Davis v. Berryhill

Filing 25

REPORT & RECOMMENDATION re: 17 MOTION for Judgment on the Pleadings filed by Dana N Davis, 21 MOTION for Judgment on the Pleadings filed by Nancy A. Berryhill. For the foregoing reasons, I respectfully recommend that the Commissioner's motion for judgment on the pleadings be DENIED, and that Plaintiff's motion for judgment on the pleadings be GRANTED to the extent that the case be REMANDED to the Commissioner for further proceedings consistent with this Report and Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also F ed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable An alisa Torres, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Torres. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). (Objections to R&R due by 3/15/2019.) (Signed by Magistrate Judge Ona T. Wang on 3/1/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DANA N. DAVIS,
-against-

Plaintiff,

NANCY BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
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17-CV-7052 (AT) (OTW)
REPORT & RECOMMENDATION

ONA T. WANG, United States Magistrate Judge:
TO THE HONORABLE ANALISA TORRES, United States District Judge,
I.

Introduction
Plaintiff Dana N. Davis commenced this action pursuant to 42 U.S.C. § 405(g),

challenging the decision by the Acting Commissioner of Social Security (the “Commissioner”)
denying Plaintiff’s application for disability insurance benefits (“DIB”) under Title II of the Social
Security Act (“the Act”), 42 U.S.C. § 405(g). The parties have cross-moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF 17, 21). Plaintiff
seeks an order reversing the Commissioner’s decision that Plaintiff is not disabled or, in the
alternative, an order remanding her claim for a new administrative hearing.
For the reasons set forth below, I respectfully recommend that the Commissioner’s
motion be DENIED, and that Plaintiff’s motion be GRANTED to the extent that the case be
REMANDED to the Commissioner for further proceedings consistent with this Report and
Recommendation.

II.

Facts 1
A. Procedural Background
Plaintiff filed an application for DIB on March 27, 2014, alleging that she became

disabled on November 21, 2013 due to lower back pain, a herniated disc, left sacroiliac joint
pain, muscle spasms, and lumbar radicular pain. (Tr. 116–22, 138, 141–49). The claim was
initially denied on August 11, 2014, (Tr. 60), and Plaintiff requested a hearing before an
Administrative Law Judge. (Tr. 64). On August 3, 2016, Plaintiff appeared with an attorney
representative at a hearing before ALJ Brian Lemoine. (Tr. 26–50). On December 16, 2016, the
ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 8–25). Plaintiff requested a
review of the decision, which the Appeal Council denied. (Tr. 1–7).
B. Social Background
Plaintiff was born on January 8, 1977 and was 36 years old at her alleged disability onset
date, November 21, 2013. (Tr. 114, 116). She never finished high school or obtained a GED, (Tr.
36), and previously worked as a custodian for the City of New Rochelle School District. (Tr. 35,
129). On November 21, 2013, Plaintiff was lifting a bag of discarded school supplies which was
heavier than she expected, causing her back pain. (Tr. 143).
Plaintiff stated that she has constant pain, making it hard for her to walk, sit, or sleep.
(Tr. 28). She further stated that walking upstairs, carrying groceries, and doing laundry are
difficult tasks for her to perform. (Tr. 29). Plaintiff stated that she can sit for about one hour

1

Only the facts relevant to the Court’s review are set forth here. Plaintiff’s medical history is contained in the
administrative record that the Commissioner filed in accordance with 42 U.S.C. § 405(g). (See Administrative
Record, dated March 15, 2018, ECF 12 (“Tr.”)).

2

before having to stand up due to pain and/or stiffness. (Tr. 36). Plaintiff also stated that she can
dress and undress herself if she is not in great pain, (Tr. 38), that she can wash herself with
difficulty, (id.), and can purchase prepared foods for herself and her children. (Tr. 41).
Plaintiff stated that in a typical day, she will “try to do” light housework, such as
sweeping, mopping, and gathering clothing for laundry. (Tr. 30). She stated that when she
wakes up, she experiences pain in her lower back and shoulder, which causes her to take
around ten minutes to get out of her bed. (Id.)
C. Medical Background
1. Medical Treatment Prior to Alleged Onset Date of November 21, 2013
a. Dr. Steven Klass, Neurologist
Before Plaintiff’s injury on November 21, 2013, Plaintiff suffered two work-related
injuries, one in 2011 and the other in 2012. (Tr. 316). Plaintiff began treatment with Stephen
Klass, M.D., on June 30, 2012. (Tr. 188–91). Despite experiencing sharp pain in her lower back
that traveled down her left leg, Plaintiff was nonetheless alert and oriented. (Tr. 188–89). To
offset the pain, Dr. Klass prescribed Plaintiff Celebrex. (Tr. 190).
A July 18, 2012 Magnetic Resonance Image (MRI) of Plaintiff’s spine showed a shallow,
central bilateral disc herniation 2 at L5-S1, mild grade 1 retrolisthesis3 at the L5-S1 level, minor

2

Herniation is “the abnormal protrusion of an organ or other body structure through a defect or natural opening in
a covering, membrane, muscle, or bone.” Dorland’s Illustrated Medical Dictionary, 852 (32nd ed. 2012).

3

Retrolisthesis is a retrospondylolisthesis, which is the “posterior displacement of one vertebral body on the
subjacent body.” Dorland’s Illustrated Medical Dictionary, 1636 (32nd ed. 2012).

