella Malits
for pain management.

Dr. Malits noted that she was suffering from

abdominal and lower back pain, rating it “8 to 9/10 throughout the
course of the day.”

(R. at 486-88).

Dr. Malits prescribed

oxycodone, though she cautioned Ms. Eli on the long term negative
impacts of opiate usage.

(R. at 487-88).

Dr. Malits referred Ms.

Eli to Nurse Practitioner Patricia Morelli-Sager for continued
treatment.

(R. at 488).

On August 9, 2013, Ms. Eli saw another nurse practioner,
Patricia Rudy, for vaginal pain and tenderness.

(R. at 537).

Ms.

Rudy performed a pap smear, which was negative for any lesion or
malignancy.

(R. at 555).

Ms. Eli returned on August 20, 2013,

with continued vaginal pain and tenderness. (R. at 535). Ms. Rudy
prescribed acyclovir.

(R. at 536).

Ms. Eli saw Ms. Morelli-Sager for the first time on September
9, 2013.

(R. at 482).

Ms. Morelli-Sager indicated that nerve

blocks and oxycodone had not seemed to help the plaintiff, and she
was currently experiencing pain at a 10/10 level on a daily basis.
(R. at 482).

Ms. Morelli-Sager noted that Ms. Eli had stooped

posture and an antalgic gait, though she did not require a cane or
walker.

(R. at 482).

The plaintiff was able to perform her

activities of daily living, though Ms. Morelli-Sager noted that
11

these activities were growing increasingly difficult due to the
pain.

(R. at 482).
Meanwhile, Ms. Eli saw Dr. Riechers and discussed treatment

options for her continued pain.

(R. at 498).

Given the lack of

progress and her ongoing pain, she elected to have surgery to
remove her problematic right kidney.

(R. at 498).

The plaintiff

received a preoperative evaluation on September 10, 2013.

(R. at

530). The evaluation revealed nothing out of the ordinary; Ms. Eli
did not have any muscle atrophy, weakness, or joint injury. (R. at
530-33).

An echocardiogram was performed, and found mild mitral

and tricuspid regurgitation.

(R. at 572).

The kidney removal

itself was performed by Dr. Riechers on September 17, 2013. (R. at
694).

He noted that the surgery was on a “semi-urgent” basis due

to the plaintiff’s ongoing pain.

(R. at 694).

The surgery went as

planned, and the right kidney was entirely removed.
95).

(R. at 694-

Ms. Eli was still in pain from the procedure the next day,

but there did not appear to be any more serious side effects.

(R.

at 507).
Ms. Eli saw Ms. Morelli-Sager again on October 1, 2013.
at 625).

(R.

Ms. Morelli-Sager observed that the plaintiff walked in

a hunched position with stooped posture, and a slightly antalgic
gait, and generally appeared to be in some distress.

(R. at 625).

As was the case in the prior examination, Ms. Morelli-Sager noted
12

that Ms. Eli was having increased difficulty performing her daily
activities due to chronic pain.

(R. at 625).

Dr. Riechers saw the

plaintiff for a follow-up appointment on October 10, 2013, noting
that she was still in pain.

(R. at 580).

He also performed an

ultrasound, which confirmed that there were no issues with the left
kidney, but that she was not properly emptying her bladder. (R. at
580).
Ms. Eli saw Ms. Morelli-Sager again on October 15, 2013.
at 626).

(R.

The plaintiff still had pain if she had to hold her

urine, but her doctors believed that this was relatively normal.
(R. at 626).

And while Ms. Morelli-Sager again noted Ms. Eli’s

stooped posture and antalgic gait, she also observed that the
plaintiff was “able to get through her [activities of daily living]
without too much difficulty.”

(R. at 626).

A week later, on

October 22, 2013, Ms. Eli went to emergency room with worsening
right flank pain.

(R. at 510-12).

The doctors ran several tests

to determine the source of the pain, with no success.

(R. at 511).

Ms. Eli was discharged the next morning as her acute pain wore off.
(R. at 511-12).

On November 1, 2013, Ms. Eli sprained her ankle

and went to Ms. Rudy for treatment.

(R. at 521).

An x-ray

revealed no signs of significant injury or joint abnormality.
at 565).

(R.

By the time of her follow-up appointment on November 8,

2013, the plaintiff was in significantly less pain.
13

(R. at 516).

On the same day she met with Dr. Riechers for continued right flank
pain.

(R. at 578).

Dr. Riechers performed a cystoscopy which

found nothing of note.

(R. at 578).

Ms. Eli returned to her doctors for treatment of a urinary
tract infection on December 10, 2013.
test

was

negative,

but

Ms.

Eli

omeprazole, and Ciprofloxacin.

