Castagna v. Colvin
OPINION AND ORDER: For the reasons set forth above, the Commissioner's determination that Castagna was not disabled within the meaning of the Social Security Act during the period from October 17, 2010 to December 11, 2014 is supported by subs tantial evidence. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 20) is GRANTED and Castagna's motion (Dkt. No. 18) is DENIED. (Signed by Magistrate Judge Andrew J. Peck on 7/20/2017) (js) Modified on 7/20/2017 (js). Copies sent Via ECF
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
16 Civ. 6908 (AJP)
OPINION & ORDER
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Carl Castagna, represented by counsel, brings this action pursuant to
§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the
Commissioner of Social Security denying his application for Disability Insurance Benefits and
Supplemental Security Income. (Dkt. No. 1: Compl.) Presently before the Court are the parties'
cross motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 18:
Castagna Notice of Mot.; Dkt. No. 20: Comm'r Notice of Mot.) The parties have consented to
decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No.
For the reasons set forth below, the Commissioner's motion for judgment on the
pleadings (Dkt. No. 20) is GRANTED and Castagna's motion (Dkt. No. 18) is DENIED.
Castagna filed for benefits on April 13, 2011, alleging a disability onset date of
October 17, 2010. (Dkt. No. 15: Administrative Record ("R.") 396-97.) The Social Security
Administration ("SSA") initially denied Castagna's application. (R. 263-74.) On June 7, 2012,
Castagna, represented by counsel, had a hearing before Administrative Law Judge ("ALJ") Robert
Gonzalez. (R. 177-223.) On August 13, 2012, ALJ Gonzalez issued a decision denying Castagna's
claim. (R. 231-46.) Upon Castagna's request for review, the Appeals Council remanded the case
on September 20, 2013 for further administrative proceedings. (R. 253-55.) A second hearing was
held before ALJ Gonzalez on February 7, 2014 (R. 144-76) and continued on May 20, 2014 (R. 11043). On December 11, 2014, ALJ Gonzalez issued a written decision finding Castagna not disabled
within the meaning of the Social Security Act. (R. 71-97.) ALJ Gonzalez's decision became the
Commissioner's final decision when the Appeals Council denied Castagna's request for review on
July 5, 2016. (R. 1-4.)
Non-Medical Evidence and Testimony
Castagna was born on November 24, 1966, making him almost 44 years old at the
time of his alleged disability onset. (R. 418.) Castagna claims that he is disabled within the
meaning of the Act as a result of injuries sustained when he was struck by a moving vehicle on
October 17, 2010. (See R. 824-26.) At that time, Castagna was employed as a police officer for the
Town of Mount Pleasant Police Department; he previously was employed as a construction worker.
(R. 463.) Castagna was injured in the course of his duties as a police officer when he responded to
a disturbance, was struck by a moving vehicle's side-mirror, spun around, and fell to the ground,
sustaining injuries to the hip and lower back. (R. 824-26.) Another officer fired into the moving
vehicle that had struck Castagna and killed the driver. (R. 831.) Castagna alleges that several
months after this incident, the Chief of Police told him to "put [his] papers in and retire." (R. 184.)
Castagna testified that "a lot of people" erroneously believe that he shot the driver, and that these
beliefs constitute a "big problem" for him. (R. 202.)
Castagna testified that as a result of his injury, he experienced pain in his left knee,
both legs, lower back and neck. (R. 195-96.) Castagna testified that to manage his pain, he takes
pain medications "once or twice a week." (R. 152-53.) He also has received "trigger point
injections" and epidurals in order to help relieve his neck and lower back pain, and testified at his
February 7, 2014 hearing that the treatments help him out for "a month or two." (R. 165.) Castagna
further alleged at this hearing that he experiences numbness in his right hand when he extends his
right arm, causing difficulty utilizing that hand for things such as grabbing or typing. (R. 170.) He
noted that "[s]itting for a long period of time" causes him to stiffen up, which is uncomfortable if
he does not get up to walk around. (R. 210-11.) As a result of his injuries and the incident that led
to them, Castagna testified that he experiences panic attacks and flashbacks, feels isolated, and
purposefully avoids contact or interaction with other people. (R. 203, 209-10.)
Castagna lives alone and "basically just take[s] care of [him]self." (R. 193.) He
shops, cooks, and cleans for himself, and he visits his parents twice a day to socialize. (R. 168-69.)
He drives daily, and he still owns a motorcycle that he last rode in 2013. (R. 169, 171.) Castagna
visits the gym to exercise "at least twice a week," performing military presses, leg extensions, and
leg curls, using weights of approximately 20 to 30 pounds. (R. 199-200.) He is able to use the
elliptical machines, but experiences pain in the groin and hip area when he does so. (R. 200.) He
testified that he can go up and down the nine steps to get into his house from the outside, but that
it is a "little bit uncomfortable." (R. 156-57.)
At Castagna's May 2014 hearing, vocational expert Linda Vause testified. (R. 12141, 393-94.) Ms. Vause considered a hypothetical person who is able to do sedentary work and
"frequently feel with the right upper extremity"; "frequently handle and finger with the bilateral
upper extremities"; "occasionally reach overhead with the dominant right upper extremity";
"frequently reach over head with the left, non-dominant upper extremity"; "occasionally crouch";
"frequently flex, extend and rotate the neck"; "occasionally interact with the supervisors, coworkers
and the public"; and who must avoid "working at unprotected heights" and "police work." (R. 12324.) Ms. Vause testified that this hypothetical individual could perform the sedentary jobs of
document preparer, addresser, touch-up screener and ampoule sealer, all of which exist in significant
numbers in the national economy. (R. 124-25.) She further stated that even a person who could not
reach overhead with one hand would not be precluded from performing these jobs if he or she was
able to reach overhead with the other hand. (R. 126-27.)
Medical Evidence Before ALJ Gonzalez
ALJ Gonzalez considered medical evidence from October 17, 2010, the date of the
alleged onset of Castagna's disability, to December 11, 2014, the date of ALJ Gonzalez's decision.1/
Dr. Jeffrey Yormak
On September 25, 2009, prior to the alleged disability onset date, Castagna received
surgery for an unrelated medial meniscus tear in his left knee by Dr. Jeffrey Yormak, an orthopedic
surgeon at Northern Westchester Hospital. (R. 584-85.) After the operation, Castagna stated that
he was doing well, although running caused him to experience "significant [left knee] pain the
following day." (R. 559.)
Following his on-the-job accident on October 17, 2010, Castagna was admitted to
The record contains documents submitted after ALJ Gonzalez rendered his most recent
decision. Although new and material evidence may be submitted to the Appeals Council
subsequent to an ALJ decision, such evidence must "relate to the period on or before the
date of the administrative law judge hearing decision." 20 C.F.R. § 404.970(c); see also,
e.g., Cahill v. Colvin, 12 Civ. 9445, 2014 WL 7392895 at *31 (S.D.N.Y. Dec. 29, 2014).
The Court therefore does not address the examination reports supplied by Castagna dated
after December 11, 2014. (R. 8-14, 15-19, 21-26, 27-29, 30-36, 37-41, 42-46, 47-50, 51-55,
56-61, 62-65, 66-68.)
Westchester Medical Center for treatment, and diagnosed with a "back strain" and a "hip contusion"
as a result of being struck by a vehicle. (R. 802.) Two days later, on October 19, Castagna visited
Dr. Yormak complaining of "severe low back pain" extending into his left thigh, left knee, spine,
neck, and trapezials, as well as "occasional tingling to his right neck, shoulder, and arm into his right
pinky, ring, and middle fingers." (R. 549.) Dr. Yormak observed that Castagna appeared to be in
"severe distress" getting onto the examining table, and moved his lumbar spine with "significant
rigidity and stiffness." (R. 550.) Dr. Yormak noted mild bruising on the right hip and "spasm and
tenderness" in the musculature on the right and left sides of his neck, concluding that Castagna likely
had suffered a "cervical/lumbar severe strain," and "possible lumbar disc bulge, herniation or occult
injury." (R. 550-51.) Dr. Yormak offered to prescribe either opioids or benzodiazepines for pain
management, but Castagna refused such medications, and Dr. Yormak prescribed Medrol2/ and
Skelaxin3/ instead. (R. 551.)
Castagna returned to Dr. Yormak on November 4, 2010, complaining of the same
issues with pain and weakness; he claimed that the prescribed medications had been largely
ineffective and that his symptoms had continued to keep him out of work. (R. 547.) Dr. Yormak
observed that Castagna had stiffness while moving around, "extreme caution with moving his head,"
and "reluctance to utilize his right shoulder." (Id.) The examination also showed that Castagna's
lumbar range of motion was "somewhat restricted" and flexion, extension, and bending resulted in
discomfort. (Id.) Dr. Yormak noted that CT and MRI scans revealed no spinal fracture, normal
Medrol is a glucocorticoid/adrenocortical steroid used to treat inflammation.
See http://www.rxlist.com/medrol-drug.htm (last visited 7/20/2017).
Skelaxin (generic name Metaxalone) is a muscle relaxant used to relieve pain.
See http://www.rxlist.com/skelaxin-drug.htm (last visited 7/20/2017).
alignment, and no acute disc herniations, as well as no definitive evidence of fracture or tear of the
right shoulder. (R. 547-48.) Dr. Yormak instructed Castagna to attend physical therapy. (R. 548.)
Dr. Richard Weinstein
Throughout the relevant time period, Castagna was seen by orthopedic surgeon Dr.