3

bilateral facet arthropathy 4 at the L5-S1 level, minimal asymmetric disk bulge at the L4-L5 level,
and loss of the normal lumbar lordosis5. (Tr. 192–93). On July 26, 2012, October 9, 2012, and
November 8, 2012, Dr. Klass noted that Plaintiff’s degree of disability was 100%. (Tr. 185–87).
Moreover, on November 27, 2012, Dr. Klass opined that Plaintiff “remains totally disabled.” (Tr.
184). Plaintiff was taking large quantities of Aleve to control her pain. (Tr. 184).
During a visit with Dr. Klass on April 4, 2013, Dr. Klass noted that Plaintiff has “accepted
the fact that she is unable to [live] with her present degree of pain.” (Tr. 182). Dr. Klass
scheduled her for lumbar surgery. (Tr. 182). On May 20, 2013, Dr. Klass determined that
Plaintiff was likely suffering from left sacroiliac6 dysfunction, which was causing her pain. (Tr.
181). A neurosurgeon found that she was not a candidate for surgery because her injury was
likely a soft tissue injury. (Tr. 181). On June 11, 2013, Dr. Klass found that while Plaintiff had
improved and her degree of disability was moderate, she was still unable to return to work and
that she would “not be able to return to her prior job description.” (Tr. 180). On July 18, 2013,
Dr. Klass found Plaintiff’s degree of disability to be mild to moderate based on subjective
complaints and that she was suffering from left sciatic notch pain to palpation. (Tr. 179).

Arthropathy is defined as “any joint disease.” Dorland’s Illustrated Medical Dictionary, 158 (32nd ed. 2012). See
also facet osteoarthritis, also known as facet joint arthropathy, which is a “type of spondyloarthritis centered in
facet joints, with disc degeneration and pain; it is most common in the lumbar region and also occurs in the
cervical region.” Dorland’s Illustrated Medical Dictionary, 1344 (32nd ed. 2012).

4

“Lumbar” “pertain[s] to the loins, the parts of the sides of the back between the thorax and the pelvis.” Dorland’s
Illustrated Medical Dictionary, 1076 (32nd ed. 2012). Lumbar lordosis is “the dorsally concave curvature of the
lumbar vertebral column when seen from the side.” Dorland’s Illustrated Medical Dictionary, 1074 (32nd ed. 2012).

5

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Sacroiliac “pertain[s] to the sacrum and ilium, denoting the joint or articulate between the sacrum and ilium and
the ligaments associated therewith.” Dorland’s Illustrated Medical Dictionary, 1662 (32nd ed. 2012). See also
sacrum “the triangular bone just below the lumbar vertebrae.” Id.

4

Additionally, her lumbar range of movement was 66% normal. (Tr. 179). On November 11,
2013, Plaintiff was still showing similar symptoms and Dr. Klass found that her degree of
disability was 100% and that she should restart physical therapy. (Tr. 177).
b. Dr. Mark Weigle, Physiatrist
Dr. Klass referred Plaintiff to be examined by Mark Weigle, M.D. Dr. Weigle first
examined Plaintiff on August 14, 2012. (Tr. 198–200). Dr. Weigle found Plaintiff to be well
developed and well nourished. (Tr. 199). Additionally, he found that she had left lumbosacral
radiculopathy, 7 probable S1 distribution with an underlying bulging disc at L4-5, and possible
shallow disc herniation or bulging disc at L5-S1. (Tr. 200). He suggested that Plaintiff start
physical therapy, start gabapentin, continue taking naproxen and flexeril, and take Percocet if
her stomach could handle it. (Id.) Additionally, he recommended that she consider lumbar
epidural injections in the following weeks if there was no improvement and that she consider a
home TENS 8 unit. Id.
Dr. Weigle re-examined Plaintiff on September 4, 2012 and September 25, 2012. (Tr.
201–03). Plaintiff continued to complain of radicular symptoms and pain going down from her
left lower extremity into the buttocks. (Tr. 201). On October 21, 2012, Dr. Weigle opined that
Plaintiff had remained out of work and that given the “severe nature of her back,” she would be
unable to perform the type of work her job requires. (Tr. 201).

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Lumbosacral radiculopathy is the “disease of nerve roots of the lumbar and sacral segments of the spinal cord.”
Dorland’s Illustrated Medical Dictionary, 1571 (32nd ed. 2012).

8

A TENS (transcutaneous electrical nerve stimulation) unit is an electrical stimulator. (See R. 200).

5

Plaintiff had a nerve conduction and electromyography (EMG) study done. (Tr. 208–11).
Per Dr. Weigle’s nerve conduction & EMG Report dated November 6, 2012, Dr. Weigle
suggested that Plaintiff could return to work with no restrictions. (Tr. 210). Dr. Weigle reexamined Plaintiff on December 6, 2012. (Tr. 211). During the December 2012 re-examination,
Dr. Weigle stated that while Plaintiff “doesn’t feel that [she] can return to janitor type work,”
nonetheless, “her disability level according to the Oswestry Disability Index is only an 8% at this
point.” (Tr. 211).
At her January 13, 2013 re-examination, Dr. Weigle found that Plaintiff was doing
“extremely well” and “otherwise ha[d] very low disability.” (Tr. 212). Moreover, he found that
she had full motor power in the lower extremities and while she had tenderness in the left SI
joint, she had good flexion and extension. (Tr. 212). Despite the improvement, she began to
decline, and on April 5, 2013, she stated that her condition had gotten worse. (Tr. 215).
Additionally, her Oswestry disability index 2.0 had increased from 22% to 34%. (Id.) When Dr.
Weigle performed her physical examination, which did not include her hip girdle (since it was
not fully tested), she had good motor power throughout her lower extremities. (Id.) Her gait on
level surfaces was steady and she had symmetric reflexes in her knee and ankle jerks. (Id.)
c. Dr. Zitzmann: Independent Medical Examiner
In connection with her Workers’ Compensation application, Dr. Zitzmann’s first
Independent Medical Examination (“IME”) of Plaintiff occurred on February 15, 2013. (Tr. 303–
05). Dr. Zitzmann found Plaintiff’s gait to be slow, but Plaintiff had “no limp and no antalgic