(R. at 662).

was

treated

A preliminary

with

(R. at 662, 666).

oxycodone,

Dr. Riechers

performed an ultrasound of her kidneys three days later, which was
unremarkable. (R. at 641). However, the plaintiff continued to be
in great pain, and saw Ms. Morelli-Sager on December 16, 2013. (R.
at 699). Ms. Morelli-Sager again noted that Ms. Eli could complete
her activities of daily living “without too much difficulty.”

(R.

at 699).
Ms. Rudy treated Ms. Eli on January 10, 2014, for chest pain
radiating through the left side of her neck and left arm.
658).

(R. at

The plaintiff returned on January 13, 2014, at which time

Ms. Rudy noted that the plaintiff could perform her activities of
daily living “without too much difficulty.”

(R. at 628).

Ms. Eli

saw Dr. Samin Sharma for her chest pain on January 15, 2014.
at

611).

Dr.

Sharma

believed

that

this

pain

was

(R.

“likely

psychosomatic in nature,” and suggested that Ms. Eli continue with
her medications, exercise, and eat a healthy diet.

(R. at 613).

Ms. Eli was treated by Dr. Verhoest on January 21, 2014, for
14

continued chronic right flank and pelvic pain.
Verhoest

performed

a

bladder

(R. at 701).

instillation,10

which

significant improvement in Ms. Eli’s pelvic pain.

lead

Dr.
to

(R. at 701).

The success of the treatment lead Dr. Verhoest to believe that the
plaintiff was suffering from painful bladder syndrome.11 (R. at
701).

Dr. Verhoest examined Ms. Eli again on February 25, 2014.

(R. at 705).

Dr. Verhoest ran more tests and concluded that there

had not been a significant reduction in pain due to the bladder
instillation, and therefore the problem was likely not originating
in the bladder.

(R. at 705).

out a gastroenterologist
on March 12, 2014.
Eli’s

pain

was

Dr. Verhoest suggested Ms. Eli seek

(R. at 705), and she saw Dr. Roxan Saidi

(R. at 688-89).
due

to

a

Dr. Saidi concluded that Ms.

combination

of

factors

including

“endometriosis, chronic narcotic use, adhesions from a pelvic
surgery and bowel surgery, and recurrent ureteral disease.” (R. at
689).

Dr. Saidi recommended further tests in order to determine

10

A bladder instillation is a treatment for interstitial
cystitis in which the doctor uses a catheter to insert medication
directly into the bladder, where it remains for about fifteen
minutes before being expelled via urination. Interstitial Cystitis
-- Diagnosis & Treatment, available at http://www.mayoclinic.org/
diseases-conditions/interstitial-cystitis/diagnosis-treatment/tre
atment/txc-20251968 (last visited Aug. 21, 2017).
11

Painful bladder syndrome is another name for interstitial
cystitis.
Interstitial
Cystitis,
available
at
http://www.mayoclinic.org/diseases-conditions/interstitial-cystit
is/home/ovc-20251830 (Last visited Aug. 21, 2017).
15

more accurately the cause of Ms. Eli’s pain.

(R. at 689).

To that

end, Dr. Saidi performed an endoscopy and a colonoscopy on March
19, 2014.

(R. at 690).

Other than a minor hernia, these tests

revealed nothing of note.

(R. at 690-91).

Dr. Saidi concluded

that the chronic pain was likely due to irritable bowel syndrome
and narcotic gut.

(R. at 691).

Ms. Eli saw Ms. Morelli-Sager during this time period as well.
On February 10, 2014, Ms. Morelli-Sager noted that Ms. Eli’s
chronic pain was making it increasingly difficult for her to get
through her daily activities.

(R. at 629).

Ms. Morelli-Sager

examined Ms. Eli again on March 4, 2014, and made the same
findings.

(R. at 631).

Given the potential side effects of long

term oxycodone usage, Ms. Morelli-Sager prescribed methadone as a
long term pain control medication.

(R. at 631-32).

However, the

plaintiff took a methadone tablet the same day and had a negative
reaction, experiencing tightness in the chest and nausea.
633).

(R. at

On March 11, 2014, Ms. Eli saw Ms. Morelli-Sager again,

still experiencing a great deal of pain in her pelvis, flank, and
leg.

(R. at 634).

Ms. Morelli-Sager again noted that Ms. Eli was

having increased difficulty completing her activities of daily
life.

(R. at 634).
Meanwhile, Dr. Riechers was attempting to determine the cause

of Ms. Eli’s continued pain.

On March 12, 2014, Dr. Riechers
16

performed a cytoscopy and urethral dilation and observed symptoms
consistent with interstitial cystitis.

(R. at 640).