Richard Weinstein at Bone & Joint Associates in White Plains. Castagna first saw Dr. Weinstein
on November 11, 2010. (R. 680.) Dr. Weinstein noted reduced cervical and thoracolumbar spinal
range of motion, as well as decreased left knee range of motion. (Id.) Upon examining Castagna,
Dr. Weinstein noted no sensory or motor deficits in either his upper or lower extremities. (Id.)
Castagna was advised to attend physical therapy for his neck, lower back, left knee, and right hip
pain and tenderness. (Id.)
Castagna next saw Dr. Weinstein on January 3, 2011, reporting pain in similar sites
(R. 679.) Dr. Weinstein noted that the affected knee had swelling, "especially posteriorly." (Id.)
An MRI of the left knee indicated a grade 3 posterior tear of the medial meniscus, a grade 2 signal
within the lateral meniscus, joint effusion, and proximal patella tendinosis. (R. 670-71.) A bilateral
straight leg raise test was negative. (R. 677.)4/ A January 2011 MRI of Castagna's right hip was
normal. (R. 672.) A March 2011 MRI of Castagna's cervical spine showed a central disc protrusion
between the C5 and C6 vertebrae, and some osteophyte formation. (R. 597, 673.) A June 2011 MRI
of Castagna's right shoulder showed mild acromioclavicular arthropathy, mild subacromial
subdeltoid bursitis, and a probable SLAP tear (a tear of the labrum). (R. 702.)
In light of these MRI results and "[m]inimal improvement despite stretching and
strengthening" exercises along with chiropractic treatment, Dr. Weinstein opined in both April 2011
A straight leg raise test checks for signs of herniation in the lumbar discs.
See http://www.physio-pedia.com/Straight_Leg_Raise_Test (last visited 7/20/2017).
and July 2011 that Castagna was unable to work at that time, could not sit for long periods of time
or do significant lifting, and that he could not do light duty at his present job due to the risk of
injury. (R. 597, 666.)
Dr. Weinstein saw Castagna again on January 13, 2012, noting that there continued
to be slightly decreased range of motion in Castagna's right shoulder and left knee, as well as
tenderness in the lateral retinaculum of the left knee. (R. 708.) Castagna had continued pain in his
left knee, as well as continued pain in the right shoulder, particularly with overhead activities and
lifting. (Id.) At June, September, October and November 2012 follow up visits (R. 866, 887, 891,
899), Dr. Weinstein reiterated that Castagna was not capable of working at the time, and that he
could not do any significant lifting with his right arm, use stairs well, or run on his left knee (R.
887). In June 2012, Dr. Weinstein also noted that Castagna would benefit from continuing his
exercise program at the gym for improving range of motion and strengthening the affected areas,
so long as he avoids "excessive" weight lifting overhead. (R. 866.) In November 2012, Dr.
Weinstein stated that Castagna had "[m]ild discomfort and limitation with internal and external
rotation" of the right shoulder, and that he could not do "any significant lifting or overhead use" of
the right arm. (R. 899.)
On January 24, 2013, Dr. Weinstein performed surgery on Castagna's right shoulder,
which included extensive debridement, arthroscopic subacromial decompression, and injection. (R.
995.) At follow up visits on March 13, 2013 and June 12, 2013, Dr. Weinstein noted that the
surgery had improved Castagna's range of motion in his shoulder and had helped with his pain, but
that Castagna still experienced some weakness and pain in his neck and right arm. (R. 910, 919.)
Castagna reported that physical therapy had improved his symptoms and Dr. Weinstein advised him
to continue with the physical therapy. (Id.)
On October 1, 2013, Dr. Weinstein completed a medical source statement of ability
to do work-related activities for the SSA. (R. 951-56.) Dr. Weinstein stated that Castagna could
frequently lift and carry up to 20 pounds and occasionally lift and carry up to 100 pounds. (R. 951.)
Further, Dr. Weinstein stated that in an eight hour work day, Castagna could sit for one hour at a
time (four hours total), stand for two hours at a time (four hours total), and walk for one hour at a
time (two hours total). (R. 952.) Dr. Weinstein concluded that Castagna could only occasionally
reach with his right arm, but could continuously handle, finger, feel, push or pull with both arms.
(R. 953.) Dr. Weinstein advised that Castagna could never kneel, crouch or crawl, and only
occasionally was able to stoop or climb stairs and ladders. (R. 954.) Dr. Weinstein identified no
limitations on exposure to unprotected heights or to moving mechanical parts or operating a motor
vehicle (R. 955), nor any limitations on daily life activities such as shopping, caring for personal
hygiene, sorting or handling paper and files, or traveling without the help of a companion (R. 956).
Finally, Dr. Weinstein stated that the above limitations have lasted, or will continue to last, for
twelve consecutive months. (Id.)
Castagna next saw Dr. Weinstein on October 29, 2013. (R. 970-71.) Dr. Weinstein
reported that Castagna's right shoulder strength was improving but that he still needed to avoid using
the right arm, especially overhead, and must limit use of the left knee and avoid prolonged sitting
or squatting. (Id.) Dr. Weinstein made similar observations on March 3, 2014. (R. 1038-39.) On
April 1, 2014, Dr. Weinstein stated that Castagna's shoulder may require surgery in the future, but
that he was still improving with physical therapy. (R. 1042-43.)
Castagna had a MRI of his left shoulder on May 22, 2014, after complaining of
clicking, pain and locking in that shoulder.
(R. 1050, 1052.)
The results showed mild
acromioclavicular arthropathy, a small glenohumeral joint effusion, a probable SLAP tear, and a tear
of the inferior labrum with adjacent paralabral cysts. (R. 1050.) Dr. Weinstein noted that the left
shoulder injury was "causally related to the right shoulder injury and right shoulder surgery," but
that it was "secondary to [the] right shoulder problem." (R. 1053.) Dr. Weinstein scheduled
Castagna for left shoulder surgery. (Id.) In November 2014, Dr. Weinstein again opined that
Castagna required left shoulder surgery for subacronial decompression and labral repair on his left
shoulder; this procedure was not performed during the relevant time period. (R. 1133.) Finally, Dr.
Weinstein concluded that as a result of the injuries to Castagna's knee and both of his shoulders,
Castagna was not able to return to work as a police officer. (Id.)
Castagna's last appointment with Dr. Weinstein during the relevant period occurred
on December 8, 2014. (R. 1145-46.) Dr. Weinstein noted that Castagna had continued pain, quite
sharp at times, especially in the left knee, and clicking and locking in his left shoulder. (R. 1145.)
Dr. Weinstein again recommended surgery for Castagna's left shoulder, and concluded that the
injury and symptoms in Castagna's left shoulder were causally related to his right shoulder injury
as a result of overcompensating for an inability to use the right shoulder and arm normally. (R.
Dr. Syed Rahman
Dr. Syed Rahman, a physiatrist of back, neck and diagnostic medicine with Bone
& Joint Associates LLP, saw Castagna on January 5, 2012, on referral from Dr. Weinstein. (R. 70405.) Dr. Rahman noted that Castagna had been attending physical therapy for three months, which
had been helping, but that he still was having "significant tightness pain" in his neck and occasional
numbness in his right hand. (R. 704.) Dr. Rahman suggested Flexiril,5/ ibuprofen, a back brace for
comfort and stability, home exercises for strength, and a trial of trigger point injections. (R. 705.)
Castagna elected to have the trigger point injection, which Dr. Rahman performed on June 14,
2012.6/ (R. 865.) Castagna returned to Dr. Rahman on July 31, 2012 complaining of returning pain
in the neck and back, and that the trigger point injection had helped at first but was losing its
effectiveness. (R. 867.) Dr. Rahman opined that Castagna's pain emanated from cervical and
lumbar strains. (Id.) At the July 31, 2012 visit, Dr. Rahman performed another trigger point
injection to the right shoulder. (R. 869.)
Castagna saw Dr. Rahman again in June, July and August 2013. (R. 923-29.) Dr.
Rahman noted that Castagna reported the trigger point injections as having "definitely helped" and
that, while still stiff, his back pain was "tolerable." (R. 924.) Dr. Rahman noted that prolonged
standing and bending is "somewhat painful" for Castagna. (R. 928.) Dr. Rahman's suggestions
included physical therapy, moist heat, anti-inflammatories, and small doses of muscle relaxants. (R.
929.) In December 2013, Castagna went back to Dr. Rahman for a follow-up after a cervical facet
block. (R. 990-91.)7/ Castagna reported that he was feeling "more than 50% better" after the
procedure and was "[a]ble to move his neck [a] lot better." (R. 990.) Dr. Rahman concluded, in
See http://www.rxlist.com/flexeril-drug.htm (last visited 7/20/2017).
The trigger point injections involved identifying four tender points on the shoulder and
injecting them with a combination of Depo Medrol and marcaine. (R. 865.) Depo Medrol
is a steroidal anti-inflammatory used to treat pain and swelling.
See http://www.rxlist.com/depo-medrol-drug.htm (last visited 7/20/2017). Marcaine is an
anesthetic. See http://www.rxlist.com/marcaine-drug.htm (last visited 7/20/2017).
A cervical facet block is an injection of steroid medication into small joints in the cervical
spine, with the intention of providing pain relief.
nt-injections (last visited 7/20/2017.)
December 2013 and again in March 2014, that Castagna suffers from a partial permanent disability
precluding him from returning to work as a police officer. (R. 991, 1040-41.)
Dr. Sathish Modugu
Dr. Sathish Modugu, a pain management specialist of the Sports Spine & Treatment
Center of Westchester, treated Castagna between November 2010 and April 2011. (R. 611.) Dr.