6

[gait] 9 component.” (Tr. 304). Dr. Zitzmann further found that Plaintiff did poorly on motor
testing and complained when raising her leg, bending her knee, and moving her foot, although
there were no “objective positive orthopedic and neurologic findings.” (Tr. 304–05). Despite her
poor performance, motor testing revealed that there were no differences in her left and right
side motor power. (Id.) Upon examination, he found that Plaintiff had a “partial marked degree
of disability subjectively, without significant positive MRI findings, or EMG findings.” (Id.)
Additionally, no atrophy was noted. (Id.) Dr. Zitzmann further found that Plaintiff’s complaints
were subjective, and, in his opinion, were “quite markedly exaggerated.” (Id.) Dr. Zitzmann
opined that since she had “reached maximum medical improvement” and that “[n]o treatment
has really been significantly helpful,” he did “not know of any other treatment that [could] be
successfully rendered to her.” (Id.)
Dr. Zitzmann’s second IME took place on August 5, 2013. (Tr. 298–300). Dr. Zitzmann
stated that although an MRI did not show any significant findings, he found a mild degree of
atrophy in the left leg, limitation of back movement, positive straight leg raising, and left
sacroiliac tenderness. (Tr. 299). Dr. Zitzmann further found that Plaintiff would be unable to
return to her earlier duties as a custodian and that she was instructed to avoid “bending or
lifting,” and told that any “carrying should be limited to 20 pounds.” (Tr. 300). Dr. Zitzmann also
opined that based on her MRI and EMG findings, surgery should not be done. (Tr. 300).

An antalgic gait is a gait that develops as a way to avoid pain when walking. Dorland’s Illustrated Medical
Dictionary, 97 (32nd ed. 2012).

9

7

d. Dr. Christian Brotea, Orthoepedist
Christian Brotea, M.D., an orthopedic surgeon, examined Plaintiff on April 9, 2013. (Tr.
318–20, repeated 336–38). Dr. Brotea first performed a general examination on Plaintiff, where
he found that Plaintiff’s head, eyes, ears, nose, neck, skin, heart, lungs, chest, and pulses were
all normal. (Tr. 318). Dr. Broeta assessed Plaintiff with lower back pain (lumbago 10) and a
herniated lumbar disc. (Tr. 319).
Dr. Brotea next saw Plaintiff on May 2, 2013. (Tr. 316, repeated 334). Dr. Brotea again
assessed that Plaintiff had lower back pain (lumbago) and a herniated lumbar disc. (Id.) Upon
his physical examination, he found that Plaintiff did not have “any focal neurologic deficits” or
“evidence of radiculopathy or myelopathy.11” (Id.) During the examination, Plaintiff stated that
she understood that she was not a surgical candidate. (Id.) Given Plaintiff’s back pain, however,
Dr. Brotea considered providing Plaintiff with an SI joint injection for diagnostic and therapeutic
purposes. (Id.)
2. Medical Treatment After Alleged Onset Date of November 21, 2013
a. Dr. Steven Klass, Neurologist
On January 10, 2014, Plaintiff returned to Dr. Klass for a follow-up appointment. (Tr.
176). Dr. Klass found that Plaintiff had a moderate degree of disability, that she should limit her
physical therapy, and that she should return to pain management. (Id.) On September 22, 2014,

Lumbago is “a nonmedical term for any pain in the lower back.” Dorland’s Illustrated Medical Dictionary, 1076
(32nd ed. 2012).
10

11

Myelopathy is “1. [A]ny of various functional disturbances or pathological changes in the spinal cord, often
referring to nonspecific lesions in contrast to the inflammatory lesions of myelitis. 2. [A] pathological condition of
the bone marrow.” Dorland’s Illustrated Medical Dictionary, 1220 (32nd ed. 2012).

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Dr. Klass examined Plaintiff again and found that she was totally disabled. (Tr. 269). On
November 12, 2014, Dr. Klass noticed that Plaintiff had returned to a moderate degree of
disability (50-60%). (Tr. 270). Dr. Klass also stated that Plaintiff had not reached maximum
medical improvement because: “1) [Plaintiff] [c]ould benefit from further epidural injections, 2)
[Plaintiff] [was] not taking any medication at this point in time, [and] 3) [Plaintiff] could be
considered for [a] back strengthening exercise program.” (Id.) On December 20, 2014, Dr. Klass
found that Plaintiff’s degree of disability was the same as her previous visit. (Tr. 271). He opined
that Plaintiff was possibly suffering from a “soft tissue (muscle) problem,” which prevented her
from being a suitable candidate for surgery. (Id.) Upon examination on February 5, 2015 and
March 17, 2015, Dr. Klass found that Plaintiff’s back pain had remained unchanged. (Tr. 272–
73). By April 21, 2015, however, Plaintiff’s degree of disability had decreased to a mild degree
(33%). (Tr. 274). On June 22, 2015, Plaintiff’s degree of disability remained mild at 33%. (Tr.
275).
While Plaintiff continued to complain of pain in her left side, Dr. Klass opined that she
had a “rather benign MRI scan” and her EMG study and lumbar spine were both normal. (Id.)
On July 22, 2015, Plaintiff’s degree of disability remained mild at 33%. (Tr. 276). She had no
noticeable muscle spasms, but she did show lumbar muscle spasms when Dr. Klass directly
palpated the region. (Id.) Additionally, Plaintiff was taking Neurontin,12 which she reported
seemed to help. (Id.) On September 21, 2015, Plaintiff’s degree of disability had again increased

12

Neurontin is the brand name for gabapentin, an anticonvulsant (antiseizure) drug that is sometimes used to
treat back spasms. See Neurontin Medication Guide, available at https://www.pfizermedicalinformation.com/enus/neurontin/medguide (last visited Feb. 28, 2019).