Ms. Eli also

had a CT scan of her abdomen and pelvis done on March 22, 2014.
(R. at 680).

While this scan showed no issues with her kidneys, it

did

high

show

a

density

in

gallstones or biliary sludge.

the

gallbladder,

(R. at 680).

indicative

of

Later that day, Ms.

Eli went to the emergency room, complaining of left-sided abdominal
pain.

(R. at 683).

She was discharged home a few hours later

after receiving pain medication.

(R. at 685-86).

An x-ray was

performed that showed she had abnormal curvature in her spine, but
no acute issues.

(R. at 682).

Ms. Eli followed up with Ms. Morelli-Sager on March 26, and
told her of the interstitial cystitis diagnosis. (R. at 636). The
plaintiff also told Ms. Morelli-Sager that she was having chronic
back pain.

(R. at 636). Ms. Morelli-Sager again noted that Ms.

Eli’s pain was making it increasingly difficult to live her daily
life.

(R. at 636).

The plaintiff returned to one of her doctors,

Dr. Loretta Obi, two days later, March 28, 2014, complaining of
lower abdominal pain.

(R. at 648).

Dr. Obi noted that Ms. Eli was

not suffering from any muscle atrophy or weakness, and that she had
intact joints and a normal gait.

(R. at 651).

plaintiff more oxycodone for her pain.

Dr. Obi gave the

(R. at 652).

Ms. Eli then injured her back while fishing, and was treated
17

by Dr. Sumita Mazumdar on April 17, 2014.

(R. at 645-47).

A

physical examination confirmed muscle cramps and spasms in the
lower back, and Dr. Mazumdar prescribed Tylenol with codeine for
the pain.

(R. at 645-46).

The plaintiff went to the emergency

room on April 26, 2014, with continuing abdominal pain.
678).

She was given Percocet and discharged.

(R. at

(R. at 679).

Two months later, Ms. Eli was in a car accident and broke her
hand.

(R. at 729-31).

The doctors who treated her noted that her

motor movements were weakened, and there was swelling, but no
scissoring, crossover, or indications of a more severe break.
at 729-31).

(R.

She followed up a month later, on July 16, 2013,

complaining that she still was feeling a persistent ache from the
injury.

(R. at 726-28).

The doctor recommended weaning the

plaintiff off the pain medication and the brace she was wearing,
and encouraging her to perform hand strengthening exercises.

(R.

at 728).
B.

Procedural History

The Commissioner initially denied the plaintiff’s claim for
SSI benefits.

(R. at 66-75, 78-89).

Ms. Eli requested a hearing

before an administrative law judge (“ALJ”) to review this decision
(R. at 90-92), and the hearing was held on July 18, 2014, before
ALJ Robert Gonzalez (R. at 39-65).
At the hearing both the plaintiff and a vocational expert,
18

Sugi Pomerov, testified.

(R. at 41-65).

Ms. Eli testified that

she had completed ninth grade, and never received a high school
diploma or undertaken any other further education.

(R. at 42-43).

She had not worked for the prior fifteen years, and was being
supported by her family.
and four children.

(R. at 43).

She lived with her boyfriend

(R. at 43).

The plaintiff testified that she suffered from kidney issues,
Crohn’s disease, interstitial cystitis, endometriosis, scoliosis,
and osteoporosis.

(R. at 44).

She discussed how her various

illnesses made daily activities like standing, sitting, or walking
more difficult.

(R. at 46-47).

Due to her urinary issues, she

needed to use the restroom every fifteen minutes.

(R. at 45).

Ms.

Eli was unable to walk for more than five or ten minutes, stand in
place for more than five to seven minutes, or sit for more than ten
minutes.

(R. at 47-48).

Due to the pain, the plaintiff struggled

to take care of her children and required their help for household
tasks like laundry, cleaning, and cooking. (R. at 50). Her medical
conditions prevented her from engaging in other basic activities
like tying her shoes, driving a car, or sitting through a movie.
(R. at 52-53).

She was also forced to homeschool her children

because they were missing too many days of school to care for her.
(R.

at

50-51).

Unfortunately,

her

pain

medication

was

not

providing adequate relief for these problems. (R. at 48). Ms. Eli
19

also claimed that she was having difficulties with short term
memory.

(R. at 49).

Since the plaintiff had no prior work history, the ALJ
provided the vocational expert, Ms. Pomerov, with two hypothetical
scenarios.

(R. at 60-61).

Ms. Pomerov found that if Ms. Eli had

the general residual functional capacity for sedentary work and was
able to handle objects with her right arm, stoop, crouch, kneel,
and remember, understand and carry out simple work, she would be
able to work in positions such as surveillance system monitor,
telephone quotation clerk, food and beverage order clerk, or call
out operator.