Modugu referred Castagna for a cervical spine MRI on March 15, 2011, which revealed
straightening of the normal lordosis, a mild circumferential disc bulge between the C3 and C4
vertebrae flattening the thecal sac and mild right foraminal narrowing, a disc protrusion with
osteophyte between the C4 and C5 vertebrae causing moderate left neural foraminal narrowing, and
a central disc protrusion between the C5 and C6 vertebrae mildly indenting the anterior aspect of
the spinal cord. (R. 625.) On April 28, 2011, Dr. Modugu opined that Castagna could stand and
walk for up to six hours per day, and sit for up to eight hours per day. (R. 614.) Dr. Modugu noted
no limitations on pushing or pulling, and opined that Castagna had the ability to frequently carry 20
pounds and occasionally carry 30 pounds. (R. 614-15.) Dr. Modugu stated that it was "[t]oo early"
to express an opinion on Castagna's ability to return to work-related activities. (R. 615.)
Dr. George Burak
Dr. George Burak, an orthopedic surgeon, examined Castagna on March 16, 2011.
(R. 852-55.) Dr. Burak observed that Castagna's range of cervical spine flexion, extension, and
rotation were normal, and that he was able to ambulate with a normal gait. (R. 854.) Dr. Burak
noted a mild paravertebral muscle spasm and decreased range of motion in Castagna's lumbar spine.
(R. 855.) Dr. Burak concluded that Castagna had a "marked partial disability" primarily to his back,
and could return to work in a light duty capacity, but needed to avoid lifting anything above ten
pounds and avoid repetitive bending. (Id.)
Dr. John Mazella
In November 2011, Dr. John Mazella, an orthopedic surgeon, performed a
consultative examination of Castagna. (R. 1002-12.) Dr. Mazella found no deformity of the lumbar
or cervical spine and normal range of motion in both. (R. 1009-10.) Dr. Mazella also found full
range of motion and strength in Castagna's right hip, and that the range of motion in Castagna's left
knee was comparable to that of his right knee. (R. 1010.) Dr. Mazella's impression was that
Castagna had suffered a lumbar and cervical spinal strain or sprain without radiculopathy. (R.
1011.) Dr. Mazella also concluded that Castagna had a "[v]ery mild" right shoulder impingement,
his right hip strain had been resolved, and the outcome of his left knee after the 2009 surgery was
satisfactory. (Id.) Dr. Mazella's opinion was that Castagna was "not permanently disabled" and that
his subjective complaints were not supported by the medical findings. (Id.) Dr. Mazella issued
another report on August 30, 2013 (R. 998-1001), opining that Castagna could return to full
employment-related duties with continued physical therapy (R. 1000).
Dr. Ronald Mann
Dr. Ronald Mann, an orthopedic surgeon, performed an independent medical
examination of Castagna on January 18, 2012. (R. 711-16.) Dr. Mann concluded that Castagna's
cervical spine strain, right shoulder strain, and right hip strain were resolved, and that his lumbar
spine strain was still resolving. (R. 715.) Dr. Mann observed normal range of motion in the hips
and right shoulder, with decreased range of motion in the cervical and lumbar spine. (R. 713-14.)
He found no muscle spasm or atrophy in either the cervical or lumbar spine. (Id.) Dr. Mann
recommended nonsteroidal anti-inflammatories as treatment but did not believe that Castagna's
injuries required physical therapy. (R. 715.)
Dr. Mann examined Castagna again in September 2012. (R. 876-81.) He made
similar findings but noted that Castagna had slightly decreased range of motion in his right hip and
right shoulder. (R. 879.) In Dr. Mann's opinion, Castagna had a moderate disability, but was
capable of working so long as restrictions were placed on prolonged walking, prolonged standing,
prolonged sitting, repetitive use of right arm, grabbing, and no heavy lifting over 40 pounds. (Id.)
Although Dr. Mann believed that Castagna's condition warranted further treatment, he still did not
believe that Castagna's injuries showed a need for physical therapy. (Id.)
Dr. Amy Weiss-Citrome
Dr. Amy Weiss-Citrome, a specialist in physical medicine and rehabilitation and a
New York State certified acupuncturist, conducted an independent examination of Castagna on
August 7, 2013. (R. 930-35.) Dr. Weiss-Citrome noted that Castagna had normal cervical spinal
range of motion but that Castagna complained of back pain during range of motion testing. (R. 933.)
She also observed moderate tenderness and moderate muscle spasm on palpation of the cervical
paraspinal musculature. (Id.) Further, she noted decreased range of motion in the thoracolumbar
spine, and moderate tenderness and severe muscle spasm on the musculature. (R. 934.) Dr. WeissCitrome's conclusion was that Castagna had a marked partial disability with the ability to work in
a sedentary job with no lifting over ten pounds and no overhead work with the right arm. (R. 935.)
She noted that his prognosis for further recovery was poor. (Id.)
Dr. Michael McKeown
Dr. Michael McKeown, a chiropractic specialist, treated Castagna two times a week
between November 2010 and May 2011. (R. 618.) His clinical diagnoses were a sprain/strain of
the lumbar and cervical spine, lumbar radiculopathy, and lumbar disc degeneration. (Id.) Dr.
McKeown instructed, in his May 2011 assessment of Castagna's limitations on use of his upper
extremities: "Do not pull anything!" (R. 620.) Dr. McKeown's report did not list any other
functional limitations related to Castagna's injuries.
Dr. Shariar Sotudeh
Castagna was consultatively examined by Dr. Shariar Sotudeh, an orthopedic
surgeon, on September 4, 2013. (R. 938-40.) Dr. Sotudeh concluded that there was functional
impairment to Castagna's right shoulder, right hip and left knee. (R. 939.) Dr. Sotudeh concluded
that Castagna was limited from "prolonged bending, squatting, standing, or walking," repetitive
reaching above shoulder level, any pushing or pulling, and heavy lifting or carrying over 30 pounds.
(Id.) Dr. Sotudeh did not note any restrictions on sitting. (Id.)
Dr. Robert Michaels
Dr. Robert Michaels, an orthopedic surgeon, conducted independent orthopedic
examinations of Castagna on August 11, 2014 and September 15, 2014. (R. 1098-100.) Castagna
reported that his pain levels on the Visual Analog Pain Scale were "3/10 to the neck, 5/10 to the
back, 3/10 to the right shoulder, 3/10 to the right hip, 2/10 to the left knee and 3/10 to the left
shoulder." (R. 1098.) Dr. Michaels noted that Castagna reported taking Tramadol8/ for pain relief.
(R. 1099.) Dr. Michaels' examinations of Castagna's shoulders revealed tenderness with no
swelling, ecchymosis or erythema, and no rotator cuff weakness in either shoulder. (Id.)
Dr. Michaels filed an addendum to this report on November 21, 2014, after reviewing
the left shoulder MRI findings. (R. 1139-42.) Dr. Michaels concluded that the "tears" indicated by
the MRI were consequential and likely due to normal degenerative changes. (R. 1141.) He
concluded that it would be "reasonable and appropriate" to order a new left knee MRI, since the last
one had taken place three years prior. (R. 1142.)
Tramadol is an opioid used to treat pain. See http://www.rxlist.com/ultram-drug.htm (last
Dr. Bradley Wiener
Castagna saw Dr. Bradley Wiener, an orthopedic surgeon, on September 12, 2014
for a second opinion in evaluation of his symptoms. (R. 1120-22.) Dr. Wiener noted discomfort
on palpation of Castagna's right shoulder, and restriction of internal rotation and abduction of the
left shoulder. (R. 1120.) Dr. Wiener observed tenderness on palpation along the medial joint line
of the left knee, but no sign of swelling or effusion. (R. 1120-21.) Dr. Wiener recommended that
Castagna undergo another surgery on his left knee, and also suggested that a surgical procedure on
the left shoulder might be a good idea. (R. 1121.) Dr. Wiener's ultimate conclusion was that, while
he did not believe additional orthopedic treatment would allow Castagna to return to full duty work
activities as a police officer, Castagna could perform sedentary work activities. (Id.)
Castagna received psychiatric and psychological treatment from various specialists
for post-traumatic stress disorder ("PTSD"), anxiety and depression following the on-duty
altercation that led to his alleged disability. Dr. Norman Weiss, who began treating Castagna in
October 2010, prepared a psychiatric report in July 2011, opining that Castagna's feelings of
"depression, poor sleep, social isolation and a feeling of humiliation, derive . . . from the treatment
[Castagna] describes as having received from his police department" related to the incident that
caused Castagna's injury. (R. 684; see page 2 above.)
On June 27, 2011, Dr. Fredelyn Engelberg Damari, a psychologist, conducted a
consultative psychiatric examination of Castagna. (R. 632-36.) Dr. Damari noted that Castagna's
medications included Metaxalone, Pantoprazole,9/ Zolpidem tartrate,10/ bupropion,11/ and
paroxetine.12/ (R. 632.) Dr. Damari observed Castagna's mood as being "[d]ysthymic," and his
affect "[d]ysphoric and anxious," but that his "manner of relating, social skills, and overall
presentation" were adequate, and that he was "[c]oherent and goal directed." (R. 633.) Dr. Damari
further concluded that Castagna's attention, concentration, memory skills, cognitive functioning,
insight and judgment were all intact and appropriate. (R. 634.) Dr. Damari diagnosed Castagna
with "[p]osttraumatic stress disorder, chronic," but concluded that his prognosis for recovery was
good if he continued to receive psychiatric treatment. (R. 635.) Nevertheless, Castagna's "stressrelated problems . . . may significantly interfere with [his] ability to function on a daily basis." (Id.)
Dr. Solomon Miskin conducted an independent psychiatric examination of Castagna
on January 31, 2012, and diagnosed him with severe, chronic PTSD and moderate, chronic major
depressive disorder. (R. 722-24.) He opined that Castagna was permanently disabled and could not
go back to his job as a police officer. (R. 724.)