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to moderate at 66%. (Tr. 277). Since Plaintiff restarted Neurontin, the pain in her lower back
and leg decreased. (Id.) Plaintiff’s examination on October 21, 2015 produced similar results to
those of her previous visit. (Tr. 278). By November 23, 2015, however, Plaintiff’s degree of
disability had increased to 100%. (Tr. 279). Plaintiff stated that she continued having lower back
pain, with pain radiating into her left leg. (Id.) Additionally, she was never truly comfortable and
was ready to have surgery if her physicians recommended it. (Id.) On December 21, 2015,
Plaintiff reported that her symptoms had remained the same. (Tr. 280). Although Plaintiff’s
degree of disability had decreased to 33%, because she was not responding to medication,
epidural steroids, or a physical therapy program, Dr. Klass decided to refer Plaintiff to a spinal
surgeon. (Id.)
Dr. Klass continued to examine Plaintiff into 2016. On January 16, 2016, Dr. Klass found
that Plaintiff’s degree of disability was again moderate at 66%. (Tr. 260). Dr. Klass found that
Plaintiff continued to suffer lower back pain that traveled into her left leg. (Id.) Plaintiff’s
symptoms remained the same upon her re-examination on February 25, 2016. (Tr. 259,
repeated 282). Dr. Klass stated that Plaintiff was evaluated by a spine surgeon and was told that
she was not a candidate for spine surgery. (Id.) Dr. Klass stated in his March 24, 2016 evaluation
that Plaintiff’s symptoms remained the same and he considered whether Plaintiff should
proceed with a water-soluble myelogram–CT so that her lumbar region and spinal nerve could
be evaluated. (Tr. 258). On May 4, 2016, Dr. Klass noted that a spine surgeon who had
evaluated her twice found that she did not warrant surgical intervention. (Tr. 257, repeated
284). Dr. Kline also opined that he was not sure what the next step was, but he received
permission to proceed with a non-contrast MRI scan of Plaintiff’s cervical region. (Id.)
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b. Dr. Mark Weigle, Physiatrist
Plaintiff continued to visit Dr. Weigle through 2014. On March 4, 2014, Dr. Weigle found
that Plaintiff was alert, oriented, and not in acute distress. (Tr. 195–96). During the
examination, Plaintiff stated that while her pain level was between a zero-to-three out of ten,
some days it reached a six out of ten. (Tr. 195). Her pain levels increased when she stood up
from a seated position. (Id.) Plaintiff also informed Dr. Weigle that in the past year, she had
received four injections to treat her back pain. (Id.) Dr. Weigle’s impression from the physical
exam was that Plaintiff had lower back pain and SI joint dysfunction/disorder of sacrum. (Id.)
c. Dr. Marc Samolsky, Pain Management Specialist
Plaintiff sought the care of Marc Samolsky, M.D., for pain management for her muscle
spasms, lumbar radicular pain, and left sacroiliac joint pain. (Tr. 216). From 2014 to 2016,
Plaintiff visited Dr. Samolsky many times and she often made similar complaints. (Tr. 239–46).
Plaintiff also consistently found that she felt “significant pain relief” after her epidural steroid
injections. (Tr. 244). The relief from the shots, however, sometimes lasted only for three weeks,
other times they would last six to eight weeks. (Tr. 241–42, 244). Plaintiff continued to suffer
lower back pain on her left side. (Tr. 239). She also suffered radiating pain down both legs,
laterally in the thighs and into the feet, where she also felt tingling. (Id.)
d. Dr. Christian Brotea, Orthopedist and Dr. John Olsewski, Surgeon
On January 4, 2016, Dr. Brotea re-examined Plaintiff due to her persistent lower back
pain. (Tr. 314). Dr. Brotea examined Plaintiff’s new MRI, which showed “evidence of very mild
disc bulging at the L3-4/L4-5 levels without significant central canal stenosis of the existing
nerve roots.” (Id.) Upon further physical examination, Dr. Brotea found that Plaintiff did not
11

have “any focal neurologic deficits” or any evidence of “radiculopathy or myelopathy.” Id.
Additionally, Dr. Brotea opined that while Plaintiff was not a candidate for surgery, he would
consider a sacroiliac injection for diagnostic and therapeutic purposes.
Dr. Samolsky referred Plaintiff to John Olsewski, M.D. (Tr. 244). Dr. Olsewski also
recommended against surgery. (Tr. 239). Dr. Olsewski referred Plaintiff to see Dr. Gabal for a
spinal cord simulator consultation, since Plaintiff might be “an excellent candidate.” (Tr. 239,
323).
e. EMG and NCV Testing
On April 30, 2014, Dr. Sam Mazabreb performed EMG and nerve conduction tests pm
Plaintiff. (Tr. 293–96). Dr. Mazabreb opined that his electrophysiological findings were highly
suggestive of a left L5/S1 radiculopathy in the lower extremity. (Tr. 296). Dr. Mazabreb noted
that the findings correlated with Plaintiff’s symptoms and that further evaluation of the lumbar
spine was recommended. (Id.) Dr. Mazabreb advised Plaintiff to continue “conservative
chiropractic treatment” with her attending physician. (Id.)
3. Consultative Examiner Report
a. Dr. Julia Kaci, Internist
On August 4, 2014, Julia Kaci, M.D., based on referral from the New York State Division
of Disability Determination, performed an orthopedic examination of Plaintiff. (Tr. 218–22).
Plaintiff stated that she suffered from lower back pain that shot down her left leg and that she
was unable to sit for more than one-to-two hours and stand for more than ten to fifteen
minutes. Additionally, since she was unable to cook, clean, and shop by herself, her children
assisted her with these tasks. (Tr. 218). Upon examination, Dr. Kaci found Plaintiff to be in “no
12