(R. at 60-61).

If Ms. Eli had these abilities, but

would be off-task twenty percent of a normal work day beyond
standard breaks, Ms. Pomerov believed that there would be no job
for which Ms. Eli would qualify.

(R. at 61).

On January 8, 2015, the ALJ found that Ms. Eli was not
disabled.

(R.

at

18-32).

The

Appeals

Council

plaintiff’s request for review on June 22, 2016.

denied

the

(R. at 1-3).

Discussion
A.

Standard of Review

A claimant is disabled under the Social Security Act and
therefore entitled to disability benefits if she can demonstrate,
through medical evidence, that she is unable to “engage in any
substantial

gainful

activity

by
20

reason

of

any

medically

determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than [twelve] months.”

42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A); see also Arzu v. Colvin, No. 14
Civ. 2260, 2015 WL 1475136, at *7 (S.D.N.Y. April 1, 2015).

The

disability must be of “such severity that [the plaintiff] is not
only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant is entitled to disability
benefits, the ALJ must employ a five-step sequential analysis.
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

20

First, the claimant must

demonstrate that she is not currently engaging in substantial
gainful

activity.

20

416.920(a)(4)(i), (b).

C.F.R.

§§

404.1520(a)(4)(i),

(b),

Second, the claimant must prove that she

has a severe impairment that significantly limits her physical or
mental ability to perform basic work activities.

20 C.F.R. §§

404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c).

Third, if the

impairment is listed in what are known as “the Listings,” see 20
C.F.R. Part 404, Subpt. P, App. 1, or is the substantial equivalent
of a listed impairment, the claimant is automatically considered
disabled.

20

C.F.R.

§§
21

404.1520(a)(4)(iii),

(d),

416.920(a)(4)(iii), (d). Fourth, if the claimant is unable to make
the requisite showing at step three, she must prove that she does
not have the residual functional capacity to perform her past work.
20 C.F.R. §§ 404.1520(a)(4)(iv), (e), 416.920(a)(4)(iv), (e).
Fifth, if the claimant satisfies her burden of proof on the first
four steps, the burden shifts to the AlJ to demonstrate that there
is alternative substantial gainful employment in the national
economy

that

the

404.1520(a)(4)(v),

claimant
(g),

can

perform.

416.920(a)(4)(v),

20
(g),

C.F.R.

§§

416.960(c);

Longbardi v. Astrue, No. 07 Civ. 5952, 2009 WL 50140, at *23
(S.D.N.Y. Jan. 7, 2009) (citing Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999), and Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.
1986)).
other

In order to determine whether the claimant can perform

substantial

gainful

employment,

the

ALJ

must

consider

objective medical facts, diagnoses or medical opinions based on
these facts, subjective evidence of pain or disability, and the
claimant’s educational background, age, and work experience. Brown
v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
Under Rule 12(c) of the Federal Rules of Civil Procedure, a
party is entitled to judgment on the pleadings if she establishes
that no material facts are in dispute and that she is entitled to
judgment as a matter of law.

See Sellers v. M.C. Floor Crafters,

22

Inc., 842 F.2d 639, 642 (2d Cir. 1988); Morcelo v. Barnhart, No. 01
Civ. 743, 2003 WL 470541, at *4 (S.D.N.Y. Jan. 21, 2003).
The

Social

Commissioner's

Security

findings

Act

“as

to

provides
any

that

fact,

substantial evidence, shall be conclusive.”

if

the

Acting

supported

by

42 U.S.C. § 405(g).

A court reviewing the Acting Commissioner's decision “may set aside
a decision of the Commissioner if it is based on legal error or if
it is not supported by substantial evidence.” Geertgens v. Colvin,
No. 13 Civ. 5133, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014)
(quoting Hahn v. Astrue, No. 08 Civ. 4261, 2009 WL 1490775, at *6
(S.D.N.Y. May 27, 2009)); accord Longbardi, 2009 WL 50140, at *21.
Judicial review, therefore, involves two levels of inquiry.
First, the court must decide whether the Acting Commissioner
applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir. 1999); Calvello v. Barnhart, No. 05 Civ. 4254, 2008 WL
4452359, at *8 (S.D.N.Y. April 29, 2008).

Second, the court must

decide whether the ALJ’s decision was supported by substantial
evidence.

Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at

*8.

determining

“In

whether

substantial

evidence

exists,

a

reviewing court must consider the whole record, examining the
evidence from both sides, because an analysis of the substantiality
of the evidence must also include that which detracts from its
weight.”