Dr. Alain De La Chappelle conducted an independent medical examination of
Castagna on March 4, 2011, diagnosed him with PTSD, and concluded that Castagna would be able
to return to work "on a part-time basis with light duties to minimize stress." (R. 838-39.) Castagna
also was seen by Dr. Ronald Kaitz on June 16 and June 28, 2011. (R. 845-47.) Dr. Kaitz found
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Castagna to be "anxious, depressed, and frustrated," and found that "[h]is insight and judgement are
impaired." (R. 846.) Dr. Kaitz opined that Castagna is "chronically and persistently disabled." (R.
Medical consultant A. Herrick prepared a report on July 5, 2011 evaluating
Castagna's residual functional capacity with respect to work-related activities considering his mental
health limitations. (R. 657-59.) The report noted that Castagna had reported, in his consultation
with Dr. Damari, "distressing recollections . . . problems with sleep . . . [and symptoms] of
depression and anxiety," and that his affect was "dysphoric and anxious." (R. 659.) Herrick
diagnosed chronic PTSD. (Id.) The medical consultant opined that, while Castagna could no longer
work as a police officer, he had sufficient mental capacity (including the ability to remember,
concentrate, and interact with others) to perform other general work-related tasks. (Id.)
ALJ Gonzalez's 2014 Decision13/
On December 11, 2014, ALJ Gonzalez denied Castagna's application for benefits.
(R. 71-97.) ALJ Gonzalez applied the appropriate five step legal analysis. (R. 75-76.) First, he
found that Castagna "has not engaged in substantial gainful activity since October 17, 2010, the
alleged onset date." (R. 77.) Second, ALJ Gonzalez found that Castagna had the "following severe
impairments: left knee medial meniscus tear, right shoulder impingement and SLAP tear, right bicep
The Appeals Council remanded ALJ Gonzalez's August 13, 2012 decision for two reasons.
(R. 254.) First, ALJ Gonzalez incorrectly stated in his opinion that Dr. Burak's report
limited Castagna to lifting and carrying a maximum of twenty pounds (the correct amount
being ten pounds), meaning that the assessment was more limiting than ALJ Gonzalez gave
it credit for. (See R. 855.) Furthermore, the Appeals Council noted that new and material
evidence had been submitted after ALJ Gonzalez's decision in support of the request for
review, including an opinion from Dr. Weinstein stating that Castagna was not capable of
work at the time, could not perform overhead activities or do significant lifting with his right
arm, as well as that Castagna recently had shoulder surgery. (R. 254, 708, 887, 995.)
tendonitis, left shoulder impingement and labrum tear, cervical spine herniation, lumbar spine
bulging discs, mild bilateral carpal tunnel syndrome, post-traumatic stress disorder, generalized
anxiety disorder, and major depressive disorder." (Id.)
Third, ALJ Gonzalez found that Castagna did "not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 77.) In doing so, ALJ Gonzalez
compared Castagna's ailments to the relevant CFR listings. (R. 77-79.) ALJ Gonzalez first
addressed Castagna's bilateral carpal tunnel syndrome, left knee impairment, and bilateral shoulder
impairments, finding no evidence that these conditions met the criteria of "major dysfunction of a
joint that involves at least one major peripheral weight-bearing joint, resulting in an inability to
ambulate effectively; or major dysfunction of a joint that involves at least one major peripheral joint
in each upper extremity, resulting in an inability to perform fine and gross movements effectively,"
as required by Listing 1.02. (R. 77-79.) Further, ALJ Gonzalez found that Castagna does not "suffer
from an inability to ambulate effectively," as required to meet or medically equal Listing 1.03. (R.
ALJ Gonzalez next turned to Castagna's spinal condition, and determined whether
it met the criteria of listing 1.04, requiring:
[E]vidence of a spinal disorder that results in compromise of a nerve root or the
spinal cord with: nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive straight-leg raising test
(sitting and supine); spinal arachnoiditis, confirmed by an operative note or
pathology report of the tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every two hours; or lumbar spinal
stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic non-radicular pain and
weakness, and resulting in an inability to ambulate effectively.
(R. 78.) Because ALJ Gonzalez found that the record did not support a finding of nerve root
compression or arachnoiditis and the evidence showed that Castagna could ambulate effectively,
ALJ Gonzalez found this listing not satisfied. (Id.)
ALJ Gonzalez next determined whether any of Castagna's mental health impairments
were equivalent to listings 12.04 or 12.06 by considering both "paragraph B" and "paragraph C"
criteria from these listings. (R. 78-79.) "Paragraph B" criteria require satisfying at "least two of the
following: marked restriction of activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration." (R. 78.) ALJ Gonzalez found that
Castagna's difficulties in these areas only were mild or moderate.14/ (R. 79.) "Paragraph C" criteria
require that the "claimant suffers from repeated episodes of decompensation, that any marginal
adjustment or minimal increase in mental demands or change in the environment would cause
decompensation, or a current history of one or more years' inability to function outside a highly
supportive living arrangement," or that the claimant is "completely unable to function independently
outside the area of his home." (R. 79.) Finding no evidence that Castagna experienced any episodes
of decompensation or is unable to function independently outside of his home, ALJ Gonzalez found
neither listing 12.04 or 12.06 satisfied. (R. 79.)
Before proceeding to the next step of the analysis, ALJ Gonzalez evaluated and
determined Castagna's level of residual functional capacity ("RFC"), defined as his "ability to do
physical and mental work activities on a sustained basis despite limitations from his impairments."
"Marked" difficulties are defined as "more than moderate but less than extreme." (R. 78.)
(R. 76.) In evaluating the RFC, an ALJ must consider "all of the claimant's impairments, including
impairments that are not severe." (Id.) ALJ Gonzalez determined that Castagna had the RFC to
perform the full range of sedentary work as defined in 20 CFR 404.1567(a), except
that he can frequently feel with the right upper extremity; occasionally reach
overhead with the dominant right upper extremity; frequently reach overhead with
the left upper extremity; occasionally crouch; frequently flex, extend, and rotate his
neck; occasionally interact with supervisors, co-workers, and the public; and can
frequently handle and finger with the bilateral upper extremities; must avoid working
at unprotected heights; and must avoid police work.
(R. 80.) In making this finding, ALJ Gonzalez first evaluated "whether there is an underlying
medically determinable physical or mental impairment(s)–i.e., an impairment(s) that can be shown
by medically acceptable clinical and laboratory diagnostic techniques–that could reasonably be
expected to produce the claimant's pain or other symptoms." (Id.) ALJ Gonzalez found that
Castagna's medically determined impairments, including "post-traumatic stress disorder (PTSD),
a neck condition, injuries in both shoulders, a left knee condition, a lower back injury, and
depression," could reasonably be expected to cause the type of symptoms that Castagna was
Next, ALJ Gonzalez evaluated the "intensity, persistence, and limiting effects of
[Castagna's] symptoms to determine the extent to which they limit [his] functioning," making an
analysis of the "credibility of the statements based on a consideration of the entire case record."
(Id.) He found that Castagna's statements concerning the intensity, persistence, and limiting effects
of his symptoms were not entirely credible. (Id.) Considering the medical and non-medical
evidence and testimony, ALJ Gonzalez did not find persuasive evidence that Castagna's injuries
restricted his daily activities as much as he claimed. (R. 94.) Giving weight to the fact that
Castagna has received only routine, conservative treatment for his impairments, only sporadically
used anti-inflammatories and/or Celebrex with mild side-effects that would not prevent Castagna
from engaging in the above RFC, and is capable of lifting overhead occasionally and lifting light
weights with his right arm, ALJ Gonzalez concluded that Castagna's complaints of his symptoms
were not fully credible. (R. 94-95.) He further opined that Castagna's stated limitations would be
fully accommodated in the workplace if he were limited to sedentary work where he only would
occasionally lift a maximum of ten pounds. (Id.)
At the fourth step, ALJ Gonzalez concluded that Castagna would not be able to
perform his past relevant work as either a police officer or a carpenter based on the vocational
expert's testimony and medical expert opinions. (R. 95-96.)
At the fifth and final step, ALJ Gonzalez considered whether there was evidence that
"other work exists in significant numbers in the national economy that the claimant can do, given
the residual functional capacity, age, education, and work experience." (R. 76.) Based on the
vocational expert's testimony, ALJ Gonzalez determined that Castagna could perform the
occupations of document preparer, addresser, touch-up screener, and amtoule sealer. (R. 96-97.)
Because these jobs exist in significant numbers in the national economy, ALJ Gonzalez concluded
that Castagna is capable of fulfilling the requirements of substantial gainful employment. (R. 97.)
ALJ Gonzalez concluded that Castagna was not under a disability, as defined by the
Social Security Act, during the relevant time period from October 17, 2010 to December 11, 2014.
THE APPLICABLE LAW
Definition Of Disability
A person is considered disabled for Social Security benefits purposes when he is
unable "to engage in any substantial gainful activity by 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 12 months." 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).15/
An individual shall be determined to be under a disability only if [the combined
effects of] his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S. Ct.
at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.16/
In determining whether an individual is disabled for disability benefit purposes, 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
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.
others; and (4) the claimant's educational background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).17/
Standard Of Review
A court's review of the Commissioner's final decision is limited to determining
whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).18/ "'Thus,
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).19/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g.,
See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.
See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).
See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should not substitute its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review."
(quotations & alterations omitted)).
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74.20/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).21/
The Court, however, will not defer to the Commissioner's determination if it is "'the
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further.  At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
gainful activity."  At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities."  At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies.  If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled.  If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).22/
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.23/
The Treating Physician Rule
The "treating physician's rule" is a series of regulations set forth by the Commissioner
in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician's opinion.