acute distress” but that her “gait was antalgic and slow.” (Tr. 219). Dr. Kaci further noted that
Plaintiff was unable to walk on her heels and toes due to back pain and that she was able to
squat halfway with help. (Id.) Plaintiff needed no help changing before or after the examination
or getting on and off the exam table. (Id.) Dr. Kaci found that Plaintiff had moderate limitations
to sitting, bending, squatting, and walking and had marked limitations to lifting, carrying, and
standing. (Tr. 220). Dr. Kaci diagnosed Plaintiff with lower back pain, a history of disc herniation
and radiculopathy, and left sciatica. (Id.)
D. Non-Medical Evidence
4. August 3, 2016 Hearing Before the ALJ
a. Plaintiff’s Testimony
Plaintiff appeared at the August 3, 2016 administrative hearing with her attorney. (Tr.
26–43). Plaintiff stated that before her accident, she “was 100 percent healthy.” (Tr. 32).
Plaintiff stated that she has “real bad sciatica,” which causes her constant pain, (Tr. 28), and
that her left side hurt more than her right side. (Tr. 29). Plaintiff testified that she has pain in
her right shoulder, upper back, and lower back. (Id.) Plaintiff also stated that after her MRI, she
learned that she had two bulging discs, which cause her back pain. (Id.)
Because of the pain, she testified, it is hard for her to do “any walking, sitting, [and]
sleeping.” (Tr. 28). Plaintiff feels pain first thing in the morning and takes up to ten minutes for
her to get out of bed. (Tr. 30). She stated that the pain also interferes with mundane tasks, such
as “carrying groceries, doing laundry . . . [and] getting into [ ] bed.” (Tr. 29). Plaintiff sometimes
needs her children to help her dress. (Tr. 38). Although Plaintiff does not have a driver’s license,
she testified that she is able to use a taxi or train. (Tr. 40). Additionally, she stated that she
13

plans on flying to Georgia. (Tr. 40). She is able to walk for twenty to thirty minutes before she
feels pain. (Tr. 37). Additionally, Plaintiff testified that when she takes her medication, she is
able is to sit for longer periods of time. (Tr. 36).
To offset the pain, Plaintiff takes gabapentin (also known as Neurontin) about four times
a day. (Tr. 30–31). Side effects of gabapentin for her are dizziness and blurred motion. (Tr. 36).
Plaintiff testified that she has depression. (Tr. 31).
Plaintiff testified that prior to her injury, she was a custodian (Tr. 35). As a custodian,
she would “mop, sweep, take out garbage, [and] move furniture or any rubbish.” (Id.)
Additionally, she would lift furniture, garbage, or “anything that was left to take out to the
garbage, practically everything [and] anything.” (Id.) Plaintiff stated that since the date of her
injury, she has been unable to complete any of these tasks. (Id.) After questioning from the ALJ
about what work she could perform, Plaintiff testified that she should be able to do “light
work,” such as secretarial work or work as a customer representative. (Id.)
Plaintiff’s primary source of income comes from the Worker’s Compensation she
receives as well as her daughter’s social security survivor benefits. (Tr. 41–42). Plaintiff testified
that she is moving to Georgia because it is more affordable and has a better school district for
her daughter. She has been working with the Workers’ Compensation Board to find doctors in
Georgia who would be able to implement the spinal stimulator. (Tr. 42).
b. Vocational Expert Testimony
Vocational expert (“VE”) Dr. Greene testified at the August 3, 2016 hearing. (Tr. 43–50).
Dr. Greene testified that Plaintiff’s job qualified as a custodian, under Dictionary of
Occupational Titles (DOT) code 382.664-010, with an SVP: 3, which is a semi-skilled position at a
14

medium level of exertion. (Tr. 44). Although Dr. Greene testified that Plaintiff’s injury would
preclude her from working as a custodian, there were nonetheless many roles that plaintiff
perform. (Tr. 45). These roles considered an individual with Plaintiff’s age, education, work
history, and limited range of sedentary exertional work with no more than occasional postural
positions, including crouching, crawling, stooping, kneeling, balancing and climbing of stairs.
(Id.) Dr. Green testified that these jobs are plentiful in the national economy. (Id.) These roles
include: order clerk, DOT code 209.567-014, SVP: 2, unskilled at a sedentary level, with 70,000
jobs in the national economy; addresser, DOT code 209.587-010, SVP: 2, unskilled at a
sedentary level, 180,000 jobs in the national economy; and toy stuffer, DOT code 731.685-014,
SVP: 2, unskilled and sedentary level, with 200,000 jobs in the national economy. (Tr. 45–46).
III.

Analysis
A. Applicable Legal Principles
1. 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 the determination or
whether it is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013) (per curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012);
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). 13 Moreover, the court cannot “affirm an

13

The standards that must be met to receive supplemental security income benefits under Title XVI of the Social
Security Act are the same as the standards that must be met in order to receive DIB under Title II of the statute.
Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases addressing either claim are equally applicable to the
issues before the Court.

15

administrative action on grounds different from those considered by the agency.” Lesterhuis v.
Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting Burgess, 537 F.3d at 128).
The Court first reviews the Commissioner’s decision for compliance with the correct
legal standards; only then does it determine whether the Commissioner’s conclusions were
supported by substantial evidence. Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)). “Even if the Commissioner’s decision is
supported by substantial evidence, legal error alone can be enough to overturn the ALJ’s
decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009). However, “where
application of the correct legal principles to the record could lead to only one conclusion, there
is no need to require agency reconsideration.” Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.
1987).
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 (1971); accord Talavera, 697 F.3d at 151.
Consequently, “[e]ven where the administrative record may also adequately support contrary
findings on particular issues, the ALJ’s factual findings ‘must be given conclusive effect’ so long
as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
(per curiam) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)). Thus, “[i]n
determining whether the agency’s findings were supported by substantial evidence, ‘the
reviewing court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.’” Selian, 708 F.3d at 417 (citation
omitted).
16