Longbardi, 2009 WL 50140, at *21 (citing Brown, 174 F.3d
23

at 62, and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)).
Substantial
scintilla.

evidence

in

this

context

is

“more

than

a

mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Hahn, 2009 WL

1490775, at *6 (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).
B.

The ALJ’s Decision

ALJ Gonzalez evaluated Ms. Eli’s claim pursuant to the five
step sequential evaluation process and concluded that Ms. Eli was
not disabled at any time since the alleged onset date.

(R. at 21-

32).
At step one, the ALJ found that Ms. Eli had not engaged in
substantial gainful activity in the relevant time period.
23).

(R. at

At step two, he determined that Ms. Eli had the following

severe impairments: irritable bowel syndrome, status post right
nephrectomy, right hydronephrosis, lumbar spine radiculopathy,
cervical spine degenerative disc disease, status post carpel tunnel
syndrome, fibromyalgia, rheumatoid arthritis, and a closed nondisplaced fracture of the fifth metacarpal bone in the right hand.
(R. at 23).

At step three, however, the ALJ determined that none

of these impairments was of a severity to meet or medically equal
one of the “listed impairments” in Appendix 1 of the regulations.
(R. at

25-26).
24

At step four, the ALJ determined that the plaintiff had the
residual functional capacity to “perform sedentary work as defined
in 20 CFR 416.967(a) except [she] can frequently handle and finger
with the right upper extremity; can occasionally stoop, crouch and
kneel; and can understand, remember and carry out simple routine
work.”

(R.

at

26).

In

reaching

this

conclusion,

the

ALJ

considered the plaintiff’s reported symptoms and found that “the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for
several reasons.”

(R. at 27).

In particular, the ALJ found that

the medical records did not support the plaintiff’s testimony
regarding

her

disability

and

contradicted

the

statements of Drs. Fruchter, Jindal, and Bromberg.

medical

source

(R. at 27-31).

The ALJ considered the opinions of these doctors, but gave them
less than controlling weight.

(R. at 30).

At step five, the ALJ determined that given her residual
functional capacity, Ms. Eli could work as a sedentary, unskilled
worker in a position such as a surveillance system monitor, call
out operator, telephone quotation clerk or food/beverage order
clerk.

(R. at 32).

Therefore, a finding of “not disabled” was

appropriate.
The plaintiff challenges the ALJ’s decision on the grounds
that the ALJ (1) failed to given controlling weight to the treating
25

physicians in assessing his residual functional capacity; and (2)
improperly rejected the plaintiff’s testimony about her functioning
and symptomology.

(Plaintiff’s Brief in Support of a Motion for

Judgment on the Pleadings (Social Security) at 11-18).
C.

Treating Physician Rule

The plaintiff claims that the ALJ erroneously evaluated the
medical evidence by improperly assigning limited weight to the
findings

of

Drs.

Jindal,

Fruchter,

and

Bromberg.

The

SSA

regulations establish that “the opinion of a claimant’s treating
physician as to the nature and severity of the impairment is given
‘controlling weight’ so long as it ‘is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case
record.’”

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)

(alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2));
Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 426 (S.D.N.Y.
2010).

“This preference is generally justified because treating

sources are likely to be ‘the medical professionals most able to
provide a detailed, longitudinal picture’ of a plaintiff’s medical
impairments and offer a unique perspective that the medical tests
and

SSA

consultants

are

unable

to

obtain

or

communicate.”

Correale-Englehart, 687 F. Supp. 2d at 426 (quoting 20 C.F.R. §
416.927(d)(2)).
26

In considering a treating source’s opinion, “the ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion.”

Rosa, 168 F.3d at 79 (quoting McBrayer v. Secretary of

Health and Human Services, 712 F.2d 795, 799 (2d Cir. 1983)); see
also Wagner v. Secretary of Health and Human Services, 906 F.2d
856, 862 (2d Cir. 1990) (noting that an ALJ’s critique “must be
overwhelmingly compelling in order to overcome a medical opinion”).
However, determination of “dispositive” issues, such as whether the
plaintiff “meet[s] the statutory definition of disability” and
cannot work, are reserved for the Commissioner.

20 C.F.R. §§

404.1527(d)(1), 416.927(d)(1); see Snell v. Apfel, 177 F.3d 128,
133 (2d Cir. 1999).
The ALJ is not required to give the treating physician
controlling weight, but he is required to give “good reasons” for
the

assignment

of

weight

that

404.1527(c)(2), 416.927(c)(2).

he

chooses.

20

C.F.R.

§§

“Reserving the ultimate issue of

disability to the Commissioner relieves the [SSA] of having to
credit a doctor’s finding of disability, but it does not exempt
administrative decisionmakers from their obligation . . . to
explain

why

credited.”

a

treating

physician’s

opinions

are

not

being

Snell, 177 F.3d at 134.