Specifically, the Commissioner's regulations provide that:
Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.
If we find that a treating source's medical opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2); see, e.g., Rugless v. Comm'r of Soc. Sec., 548 F. App'x 698, 699-700
(2d Cir. 2013); Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010); Colling v. Barnhart, 254
F. App'x 87, 89 (2d Cir. 2007); Lamorey v. Barnhart, 158 F. App'x 361, 362 (2d Cir. 2006).
Further, the regulations specify that when controlling weight is not given a treating
physician's opinion (because it is not well-supported by other medical evidence), the ALJ must
consider the following factors in determining the weight to be given such an opinion: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the evidence that supports the treating physician's report; (4) how
consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the
physician in contrast to the condition being treated; and (6) any other factors which may be
significant. 20 C.F.R. § 404.1527(c)(2)-(6); see, e.g., Cichocki v. Astrue, 534 F. App'x 71, 74 (2d
Cir. 2013); Gunter v. Comm'r of Soc. Sec., 361 F. App'x 197, 197 (2d Cir. 2010).24/
When a treating physician provides a favorable report, the claimant "is entitled to an
express recognition from the [ALJ or] Appeals Council of the existence of [the treating physician's]
favorable . . . report and, if the [ALJ or] Council does not credit the findings of that report, to an
explanation of why it does not." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); see, e.g.,
Cichocki v. Astrue, 534 F. App'x at 75; Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (ALJ's
See also, e.g., Foxman v. Barnhart, 157 F. App'x 344, 346-47 (2d Cir. 2005); Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000);
Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).
failure to consider favorable treating physician evidence ordinarily requires remand pursuant to
Snell but does not require remand where the report was "essentially duplicative of evidence
considered by the ALJ"); Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do
not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do
believe that the crucial factors in any determination must be set forth with sufficient specificity to
enable [reviewing courts] to decide whether the determination is supported by substantial evidence."
(citations omitted)); Ramos v. Barnhart, 02 Civ. 3127, 2003 WL 21032012 at *7, *9 (S.D.N.Y. May
6, 2003) (The ALJ's "'failure to mention such [treating physician report] evidence and set forth the
reasons for his conclusions with sufficient specificity hinders [this Court's] ability . . . to decide
whether his determination is supported by substantial evidence.'").
The Commissioner's "treating physician" regulations were approved by the Second
Circuit in Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993).25/
APPLICATION OF THE FIVE STEP SEQUENCE
Castagna Was Not Engaged In Substantial Gainful Activity
The first inquiry is whether Castagna was engaged in substantial gainful activity since
October 17, 2010, the alleged disability onset date. "Substantial gainful activity" is defined as work
that involves "doing significant and productive physical or mental duties" and "[i]s done (or
intended) for pay or profit." 20 C.F.R. § 404.1510. ALJ Gonzalez's conclusion that Castagna did
not engage in substantial gainful activity during the applicable time period (see page 17 above) is
not disputed and benefits Castagna. (See generally Dkt. No. 21: Comm'r Br.) The Court therefore
Although not relevant here, the Court notes that the regulations governing the "treating
physician rule" recently changed as to claims filed on or after March 27, 2017. See 20
C.F.R. §§ 404.1527, 404.1520c; Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 FR 5844-01, 2017 WL 168819 at *5844, *5867-68 (Jan. 18, 2017).
proceeds with the analysis.
Castagna Demonstrated "Severe" Impairments That Significantly Limited
His Ability To Do Basic Work Activities
The second step of the analysis is to determine whether Castagna suffered from a
"severe" impairment, or combination of impairments that "significantly limit[ed his] physical or
mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). The ability to do basic work
activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §
404.1522(b). "Basic work activities" include:
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling
. . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and
remembering simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations . . . [d]ealing with
changes in a routine work setting.
20 C.F.R. § 404.1522(b)(1)-(6).
ALJ Gonzalez determined that Castagna's severe impairments were a left knee medial
meniscus tear, right shoulder impingement and SLAP tear, right bicep tendonitis, left shoulder
impingement and labrum tear, cervical spine herniation, lumbar spine bulging discs, mild bilateral
carpal tunnel syndrome, post-traumatic stress disorder, generalized anxiety disorder, and major
depressive disorder. (See pages 17-18 above.) ALJ Gonzalez's findings regarding the step-two
severity of these impairments benefit Castagna, and Castagna does not contest those findings. (See
generally Dkt. No. 19: Castagna Br.) Accordingly, the Court proceeds to the third step of the
Castagna Did Not Have A Disability Listed In Appendix 1 Of The Regulations
The third step of the five-step test requires a determination of whether Castagna had
an impairment listed in Appendix 1 of the Regulations. 20 C.F.R. Pt. 404, Subpt. P, App. 1. "These
are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude
gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is
conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019,
1022 (2d Cir. 1995).
ALJ Gonzalez found that notwithstanding Castagna's severe impairments, he "does
not have an impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526)." (R. 77.) ALJ Gonzalez compared the medical evidence in the record to
the criteria in listings 1.02 (major joint dysfunction), 1.03 (inability to ambulate effectively), 1.04
(spinal disorder), and 12.04 and 12.06 (mental impairments); he found that Castagna did not meet
the necessary criteria for any of these listings. (See pages 18-19 above.) Because ALJ Gonzalez's
finding that Castagna's impairments do not meet or medically equal the listed conditions is not
disputed by the parties (see generally Dkt. No. 19: Castagna Br.; Dkt. No. 21: Comm'r Br.), the
Court proceeds with the five-step analysis.
ALJ Gonzalez's Credibility and RFC Determinations
Before proceeding to step four, the Court will address ALJ Gonzalez's credibility and
residual functional capacity ("RFC") determinations.
Because subjective symptoms only lessen a claimant's RFC where the symptoms
"'can reasonably be accepted as consistent with the objective medical evidence and other evidence,'
the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent
with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL
3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see, e.g., Campbell v. Astrue,
465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALJ's credibility determination, while an ALJ 'is
required to take the claimant's reports of pain and other limitations into account,' he or she is 'not
require[d] to accept the claimant's subjective complaints without question.' Rather, the ALJ 'may
exercise discretion in weighing the credibility of the claimant's testimony in light of the other
evidence in the record.'" (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and
other limitations into account, but is not required to accept the claimant's subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant's testimony
in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310
F. App'x 450, 451 (2d Cir. 2009) ("'Where there is conflicting evidence about a claimant's pain, the
ALJ must make credibility findings.'").26/ In addition, "courts must show special deference to an
ALJ's credibility determinations because the ALJ had the opportunity to observe plaintiff's demeanor
while [the plaintiff was] testifying." Marquez v. Colvin, 12 Civ. 6819, 2013 WL 5568718 at *7
See also, e.g., Rivers v. Astrue, 280 F. App'x 20, 22 (2d Cir. 2008) (same); Thompson v.
Barnhart, 75 F. App'x 842, 845 (2d Cir. 2003) (ALJ properly found that plaintiff's
"description of her symptoms was at odds with her treatment history, her medication regime,
and her daily routine"); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999); Norman v. Astrue,
912 F. Supp. 2d 33, 85 (S.D.N.Y. 2012) ("It is 'within the discretion of the [Commissioner]
to evaluate the credibility of plaintiff's complaints and render an independent judgment in
light of the medical findings and other evidence regarding the true extent of such
symptomatology.'"); Astolos v. Astrue, No. 06-CV-678, 2009 WL 3333234 at *12
(W.D.N.Y. Oct. 14, 2009) (ALJ properly determined that plaintiff's subjective pain
complaints were not supported by the medical record); Speruggia v. Astrue, No. 05-CV3532, 2008 WL 818004 at *11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ 'does not have to accept
plaintiff's subjective testimony about her symptoms without question' and should determine
a plaintiff's credibility 'in light of all the evidence.'"); Soto v. Barnhart, 01 Civ. 7905, 2002
WL 31729500 at *6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has the capacity and the discretion
to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of
medical findings and other evidence, regarding the true extent of pain alleged by the
claimant."); Brandon v. Bowen, 666 F. Supp. 604, 608 (S.D.N.Y. 1987) (same).
(S.D.N.Y. Oct. 9, 2013).27/
When an ALJ determines that a claimant's own statements regarding his or her
symptoms are not supported by the record, that "decision must contain specific reasons for the
weight given to the individual's symptoms, be consistent with and supported by the evidence, and
be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator
evaluated the individual's symptoms." SSR 16-3p, 2016 WL 1119029 at *9 (Mar. 16, 2016). The
regulations set out a two-step process for assessing a claimant's statements about pain and other
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. . . . 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. The ALJ must consider statements the claimant or others make about his
impairment(s), his restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes 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.
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted) (citing 20 C.F.R. §§
404.1529(a), 404.1529(b), and the now-superseded SSR 96-7p); see also SSR 16-3p, 2016 WL
1119029 at *2; Burgess v. Colvin, 15 Civ. 9585, 2016 WL 7339925 at *11 (S.D.N.Y. Dec. 19, 2016)
(quoting SSR 16-3p for an explanation of the two-step process for assessing claimants' statements
Accord, e.g., Campbell v. Astrue, 465 F. App'x at 7 ("[W]e have long held that '[i]t is the
function of the [Commissioner], not ourselves, . . . to appraise the credibility of witnesses,
including the claimant."'); Nunez v. Astrue, 11 Civ. 8711, 2013 WL 3753421 at *7
(S.D.N.Y. July 17, 2013); Guzman v. Astrue, 09 Civ. 3928, 2011 WL 666194 at *7
(S.D.N.Y. Feb. 4, 2011); Ruiz v. Barnhart, 03 Civ. 10128, 2006 WL 1273832 at *7
(S.D.N.Y. May 10, 2006); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 & n.6 (S.D.N.Y.