2. Determination of Disability
A person is considered disabled for Social Security benefits purposes when she 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);
see also Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (both the impairment and the inability
to work must last twelve months). In addition, to obtain DIB, the claimant must have become
disabled before the date on which he was last insured. See 42 U.S.C. §§ 416(i), 423(a); 20 C.F.R.
§§ 404.130, 404.315; McKinstry v. Astrue, 511 F. App’x 110, 111 (2d Cir. 2013) (summary order)
(citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)).
The impairment must be demonstrated by “medically acceptable clinical and laboratory
diagnostic techniques,” 42 U.S.C. § 423(d)(3), and it must be “of such severity” that the
claimant cannot perform her previous work and “cannot, considering his age, education and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A). Whether such work is actually available in the area
where the claimant resides is immaterial. 42 U.S.C. § 423(d)(2)(A).
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
others; and (4) the claimant’s educational background, age, and work experience.” Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.
1983) (per curiam) (internal quotation marks omitted)).
17

In determining whether an individual is disabled, the Commissioner must follow the
five-step process required by the regulations. 20 C.F.R. § 404.1520(a)(4)(i)—(v); see Selian, 708
F.3d at 417-18; Talavera, 697 F.3d at 151. The first step is a determination of whether the
claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If she is not, the
second step requires determining whether the claimant has a “severe medically determinable
physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). If she does, the inquiry at the
third step is whether any of these impairments meet one of the Listings in Appendix 1 of the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii). To be found disabled based on a Listing, the
claimant’s medically determinable impairment must satisfy all of the criteria of the relevant
Listing. 20 C.F.R. § 404.1525(c)(3); Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Otts v. Comm'r of
Soc. Sec., 249 F. App’x 887, 888 (2d Cir. 2007) (summary order). If the claimant meets a Listing,
the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not meet any of the Listings in Appendix 1, step four requires an
assessment of the claimant’s residual functional capacity (“RFC”) and whether the claimant can
still perform her past relevant work given her RFC. 20 C.F.R. § 404.1520(a)(4)(iv); see Barnhart
v. Thomas, 540 U.S. 20, 24-25 (2003). If she cannot, then the fifth step requires assessment of
whether, given claimant’s RFC, she can make an adjustment to other work. 20 C.F.R.
§ 404.1520(a)(4)(v). If she cannot, she will be found disabled. 20 C.F.R. § 404.1520(a)(4)(v).
RFC is defined as “the most [the claimant] can still do despite [her] limitations.” 20 C.F.R.
§ 404.1545(a)(1). To determine RFC, the ALJ “identif[ies] the individual’s functional limitations
or restrictions and assess[es] his or her work-related abilities on a function-by-function basis,
including the functions in paragraphs (b), (c), and (d) of 20 [C.F.R. §§] 404.1545 and 416.945.”
18

Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam) (quoting Social Security Ruling
96-8p, 1996 WL 374184, at *1 (July 2, 1996)). The results of this assessment determine the
claimant’s ability to perform the exertional demands14 of sustained work which may be
categorized as sedentary, light, medium, heavy or very heavy. 20 C.F.R. § 404.1567; see Schaal
v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998). This ability may then be found to be limited
further by non-exertional factors that restrict claimant’s ability to work. See Michaels v. Colvin,
621 F. App’x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v. Astrue, 595 F.3d 402, 410 (2d
Cir. 2010).
The claimant bears the initial burden of proving disability with respect to the first four
steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to
prove that the claimant’s RFC allows the claimant to perform some work other than her past
work. Selian, 708 F.3d at 418; Burgess, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377, 383 (2d
Cir. 2004), amended in part on other grounds on reh’g, 416 F.3d 101 (2d Cir. 2005).
In some cases, the Commissioner can rely exclusively on the Medical-Vocational
Guidelines contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination
at the fifth step. Butts, 388 F.3d at 383. “The [Medical-Vocational Guidelines] take[ ] into
account the claimant’s RFC in conjunction with the claimant’s age, education and work

14

Exertional limitations are those which “affect [plaintiff’s] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling).” 20 C.F.R. § 404.1569a(b). In contrast, non-exertional
limitations are those which “affect only [plaintiff’s] ability to meet the demands of jobs other than the strength
demands,” including difficulty functioning because of nervousness, anxiety or depression, maintaining attention or
concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or
manipulative or postural functions, such as reaching, handling, stooping, climbing, crawling or crouching. 20 C.F.R.
§ 404.1569a(c).

19

experience. Based on these factors, the [Medical-Vocational Guidelines] indicate[ ] whether the
claimant can engage in any other substantial gainful work which exists in the national
economy.” Pagan v. Colvin, 15-CV-3117 (HBP), 2016 WL 5468331, at *9 (S.D.N.Y. Sept. 29, 2016)
(quoting Gray v. Chater, 903 F. Supp. 293, 298 (N.D.N.Y. 1995) (internal quotation marks
omitted; alterations in original)); see Butts, 388 F.3d at 383.
3. Treating Physician Rule
The “treating physician 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. 15 A
treating physician’s opinion will be given controlling weight if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in . . . [the] record.” 20 C.F.R. § 404.1527(c)(2); see also Shaw v. Chater,
221 F.3d 126, 134 (2d Cir. 2000); Diaz v. Shalala, 59 F.3d 307, 313 n.6 (2d Cir. 1995); Schisler v.
Sullivan, 3 F.3d 563, 567 (2d Cir. 1993).
“[G]ood reasons” must be given for declining to afford a treating physician’s opinion
controlling weight. 20 C.F.R. § 404.1527(c)(2); Schisler, 3 F.3d at 568; Burris v. Chater, 94-CV8049 (SHS), 1996 WL 148345, at *4 n.3 (S.D.N.Y. Apr. 2, 1996). The Second Circuit has noted
that it “do[es] not hesitate to remand when the Commissioner has not provided “good reasons”
for the weight given to a treating physician[’]s opinion.” Morgan v. Colvin, 592 F. App’x 49, 50

15

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 F.R. 5844-01, 2017 WL 168819, at *5844, *5867-68 (Jan. 18,
2017); accord Cortese v. Comm’r of Social Sec., 16-CV-4217 (RJS), 2017 WL 4311133, at *3 n.2 (S.D.N.Y. Sept. 27,
2017).