If the ALJ determines that a treating physician’s opinion is
not

controlling,

he

must

consider
27

the

following

factors

in

determining the weight to be given to that opinion: (1) the length
of the treatment relationship and the frequency of examination; (2)
the nature and extent of the relationship; (3) the evidence
provided to support the treating physician’s opinion; (4) the
consistency of the opinion with the record as a whole; (5) whether
the opinion is from a specialist; and (6) other factors brought to
the Commissioner’s attention that tend to support or contradict the
opinion.

20 C.F.R. §§ 404.1527(c), 416.927(c); see Halloran, 362

F.3d at 32.

“The ALJ is not required to explicitly discuss the

factors, but it must be clear from the decision that the proper
analysis was undertaken.”

Fontanarosa v. Colvin, No. 13 CV 3285,

2014 WL 4273321, at *9 (E.D.N.Y. Aug. 28, 2014).
1.

Findings of the Treating Physicians

In February 2013, Dr. Bromberg, Dr. Fruchter, and Dr. Jindal
each independently filled out medical source documents addressing
Ms. Eli’s physical capacity to work.
Dr.
diagnosed

Fruchter,
her

hydronephronesis.
prognosis

in

the

with

plaintiff’s

chest

pain,

(R. at 457).

terms

of

ability

primary
right

care
flank

physician,
pain,

He opined that while Ms. Eli’s
Ms.

to

work

was

“fair,”

impairments were expected to last at least another year.
457).

and

her

(R. at

Dr. Fruchter believed that given her state, Ms. Eli would

not be able to work, and she would be absent more than three times
28

a month if she did have a job.

(R. at 457).

He noted that Ms.

Eli’s pain frequently interfered with her concentration, and she
had a marked limitation in ability to deal with work stress.
at 457).

(R.

Dr. Fruchter found that the plaintiff could only sit,

stand, or walk for under two hours, and could only walk a single
block without rest or severe pain.

(R. at 457).

He noted that Ms.

Eli could not carry heavy loads, though she could occasionally
carry ten pounds and frequently carry less than five pounds. (R. at
457).
Dr. Bromberg’s medical source document largely mirrors that of
Dr. Fruchter. The primary difference is that Dr. Bromberg believed
that Ms. Eli could only walk half of a city block without severe
pain or rest, and could only occasionally carry less than five
pounds, and never carry more than ten.

(R. at 458).

Dr. Jindal

reached much the same conclusions.

Dr. Jindal believed that the

plaintiff’s prognosis was guarded.

(R. at 459).

He opined that

she could sit, stand, or walk for about two hours without rest, and
walk between one-half and a whole city block.

(R. at 459).

But he

agreed with Drs. Bromberg and Fruchter that she could not work, and
that she would be absent more than three times each month.
459).

29

(R. at

2.

Analysis

The ALJ assigned “little weight” to the opinions of Drs.
Fruchter, Bromberg, and Jindal because, according to the ALJ, their
opinions did not comport with the medical records.

(R. at 30).

Additionally, the ALJ noted that these opinions were proffered
prior to Ms. Eli’s carpal tunnel and kidney removal surgeries which
improved her condition.
First, for all three of these opinions, the ALJ failed to
consider all the factors relevant to determine how much weight to
assign each opinion.

The ALJ appears to have considered only two

of the six required factors -- the evidence provided to support the
medical source statement and the consistency of the opinion with
the whole record.

While the ALJ is not required to make a rote

recitation of each prong, there was no discussion of potentially
influential factors like the length and frequency of treatment, and
the doctors’ respective specialties.

Dr. Bromberg appears to be a

urologist or renologist. (R. at 402). Dr. Jindal is a neurologist
and pain management specialist. (R. at 460). While there are only
records from a single meeting with Dr. Bromberg (R. at 438), it
appears that Dr. Bromberg works in the same office as Dr. Riechers,
who treated the plaintiff many times (R. at 164). Dr. Fruchter, as
Ms. Eli’s primary physician, treated her starting in August 2012,
and throughout the relevant time period.
30

(R. at 166).

The

plaintiff also saw Dr. Jindal many times in 2013 for her pain
management.

(R. at 460, 476, 581-583, 585-86, 590).

The ALJ

appears to have paid no regard to these factors which potentially
weigh in favor of deference.

This alone is grounds for remand.

See, e.g., Ramos v. Commissioner of Social Security, No. 13 CV
3421, 2015 WL 7288658, at *7 (S.D.N.Y. Nov. 16, 2015); Clark v.
Astrue, No. 08 CV 10389, 2010 WL 3036489, at *4 (S.D.N.Y. Aug. 4,
2010).
But beyond the failure to evaluate the proper factors, the
reasoning that the ALJ does provide for his decision is inadequate.
He notes that much of the medical record indicates that Ms. Eli was
“neurologically intact with no issues with strength sensation or
reflex,” and argues that this contradicts the three treating
physicians’ findings.