1995); Mejias v. Soc. Sec. Admin., 445 F. Supp. 741, 744 (S.D.N.Y. 1978) (Weinfeld, D.J.);
Wrennick v. Sec'y of Health, Educ. & Welfare, 441 F. Supp. 482, 485 (S.D.N.Y. 1977)
about their symptoms).
In March 2016, the SSA released SSR 16-3p, which provides updated guidance on
evaluating a claimant's claims about the work-preclusive nature of his symptoms. See generally
SSR 16-3p, 2016 WL 1119029; accord, e.g., Duran v. Colvin, 14 Civ. 8677, 2016 WL 5369481 at
*13 n.27 (S.D.N.Y. Sept. 26, 2016) ("SSR 16-3p supersedes SSR 96-7p, 1996 WL 374186 (July 2,
1996), and clarifies the policies set forth in the previous SSR.").
The purpose of [SSR 16-3p] is to provide "guidance about how [to] evaluate
statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims." S.S.R. 16-3P, 2016 WL 1119029, at *1. The Ruling supersedes
. . . S.S.R. 96-7p, which placed a stronger emphasis on the role of the adjudicator to
make a "finding about the credibility of the individual's statements about the
symptom(s) and its functional effects." S.S.R. 96-7P, 1996 WL 374186, at *1. In
contrast, S.S.R. 16-3p espouses a more holistic analysis of the claimant's symptoms,
and "eliminate[s] the use of the term 'credibility'" from sub-regulation policy. S.S.R.
16-3P, 2016 WL 1119029, at *1. The Commissioner notes that the "regulations do
not use this term," and by abandoning it, "clarif[ies] that subjective symptom
evaluation is not an examination of an individual's character." Id.
Acosta v. Colvin, 15 Civ. 4051, 2016 WL 6952338 at *18 (S.D.N.Y. Nov. 28, 2016).
ALJ Gonzalez appropriately applied the two-part test (see pages 20-21 above) and
supported his findings with substantial evidence found in Castagna's treatment records and
testimony regarding his physical impairments. Castagna testified that, as a result of his injury, he
has experienced left knee, right shoulder, right hip, back, and neck pain, and restricted range of
motion and weakness in the right shoulder. (See page 3 above.) Castagna testified that he takes pain
medications on a regular basis to manage this pain. (Id.) Castagna testified that trigger point
injections help his symptoms for approximately a month or two, but do not provide permanent relief.
(Id.) Castagna further alleged that he experiences numbness in his right hand when he extends his
right arm, which gives him difficulty utilizing that hand for things such as grabbing or typing. (Id.)
Finally, Castagna alleges that "[s]itting for a long period of time" causes him to stiffen up if he does
not have a chance to get up and move about. (Id.)
ALJ Gonzalez found that Castagna's "medically determinable impairments could
reasonably be expected to cause the alleged symptoms," but that Castagna's "statements concerning
the intensity, persistence and limiting effects of these symptoms [were] not entirely credible." (R.
80.) After reviewing the relevant medical records (R. 81-94), ALJ Gonzalez gave several reasons
for discounting Castagna's credibility (R. 94-95). ALJ Gonzalez first found that "there is little
evidence in this record that [Castagna's] daily activities have been restricted to the degree [Castagna]
alleges based upon his impairments." (R. 94.) Second, ALJ Gonzalez found that "although
[Castagna] has received treatment for the allegedly disabling impairments, that treatment has been
essentially routine and/or conservative in nature." (Id.) ALJ Gonzalez noted that Castagna has
"mostly undergone physical therapy and taken medications," and that while he did have right
shoulder surgery, the procedure "appears to have reached its intended result." (Id.)
Third, ALJ Gonzalez found that, considering the type, dosage, effectiveness and side
effects of the medication Castagna takes and the fact that he only takes them "sporadically," the
overall effect of his medications on his functioning has been "mild" and "would not prevent [him]
from engaging in the above [RFC]." (Id.) Fourth, ALJ Gonzalez found that, while Castagna
claimed that "strenuous activity" would aggravate his symptoms, the fact that he exercises with 20
pound weights without such aggravation suggests that sedentary work, where he would only lift a
maximum of ten pounds occasionally, would accommodate him. (Id.) Finally, ALJ Gonzalez
acknowledged that although Castagna's counsel's brief argued that a finding of disability is justified,
this conclusion was not consistent with the overall medical evidence, and that it incorrectly
evaluated Castagna's RFC. (R. 95, 513.)
Substantial evidence in Castagna's medical history supports ALJ Gonzalez's
conclusion. Castagna's lumbar spine was negative for radiculopathy (see page 12 above), negative
for straight leg raise test (see page 6 above), and negative for any spinal fracture or acute disc
herniations (see pages 5-6 above). Much of the medical evidence did note that Castagna had slightly
reduced spinal range of motion and some tenderness, resulting from a sprain or strain and a mild disc
bulge, but that such ailments did not entirely preclude him from movements such as bending over
or sitting down. (See pages 6-15 above.)
The medical evidence notes that Castagna's right shoulder also displayed decreased
range of motion, but that the surgical procedure had been largely effective (see pages 7, 13 above)
and that Castagna's shoulder function was continuing to improve with time and strengthening
exercises (see page 7 above). Castagna's shoulder tears were described by Dr. Michaels as being
likely due to normal degenerative changes (see page 14 above), and Castagna reported that his pain
levels were "3/10[.]" (id). Dr. Mazella concluded that Castagna's shoulder impingement was "[v]ery
mild." (See page 12 above.) The primary limitation recommended by physicians concerning
Castagna's shoulder injuries is that he avoid overhead use of his arms and avoid heavy lifting, but
he was not restricted in handling or touching things with his arms based on his injuries. (See page
Medical evidence showed that Castagna's left knee had a grade 3 posterior tear of the
medial meniscus, a grade 2 signal within the lateral meniscus, joint effusion, and proximal patella
tendinosis, though Castagna himself noted that his pain levels in the knee were "2/10[.]" (See page
14 above.) Castagna previously had arthroscopic surgery on that knee in 2009 and had recovered
satisfactorily from the procedure. (See page 4 above.) The diagnosis and decreased range of motion
in his knee were noted by examining physicians to suggest imposing limitations on kneeling,
stooping, and prolonged walking, but did not suggest any limitations on sitting. (See pages 11, 14
Moreover, Dr. Mazella explicitly opined that Castagna's subjective complaints are
not supported by the medical evidence. (See page 12 above.) This corroborates ALJ Gonzalez's
Castagna's own testimony as to his activities of daily living also provides evidence
undermining his statements regarding his physical limitations. He testified that he is able to shop,
cook, and clean for himself, and climb stairs to get into his home. (See page 3 above.) He stated
that he still drives an automobile on a regular basis. (Id.) Finally, Castagna testified that he visits
the gym approximately twice a week and performs weightlifting exercises including military
presses, leg extensions, and leg curls using 20 to 30 pound weights. (See page 3 above.) This
testimony is at odds with Castagna's overarching contentions about the way in which his pain
physically limits his range of motion, and ALJ Gonzalez properly factored Castagna's statements
into his conclusion that the evidence did not support Castagna's alleged limitations, but rather
indicated that he has the capacity to perform "sustained work with adequate restrictions." (R. 95.)
Castagna also testified that he frequently visits his parents to socialize. (See page 3 above.) ALJ
Gonzalez concluded that this fact, taken together with his ability to perform tasks of daily living and
to be cooperative during his examinations and hearings, indicated only mild functional limitations
from his PTSD and depressive disorder. (R. 95.)
Substantial evidence supports ALJ Gonzalez's conclusion that Castagna's subjective
complaints of his physical and mental limitations were not supported by the record evidence.
Residual Functional Capacity Determination
ALJ Gonzalez determined that Castagna had the RFC to
perform the full range of sedentary work as defined in 20 CFR 404.1567(a), except
that he can frequently feel with the right upper extremity; occasionally reach
overhead with the right upper extremity; frequently reach overhead with the left
upper extremity; occasionally crouch; frequently flex, extend, and rotate his neck;
occasionally interact with supervisors, co-workers, and the public; and can frequently
handle and finger with the bilateral upper extremities; must avoid working at
unprotected heights; and must avoid police work.
(See page 20 above.) Sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Substantial evidence from Castagna's medical record supports ALJ Gonzalez's
conclusions about Castagna's RFC. ALJ Gonzalez's RFC determination was based on his review
of Castagna's testimony and the medical evidence. (R. 24-31.) ALJ Gonzalez considered, for
example, that much of the medical evidence demonstrated that Castagna had reduced range of
motion in his lumbar spine, cervical spine, and right shoulder, and that these movements came with
at least some pain; thus, some limitations on tasks like reaching overhead, lifting, and crouching
were warranted, and are reflected in the ultimate RFC determination. (R. 80.) Further, ALJ
Gonzalez recognized that Castagna did have some mental health impairments that justified
limitations on the amount of interpersonal interactions that Castagna would be able to perform in
a job setting. (R. 95.)
The functional limitations reflected in Castagna's RFC, as determined by ALJ
Gonzalez, are substantially consistent with the medical records and opinions of the medical
professionals who examined, or were consulted about, Castagna's injuries and capabilities. Castagna
had numerous surgical injections for pain relief in his shoulder and cervical spine, which he reported
as being helpful for a limited period, decreasing his pain and allowing him more freedom of motion.