20

(2d Cir. 2015) (summary order) (quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004));
accord Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
Before an ALJ can give a treating physician’s opinion less than controlling weight, the ALJ
must consider various factors to determine the amount of weight the opinion should be given.
These factors include: (1) the length of the treatment relationship and the frequency of
examination, (2) the nature and extent of the treatment relationship, (3) the medical support
for the treating physician’s opinion, (4) the consistency of the opinion with the record as a
whole, (5) the physician’s level of specialization in the area and (6) other factors that tend to
support or contradict the opinion. 20 C.F.R. § 404.1527 (c) (2)—(6); Schisler, 3 F.3d at 567;
Mitchell v. Astrue, 07-CV-285 (JSR), 2009 WL 3096717, at *16 (S.D.N.Y. Sept. 28, 2009); Matovic
v. Chater, 94-CV-2296 (LMM), 1996 WL 11791, at *4 (S.D.N.Y. Jan. 12, 1996). Although the
foregoing factors guide an ALJ’s assessment of a treating physician’s opinion, the ALJ need not
expressly address each factor. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (summary
order) (“We require no such slavish recitation of each and every factor where the ALJ’s
reasoning and adherence to the regulation are clear.”).
As long as the ALJ provides “good reasons” for the weight accorded to the treating
physician’s opinion and the ALJ’s reasoning is supported by substantial evidence, remand is
unwarranted. See Halloran, 362 F.3d at 32-33; see also Atwater, 512 F. App’x at 70; Petrie v.
Astrue, 412 F. App’x 401, 406-07 (2d Cir. 2011) (summary order); Kennedy v. Astrue, 343 F.
App’x 719, 721 (2d Cir. 2009) (summary order). “The opinions of examining physicians are not
controlling if they are contradicted by substantial evidence, be that conflicting medical evidence
or other evidence in the record.” Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary
21

order) (citation omitted); see also Monroe v. Comm’r of Social Sec., 676 F. App’x 5, 7 (2d Cir.
2017) (summary order). The ALJ is responsible for determining whether a claimant is “disabled”
under the Act and need not credit a treating physician’s determination to this effect where it is
contradicted by the medical record. See Wells v. Comm'r of Soc. Sec., 338 F. App’x 64, 66 (2d
Cir. 2009) (summary order). The ALJ may rely on a consultative opinion where it is supported by
substantial evidence in the record. See Richardson, 402 U.S. at 410; Camille v. Colvin, 652 F.
App’x 25, 27-28 (2d Cir. 2016) (summary order); Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir.
1995); Mongeur, 722 F.2d at 1039.
4. Credibility
In determining a claimant’s RFC, the ALJ is required to consider the claimant's reports of
pain and other limitations, 20 C.F.R. §§ 404.1529, 416.929, but is not required to accept the
claimant’s subjective complaints without question. McLaughlin v. Secretary of Health, Educ. &
Welfare, 612 F.2d 701, 704–05 (2d Cir. 1980). “It is the function of the [Commissioner], not [the
reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses,
including the claimant.” Carroll v. Secretary of Health & Human Servs., 705 F.2d 638, 642 (2d
Cir. 1983); see Mimms v. Heckler, 750 F.2d 180, 185–86 (2d Cir. 1984); Aponte v. Secretary,
Dep't of Health & Human Servs., 728 F.2d 588, 591–92 (2d Cir. 1984). The ALJ has discretion to
weigh the credibility of the claimant's testimony in light of the medical findings and other
evidence in the record. Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
The regulations provide a two-step process for evaluating a claimant's subjective
complaints:
At the first step, the ALJ must decide whether the claimant suffers
from a medically determinable impairment that could reasonably
22

be expected to produce the symptoms alleged. 20 C.F.R. §
404.1529(b). That requirement stems from the fact that subjective
assertions of pain alone cannot ground a finding of disability. 20
C.F.R. § 404.1529(a). If the claimant does suffer from such an
impairment, at the second step, the ALJ must consider “the extent
to which [the claimant’s] symptoms can reasonably be accepted as
consistent with the objective medical evidence and other
evidence” of record. Id. The ALJ must consider “[s]tatements [the
claimant] or others make about [her] impairment(s), [his]
restrictions, [his] daily activities, [his] efforts to work, or any other
relevant statements [he] make[s] to medical sources during the
course of examination or treatment, or to [the agency] during
interviews, on applications, in letters, and in testimony in [its]
administrative proceedings.” 20 C.F.R. § 404.1512(b)(3); see also 20
C.F.R. § 404.1529(a); S.S.R. 96-7p.
Genier, 606 F.3d at 49. The ALJ must explain the decision to reject a claimant’s testimony “‘with
sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate
reasons for the ALJ’s disbelief and whether [the ALJ’s] decision is supported by substantial
evidence.’” Calzada v. Astrue, 753 F. Supp. 2d 250, 280 (S.D.N.Y. 2010). The ALJ’s credibility
determination is entitled to deference. See Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999)
(“After all, the ALJ is in a better position to decide issues of credibility.”); Gernavage v. Shalala,
882 F. Supp. 1413, 1419 n.6 (S.D.N.Y. 1995) (“Deference should be accorded the ALJ’s
determination because he heard plaintiff's testimony and observed his demeanor.”).
B. The ALJ’s Decision
The ALJ applied the five-step analysis described above and determined that Plaintiff was
not disabled. (Tr. 11–21). As an initial matter, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act though December 31, 2017. (Tr. 13). At step one, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset
date of November 21, 2013.
23