(R. at 30).

However, the lack of these

symptoms in no way precludes the treating physicians’ reports on
her capacity to work.

Rosa, 168 F.3d at 79 (“[T]he ALJ simply was

not in a position to know whether the absence of [certain symptoms]
would in fact preclude the disabling loss of motion described by
[treating physician] in his assessment.”).

By the very nature of

Ms. Eli’s ailments, this sort of physical evidence would not have
been present.

Ms. Eli’s primary complaints did not relate to

strength, reflex, or limitations of movement, but rather to extreme
chronic pain, particularly in her abdomen.
31

This pain was well

documented by multiple doctors over the course of many years, none
of whom expressed any doubts about Ms. Eli’s credibility in
reporting her pain.

And her various treating physicians note the

severity of these symptoms repeatedly. (R. at 482, 409, 699, 634).
The ALJ also failed to cite any medical opinion to dispute the
treating physicians’ conclusions.

“In the absence of supporting

medical opinion, the ALJ should not have engaged in his own
evaluations of the medical findings.”
Supp. 165, 170 (E.D.N.Y. 1996).

Filocomo v. Chater, 944 F.

Yet that is exactly what ALJ

Gonzalez did. No consulting physician examined Ms. Eli or reviewed
her medical history.
slightly

different

And while some of her other doctors provided
evaluations

at

different

points

in

their

treatment as Ms. Eli’s symptoms waxed and waned, none of them
opined on Ms. Eli’s ability to work, or provided evidence to
contradict

the

three

treating

physicians’

reports.

The

ALJ

maintained that Ms. Morelli-Sager noted at several points that Ms.
Eli could perform her activities of daily living.

(R. at 30).

But

Ms. Morelli-Sager also repeatedly noted that these activities were
growing more and more difficult for the plaintiff due to her pain.
(R. at 629, 631, 634, 636).

Furthermore, it is unclear what these

activities entailed, and how they might translate to being able to
work at a sedentary job.

Cf.

Browne v. Commissioner of Social

Security, 131 F. Supp. 3d 89, 99-100 (S.D.N.Y. 2015) (explicit
32

listing of activities of daily living claimant meant treating
physician’s

“opinion

was

inconsistent

medical evidence in the record”).

with

other

substantial

The claimant’s “ability to

perform some daily activities does not necessarily conflict with
[the treating physicians’] opinions regarding [the claimant’s]
functional

limitations

environment.

in

an

eight-hour

competitive

work

Cabrera v. Berryhill, No. 16 CV 4311, 2017 WL

3172964, at *12 (S.D.N.Y. July 25, 2017).

While the ALJ can and

should consider the claimant’s everyday activities in making his
determination, it is legal error to presume, without further
development, that such activities demonstrate a lack of disability.
Archambault v. Astrue, No. 09 Civ. 6363, 2010 WL 5829378, at *30
(S.D.N.Y. Dec. 13, 2010), report and recommendation adopted, 2011
WL 649665 (S.D.N.Y. Feb. 17, 2011).
The ALJ also found that the conservative treatment recommended
by Ms. Eli’s doctors is evidence of a lack of disability.
30).

(R. at

First, I do not agree that a nearly decade-long treatment

program,

often

specialists

each

involving
month,

multiple

examinations

continued

prescriptions

by
of

different
powerful

painkillers like oxycodone, repeated in-patient hospitalizations,
and a number of surgeries requiring general anaesthesia including
the removal of Ms. Eli’s entire right kidney, constituted a
“routine” or “conservative” treatment plan.
33

There may have been

individual meetings where one of Ms. Eli’s doctors suggested a more
conservative course of action, but the ALJ has zeroed in on these
relatively few suggestions without regard for the vast majority of
the record.

And even if the ALJ’s analysis were correct, the

Second Circuit has stated that the treating physician’s opinion
should not “be discounted merely because he has recommended a
conservative treatment regimen.” Burgess, 537 F.3d at 129; Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see also Holman v.
Colvin, No. 12 Civ. 5817, 2014 WL 941823, at *6 n.2 (S.D.N.Y. March
11, 2014). To do so improperly substituted the ALJ’s understanding
of the severity of the illness and proper medical treatment for
that of the physician.

Mercado v. Colvin, No. 15 Civ. 2283, 2016

WL 3866587, at *17 (S.D.N.Y. July 13, 2016).
The ALJ also discredited the treating physicians’ reports
because they predated Ms. Eli’s carpal tunnel and kidney removal
surgeries.