(See pages 7-10 above.) Yet even when Castagna had not recently had an injection to an affected
area, his conditions only were noted as being mild to moderate. (See pages 12-13 above.) Further,
there was significant medical testimony indicating that Castagna could return to work in a limited
capacity with certain restrictions on physical movement. (See pages 10-15 above.) Some physicians
observed mild limitations on Castagna's range of movement in his spine, shoulder, and knee,
whereas at other times, physicians observed no limitations on range of motion in these affected areas
at all. (See pages 4-15 above.) Castagna did not have any spinal fractures or acute disc herniations,
and was able to straight leg raise (see pages 5-6 above); the spinal abnormalities noted were mild,
and the lumbar and cervical spinal strain that he suffered from his accident on October 17, 2010
continued to resolve (see page 12 above). Although Castagna did report significant pain in his back,
as noted above, his subjective complaints were not corroborated by the medical evidence. (See
pages 3, 12 above.)
Castagna's right shoulder impingement was noted to be mild, and his torn labrum,
after being operated on in January 2013, was improving over time.
(See page 7 above.)
Examinations of the shoulder indicated tenderness, but no swelling, ecchymosis, erythema or rotator
cuff weakness. (See page 14 above.) Further, the steroid trigger point injections that were
performed by Dr. Rahman were effective at reducing pain, albeit to a limited extent and for a limited
time. (See page 10 above.) Medical evidence indicates that Castagna should avoid heavy lifting
with his right arm, but that he was generally able to lift lighter weights; further, repetitive use of the
right arm was advised to be avoided. (See pages 7-8 above.) Thus, substantial evidence exists in
the medical record to justify ALJ Gonzalez's conclusion that limitation on overhead reach and use
of the right extremity is proper.
Medical evidence notes that Castagna's left knee was affected by a grade 3 posterior
tear of the medial meniscus, a grade 2 signal within the lateral meniscus, joint effusion and proximal
patella tendinosis. (See page 6 above.) Swelling around the knee was noted to be negligible or mild
(see pages 14-15 above), and Castagna was able to ambulate with a normal gait, with no signs of
disturbances (see page 11 above). The outcome of Castagna's 2009 knee surgery was found to be
"satisfactory." (See page 12 above.) Castagna himself reported in September 2014 that his pain
levels in the left knee were "2/10[.]" (See page 14 above.) Castagna was also advised by his
treating physician to undertake an exercise program to continue to strengthen his knee and increase
his range of motion. (See page 7 above.) The medical opinions in the record suggest that
restrictions on prolonged standing and walking, and restrictions on squatting, are advisable.
(See pages 4-15 above.) Substantial evidence supports ALJ Gonzalez's RFC determination limiting
Castagna to sedentary work, which requires only occasional standing and walking, and indicates that
the limitation on crouching noted in the RFC determination is proper.
Although Castagna suffered a right hip strain as a result of the October 17, 2010
accident, an MRI performed in January 2011 on the right hip was normal, and tests showed full
range of motion and strength in the hip. (See page 6 above.) Castagna noted that his pain in the
right hip was "3/10[,]" and medical evidence showed it to be positive for tenderness, but substantial
medical evidence supports ALJ Gonzalez's conclusion that Castagna's right hip strain had been
"resolved." (See page 12 above.)
Non-medical evidence also supports ALJ Gonzalez's RFC determination. As noted
previously, Castagna testified that he is still able to shop, cook, and clean for himself, and climb
stairs to get into his home. (See page 3 above.) Further, Castagna still drives an automobile on a
regular basis. (Id.) Finally, Castagna testified that he visits the gym approximately twice a week
and performs weightlifting exercises including military press, leg extensions, and leg curls using 20
to 30 pound weights. (Id.) All of this testimony indicates that Castagna possessed a wide array of
functionality in his daily life, and thereby provides substantial support for ALJ Gonzalez's
determination that Castagna maintained the capacity to perform sedentary work.
Psychological evaluations of Castagna indicated mostly mild psychiatric impairments
as a result of his PTSD, anxiety, and depression. Dr. Damari noted that Castagna had an "anxious"
affect, but that his attention, concentration, memory skills, cognitive functioning, insight, and
judgment were all intact. (See page 16 above.) She also found him to be "coherent and goal
directed," with a good prognosis to continue to improve his mental health with continued psychiatric
treatment. (Id.) Dr. De La Chappelle indicated that Castagna would be able to return to work, so
long as his duties were limited to minimize stress. (Id.) Medical consultant A. Herrick concluded
that Castagna could adequately perform general work-related duties because he had sufficient ability
to remember, concentrate, and interact with others. (See page 17 above.) Dr. Weiss noted that
Castagna's general ailments included depression, poor sleep, and feelings of social isolation, but that
these feelings stemmed from the incident while he was employed as a police officer, and as such
primarily precluded him from returning to work as a police officer. (See page 15 above.)
Substantial psychiatric evidence supports ALJ Gonzalez's assessment that Castagna had the RFC
to perform work-related activities so long as his interactions with supervisors, co-workers and the
public are limited.
Castagna argues that ALJ Gonzalez erred because he should have given all of Dr.
Weinstein's medical findings "great weight" or "controlling weight," rather than "slight weight,"
because of Dr. Weinstein's role as Castagna's long-term treating physician. (Dkt. No. 19: Castagna
Br. at 3-4.) Castagna's argument is that, based on Dr. Weinstein's opinions, the proper RFC included
a limitation of no more than occasional rotation, flexion, and extension of the neck. (Id. at 5.)28/
ALJ Gonzalez acknowledged that Dr. Weinstein was Castagna's treating physician. (R. 86.)
However, ALJ Gonzalez's determination that Dr. Weinstein's opinions deserved only "slight weight"
(R. 86) or "some weight" (R. 87) was a proper application of the treating physician rule, in light of
that opinion's consistency with the record as a whole, including other relevant medical evidence.
The Commissioner's regulations provide that a treating physician's opinion need not be given
controlling weight if it is not well-supported by other medical evidence. (See pages 26-27 above.)
Substantial evidence supports ALJ Gonzalez's finding that Dr. Weinstein's opinion was not wellsupported by other medical evidence and should be given less than controlling weight. For example,
Dr. Weinstein's finding that Castagna must avoid all overhead lifting is at odds with Castagna's own
admission that he performs military press exercises at the gym using weight of approximately 20-25
pounds. (See page 3 above.)29/ Further, Dr. Weinstein's claim that Castagna is limited to occasional
rotation of the neck is not reflected in the reports of any other medical examiners, who do not note
any restrictions on neck rotation. (See pages 4-15 above.)
Additionally, Dr. Weinstein's assertion that Castagna could only remain seated for
one hour at a time and four hours total in an eight-hour workday, and remain standing for two hours
at a time and four hours total in an eight-hour workday (see page 8 above), differs strikingly from
virtually all other medical professionals' conclusion that Castagna could return to work in a
Limiting Castagna's RFC to occasional rotation of the neck, as Castagna requests, would be
outcome determinative, as the vocational expert testified that a person who can only
occasionally (as opposed to frequently) rotate their neck would be precluded from meeting
the requirements of any job. (See R. 141.)
A military press is also commonly known as an overhead press, and primarily works the
shoulder muscles and upper arms; it requires that the person extend a barbell over their head.
See https://www.youtube.com/watch?v=2yjwXTZQDDI (last visited 7/20/2017.)
sedentary occupation so long as adequate restrictions were imposed on tasks such as overhead
reaching and repetitive bending. Dr. Modugu stated that Castagna could sit for up to eight hours per
day, stand and walk for up to six hours per day, and did not have any pushing or pulling limitations.
(See page 11 above.) Dr. Burak concluded that Castagna could return to work in a light duty
capacity so long as he avoided lifting anything above ten pounds and avoided repetitive bending.
(Id.) Dr. Sotudeh stated that Castagna could not bend, squat, stand, or walk for prolonged periods,
but did not have any limitations on sitting. (See page 14 above.) Dr. Mazella stated that Castagna's
subjective reports of pain were not supported by the results of his medical examination and that
Castagna could return to full employment-related duties. (See page 12 above.) Dr. Weiss-Citrome
opined that Castagna could perform sedentary job duties with no lifting over ten pounds and no
overhead work with the right arm. (See page 13 above.) Dr. Wiener also concluded that Castagna
could perform sedentary work activities. (See page 15 above.) Dr. Rahman opined that Castagna
would benefit from a course of physical therapy and stretching and strengthening exercises for his
neck, but that the level of back pain that he experienced was "tolerable." (See page 10 above.)
Additionally, Dr. Rahman found that cervical facet blocks allowed Castagna to move his neck much
better and also effectuated a significant improvement on the pain he experiences. (Id.) Psychiatric
specialists Dr. Damari and Dr. De La Chappelle opined that Castagna had sufficient functional
capacity to interact with others on a limited basis and perform general work-related tasks. (See
pages 15-17 above.)
Substantial medical evidence from treating physicians and consulting doctors
supports ALJ Gonzalez's decision to give Dr. Weinstein's opinions slight or some weight. "While
the opinions of a treating physician deserve special respect, they need not be given controlling
weight where they are contradicted by other substantial evidence in the record." Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002) (citations omitted); see also, Price v. Comm'r of Soc. Sec., 14 Civ.
9164, 2016 WL 1271501 at *4 (S.D.N.Y. Mar. 31, 2016) ("The ALJ remains free to discount the
views of a treating physician if they are inconsistent with substantial evidence.").