(R. at 30).

He found that these operations “showed

improvement to the claimant’s condition.”

(R. at 30).

However,

the record does not support this conclusion, particularly with
regard to the kidney removal.

While Dr. Riechers expected the

kidney

Ms.

removal

to

eliminate

Eli’s

symptoms,

this

was

unfortunately not the result. (R. at 579). Ms. Morelli-Sager, Dr.
Saidi, and Dr. Riechers himself all noted continued and even
worsening pain after this operation, leading to further treatment,
34

surgery, and medication.

(R. at 628-31, 634, 636, 640, 651,

688-

89, 699). While an ALJ need not “mention[] every item of testimony
presented,” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983),
he may not ignore or mischaracterize evidence, see Erickson v.
Commissioner of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009);
Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008).
Given that the ALJ has not offered adequate reasons to
discount the opinions of Dr. Fruchter, Dr. Bromberg, and Dr.
Jindal, remand is appropriate.

See, e.g. Augustine v. Astrue, No.

11 Civ. 3886, 2012 WL 2700507, at *9-10 (E.D.N.Y. July 6, 2012).
D.

Credibility

The plaintiff also alleges that the ALJ improperly rejected
her own testimony regarding her symptoms.

The ALJ’s credibility

findings are entitled to deference as long as they are sufficiently
specific and supported by substantial evidence.
Colvin,

681

F.

App’x

98,

100

(2d

Cir.

Tricarico v.

2017);

Simmons

v.

Commissioner of Social Security, 103 F. Supp. 3d 547, 569 (S.D.N.Y.
2015).

The ALJ’s task is to determine the extent to which the

claimant’s self reported symptoms could “‘reasonably be accepted as
consistent with the objective medical evidence and other evidence’
of record.”
curiam)

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per

(quoting

20

CFR

§

404.1529(a)).

In

assessing

the

plaintiff’s assertions of pain and limitations, the ALJ must follow
35

a two step process.
claimant

has

a

First, the ALJ must determine whether the

“medically

determinable

impairment

that

could

reasonably be expected to produce” the alleged symptoms. 20 C.F.R.
§ 416.929(b).

Second, the ALJ must evaluate “the intensity and

persistence of [the claimant’s] symptoms” and determine how much
they

impair

the

claimant’s

ability

to

work.

20

C.F.R.

§

416.929(c).
Here, the ALJ only discussed the second half of the inquiry,
finding that Ms. Eli’s description of

the effect of her symptoms

on her daily living was not credible because it was contradicted by
the medical records.

(R. at 30).

In particular, the ALJ noted

that aside from Ms. Eli’s “own testimony, there is little other
evidence in the record to support her preclusion from her essential
activities of daily living,” again citing Ms. Morelli-Sager’s notes
that the plaintiff was able to complete some activities of daily
living.

(R. at

30).

But, as discussed above, the ALJ’s analysis

of Ms. Morelli-Sager’s notes focused solely on the reports that fit
his

evaluation,

while

ignoring

her

other

reports

that

these

activities were growing more difficult. Moreover, the ALJ provides
no reason for crediting some of these reports over the others.
This is not a case where the plaintiff’s claims are flatly refuted
by or find no support in the medical record.

36

Cf. Besser v.

Berryhill, No. 16 CV 850, 2017 WL 2869931, at *5 (N.D.N.Y. July 5,
2017).
The ALJ reasoned that Ms. Eli’s attempt to go fishing showed
that her claims of disability were not credible
argument adopted by the Commissioner.

(R. at 30), an

(Memorandum of Law in

Support of the Defendant’s Cross Motion for Judgment on the
Pleadings and in Opposition to the Plaintiff’s Motion for Judgment
on the Pleadings at 24).
to be found disabled.”

But, “a claimant need not be an invalid

Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.

1998) (quoting Williams, 859 F.2d at 260). A claimant’s activities
do not rebut her claim of disability “unless there is proof that
the claimant engaged in those activities for sustained periods of
time comparable to those required to hold a sedentary job.”
Polidoro v. Apfel, No. 98 Civ. 2071, 1999 WL 203350, at *8
(S.D.N.Y. April 12, 1999). The fact that Ms. Eli was injured while
briefly performing a low impact, sedentary activity like fishing
does not undermine her claim of disability.

“When a disabled

person gamely chooses to endure pain in order to pursue important
goals,” such as basic daily activities, “it would be a shame to
hold this endurance against [her] in determining benefits unless
[her] conduct truly showed that [she] is capable of working.”
Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir. 1989).

Therefore, on

remand, the ALJ must reevaluate the plaintiff’s credibility in
37