The medical evidence, which shows that Castagna's lumbar spine was negative for
radiculopathy (see page 12 above), negative for straight leg raise test (see page 6 above), and
negative for any spinal fracture or acute disc herniations (see pages 5-6 above), supports the
opinions of the majority of physicians who suggest less restrictive limitations on Castagna's abilities
than does Dr. Weinstein. Further, Dr. Weinstein's overall conclusions about Castagna's RFC are at
odds with his own previous recommendation that Castagna continue his home exercise program,
with the limitation only that he avoid "excessive" weight overhead. (See page 7 above.) Yet Dr.
Weinstein goes on to conclude that Castagna could not work because he was incapable of "any
significant lifting or overhead use with the right arm," despite finding that his discomfort and
limitation with the use of his shoulder were "mild[.]" (Id.) These internal inconsistencies are noted
by ALJ Gonzalez in his opinion. (See R. 87.)
Following the guidelines of the treating physician rule, ALJ Gonzalez correctly
considered the following factors in determining the amount of weight to be given to Dr. Weinstein's
opinions: (1) the length of the treatment relationship and the frequency of examination; (2) the
nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's
report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the
specialization of the physician in contrast to the condition being treated; and (6) any other factors
which may be significant. (See page 26 above.) ALJ Gonzalez recognized that Dr. Weinstein had
treated Castagna over a significant period of time and had written many opinions on Castagna's
limitations. (See R. 86.) However, ALJ Gonzalez's conclusion was that only "slight weight" was
to be afforded to Dr. Weinstein's opinions because of their lack of support in the record, and the
internal inconsistencies of Dr. Weinstein's own opinions. (See R. 86-87.) ALJ Gonzalez's
conclusion is supported by the record.
Castagna argues that Dr. Weinstein's opinions must be given greater weight because
of his specialization as an orthopedic surgeon, given the orthopedic nature of Castagna's conditions,
pursuant to factor five as listed above. (Dkt. No. 19: Castagna Br. at 5.) This argument ignores the
fact that the record also contains medical opinions from seven other orthopedic surgeons, whose
medical findings differed from Dr. Weinstein's. (See pages 9-15 above.) Therefore, allowing ALJ
Gonzalez deference in his balancing of the various factors,30/ there is substantial evidence supporting
his decision to give Dr. Weinstein's opinions only slight or some weight. The Court finds that ALJ
Gonzalez's RFC determination was supported by substantial evidence and adhered to the treating
ALJ Gonzalez's Decision Not to Solicit an Additional Independent Medical
Examiner Did Not Constitute Reversible Legal Error
Castagna argues that ALJ Gonzalez "erred in not requesting that an independent
medical expert give testimony on this matter" because "ALJ [Gonzalez] made his decision on an
incomplete record," and that "this matter must be remanded to obtain complete the record." (Dkt.
No. 19: Castagna Br. at 5-6.) It is the "well-established rule in [the Second] circuit" that the ALJ
must develop the record:
"[T]he social security ALJ, unlike a judge in a trial, must on behalf of all claimants
. . . affirmatively develop the record in light of the essentially non-adversarial nature
of a benefits proceeding." Social Security disability determinations are
"investigatory, or inquisitorial, rather than adversarial." "[I]t is the ALJ's duty to
investigate and develop the facts and develop the arguments both for and against the
See fn. 19, above.
granting of benefits."
Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009) (citations omitted). The Second Circuit has
clarified, however, that "'where there are no obvious gaps in the administrative record, and where
the ALJ already possesses a "complete medical history," the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.'" Swiantek v. Comm'r of Soc. Sec.,
588 F. App'x 82, 84 (2d Cir. 2015) (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)
(citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996))).31/
The ALJ's duty to develop the record is not a duty to go on a fishing expedition. See,
e.g., Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("Plaintiff suggests that the ALJ failed
adequately to develop the record concerning the possibility that plaintiff was mentally disabled.
However, we find little indication in the record suggesting a disabling mental disorder during the
period in question that would have obliged the ALJ to develop the record further.").32/ Here, the
Court finds no reason to believe that ALJ Gonzalez was working with an incomplete record where
the record before him already spanned approximately 1,000 pages and included an extensive number
See also, e.g., Ramos v. Comm'r of Soc. Sec., 13 Civ. 6561, 2015 WL 708546 at *18
(S.D.N.Y. Feb. 4, 2015) (ALJ had no further obligation to develop the record where the
medical record from the treating clinic was "extensive, including more than two years of
consistent treatment notes."); Matos v. Colvin, 13 Civ. 4525, 2014 WL 3746501 at *9
(S.D.N.Y. July 30, 2014) (ALJ properly fulfilled duty to develop the record where he
questioned claimant thoroughly, solicited testimony from medical and vocational experts and
admitted voluminous submissions from physicians), aff'd, 618 F. App'x 14 (2d Cir. 2015).
Accord, e.g., Miller v. Colvin, No. 15-CV-0552, 2016 WL 4402035 at *7-8 (N.D.N.Y. Aug.
18, 2016) ("[A]lthough Plaintiff argues that the ALJ should have sought additional
information regarding her diagnosis [of fibromyalgia], she fails to articulate what this
evidence consists of and whether it was missing from the record."); Santiago v. Astrue, No.
10-CV-937, 2011 WL 4460206 at *2 (D. Conn. Sept. 27, 2011) ("The plaintiff makes only
a general argument that any missing records possibly could be significant, if they even exist.
That argument is insufficient to carry his burden.").
of reports from medical professionals of various specialties. Castagna's counsel's brief fails to
identify a time period constituting a gap in the record or any other basis to indicate a need for an
independent medical examiner to be retained. Accordingly, the Court finds that ALJ Gonzalez was
not under a duty to further develop the record by requesting an independent medical examination.
Castagna Did Not Have The Ability to Perform His Past Relevant Work
The fourth step of the five-step analysis asks whether Castagna had the residual
functional capacity to perform his past relevant work. (See page 25 above.) Castagna previously
worked as a police officer and construction worker/carpenter. (See page 2 above.) ALJ Gonzalez
concluded that Castagna did not have the ability to perform his past relevant work. (See page 21
above.) Because this finding favors Castagna and is not contested by either party, the Court
proceeds to the fifth and final step of the analysis.
There Are Jobs In Substantial Numbers In The Economy That Castagna Can
In the fifth step, the burden shifts to the Commissioner, "who must produce evidence
to show the existence of alternative substantial gainful work which exists in the national economy
and which the claimant could perform, considering not only his physical capability, but as well his
age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir.
1980).33/ In meeting his burden under the fifth step, the Commissioner:
may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404,
Subpart P, App. 2, commonly referred to as "the Grid". The Grid takes into account
the claimant's residual functional capacity in conjunction with the claimant's age,
education and work experience. Based on these factors, the Grid indicates whether
See, e.g., Roma v. Astrue, 468 F. App'x 16, 20 (2d Cir. 2012); Arruda v. Comm'r of Soc.
Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir.
2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999).
the claimant can engage in any other substantial gainful work which exists in the
national economy. Generally the result listed in the Grid is dispositive on the issue
Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996) (fn. omitted); see, e.g., Heckler v.
Campbell, 461 U.S. 458, 461-62, 465-68, 103 S. Ct. 1952, 1954-55, 1956-58 (1983) (upholding the
promulgation of the Grid); Roma v. Astrue, 468 F. App'x at 20-21; Martin v. Astrue, 337 F. App'x
87, 90 (2d Cir. 2009); Rosa v. Callahan, 168 F.3d at 78; Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).
However, "relying solely on the Grids is inappropriate when nonexertional limitations
'significantly diminish' plaintiff's ability to work so that the Grids do not particularly address
plaintiff's limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July
20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov.
2, 2011) (Peck, M.J.), R. & R. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v.
Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole
reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments
'significantly limit the range of work permitted by his exertional limitations.'").
Rather, where the claimant's nonexertional limitations "'significantly limit the range
of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational
expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d at
605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have explained that the
ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact
on a claimant's ability to perform the full range of work, and instead must obtain the testimony of
a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional
impairments are present at the fifth step in the disability analysis, however, 'application of the grids
is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert
(or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'"
(quoting & citing Bapp v. Bowen, 802 F.2d at 603, 605-06)); Suarez v. Comm'r of Soc. Sec., No.
09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional
limitations that 'significantly limit the range of work permitted by his exertional limitations,' the ALJ
is required to consult with a vocational expert." (quoting Zabala v. Astrue, 595 F.3d at 411)).
ALJ Gonzalez properly relied on the testimony of vocational expert Linda Vause,
who testified that an individual with Castagna's vocational profile and residual functional capacity
would be unable to perform any of his previous work positions, but could be employed as a
document preparer, addresser, touch-up screener, or ampoule sealer. (See page 4 above.) These
jobs are all unskilled sedentary positions that the vocational expert testified exist in significant
numbers in the national economy. (Id.) ALJ Gonzalez relied upon Vause's testimony in reaching
his step five determination when he specifically referred to those jobs in his findings, and explicitly
referenced Vause's testimony in determining that these jobs exist in significant numbers. (See R.
96-97.) Accordingly, ALJ Gonzalez's decision at step five was supported by substantial evidence.
See, e.g., Frazier v. Comm'r of Soc. Sec., 16 Civ. 4320, 2017 WL 1422465 at *18 (S.D.N.Y. Apr.
20, 2017) (Peck, M.J.).
For the reasons set forth above, the Commissioner's determination that Castagna was
not disabled within the meaning of the Social Security Act during the period from October 17, 2010
to December 11, 2014 is supported by substantial evidence. Accordingly, the Commissioner's
motion for judgment on the pleadings (Dkt. No. 20) is GRANTED and Castagna's motion (Dkt. No.
18) is DENIED.
New York, New York
July 20, 2017
Andrew J. Peck
United States Magistrate Judge
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