At step two, the ALJ found that Plaintiff had two severe impairments as defined in 20
C.F.R. § 404.1520(c): degenerative disc disease with herniation at L5-S1; and left L5-S1
radiculopathy. (Tr. 13). The ALJ found that although Plaintiff self-reported depression, there
was no diagnosis of depression or medical evidence demonstrating depression, and thus the
condition was not medically determinable in accordance with 20 C.F.R. § 404.1508. (Id.)
At step three of the analysis, the ALJ held that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of any listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18–19. (Id.) The ALJ gave special
consideration to Listing 1.04 for spinal disorders. (Id.) The ALJ found that Plaintiff’s impairment
did not meet or reach the severity required by Listing 1.04. (Id.)
The ALJ then determined that Plaintiff retained the RFC to perform sedentary work 16
“except the claimant can perform no more than occasional postural positions of crouching,
crawling, stooping, kneeling, balancing, and climbing stairs.” (Tr. 14). To reach his RFC
determination, the ALJ examined Plaintiff’s symptoms and the extent to which her symptoms
were reasonably consistent with the objective medical evidence and other evidence. (Tr. 14).
The ALJ also considered the opinions of the treating and consulting physicians. (Tr. 14–19).
The ALJ gave “little weight” to Dr. Klass’s opinion that Plaintiff would need to take
unscheduled breaks or alternate positions because he found that the opinion was not

16

The regulations define “sedentary work” as that work which:
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).

24

supported by objective signs or findings. (Tr. 18). The ALJ also gave “little weight” to Dr. Kaci’s
opinion that Plaintiff has marked limitations to lifting, carrying, and standing, and moderate
limitations to sitting, walking, bending, and squatting because he found that the opinion was
unsupported by Dr. Kaci’s own findings. (Tr. 18).
The ALJ gave “great” weight to independent medical examiner Dr. Zitzmann’s opinion,
which predated Plaintiff’s alleged onset date, and summarized that opinion as follows:
A series of independent medical examinations performed by Erik
Zitzmann MD (Exhibit 15F) indicated the presence of low back pain
and radiculitis associated with a work related injury in June 2012.
Symptoms of pain and limitation on his February 2013
examination were considered subjective and markedly
exaggerated. These included marked restriction of back motion
without palpable spasm, negative straight leg raising sitting with
markedly positive straight leg raising in the lying position, extreme
tenderness to even light touch and poor effo1t in motor testing in
the absence of any measurable atrophy (Exhibit 15F, pages 8 and
9). Noting the claimant’s stated reluctance to return to her former
work as a custodian, as it involved heavy duties with no light work
duties available, he indicated a partial marked degree of disability.
On his final examination in August 2013, Dr. Zitzman [sic]
referenced the absence of alarming MRI findings, but also noted a
mild degree of atrophy of the left calf, positive straight leg raising,
limitation of back movement, while also noting low back and left
sacroiliac tenderness on examination. He opined that the claimant
could lift and carry up to 20 pounds and was limited to no
repeated or prolonged bending (Exhibit 15F, page 4). He indicated
that she would be unable to return to her work as a custodian, as
only heavy work was available, but nevertheless indicated that the
claimant was capable of some work activity with the above-noted
restrictions.
(Tr. 17).
But later on in his decision, the ALJ determined that certain of Dr. Zitzmann’s opinions
should be given “little” weight, explaining that:

25

Dr. Zitzman [sic] opined that the claimant would be unable to work as a
custodian, because no light duty was available (Exhibit 5F). To the extent
that the opinions from this and other physicians refer to claimant’s
inability to do her past work, the opinions are consistent with the evidence
and the undersigned gives them great weight. To the extent, however,
that the opinions can be construed to opine that claimant is disabled
from any work, I give the opinions little weight because they are not
consistent with the longitudinal evidence, contemporaneous statements
made by the claimant that she was looking forward to other employment
(Exhibit 15F) [a]nd with the history of conservative treatment.
(Tr. 19) (emphasis supplied).
The ALJ also considered Plaintiff’s testimony and found that while Plaintiff’s medically
determinable impairments could reasonably be expected to cause some of her alleged
symptoms, a review of the entire case record showed that Plaintiff’s testimony regarding their
intensity, persistence, and limiting effects were not entirely credible. (Tr. 14, 18). The ALJ
pointed out that Plaintiff’s description of her daily activities and use of public transportation
indicated that she was not as limited as she claimed. (Tr. 18). The ALJ also found that Plaintiff’s
credibility was undermined by the fact that she was “not in any obvious pain or discomfort
when walking in or out of the hearing room or while sitting during the course of the hearing.”
(Id.) The ALJ further noted that Plaintiff “lacked the general physical appearance of a person
who might have been experiencing prolonged or severe pain,” but that he did not “rely solely
on the claimant’s appearance in assessing the consistency of her symptoms.” (Id.)
C. Analysis of the ALJ’s Decision
Plaintiff argues that remand is required because the ALJ failed to give controlling weight
to the opinions of Plaintiff’s treating physicians, Dr. Klass and Dr. Weigle, and that, therefore,

26

the ALJ’s assessment of Plaintiff’s RFC is not supported by substantial evidence. Defendant
argues that the Commissioner’s decision is supported by substantial evidence.
1. Treating Physician Rule
Remand is warranted because the ALJ misapplied the treating physician rule and thus
Plaintiff’s RFC is not supported by substantial evidence. The ALJ gave “little weight” or “some
weight” to Dr. Klass’s opinions, stating:
The undersigned has also evaluated an opinion from Dr. Steven
Klass, who opined, inter alia, that the claimant could work at a full
time job that does not require the use of her back and legs and
could lift up to 20 pounds. He indicated that the claimant could sit,
stand and walk up to 4 hours in an eight-hour workday, but must
get up and move around from sitting every 50 minutes (Exhibit 9F).
However, he also, indicated that the claimant’s condition did not
limit her ability to handle, reach, grasp or feel during an 8 hour
workday. To the extent that the opinions from Dr. Klass refer to the
claimant’s need to take unscheduled breaks or alternate positions,
the opinions are given little weight. They are not supported by the
objective clinical findings contained in his own treatment records
which show generally mild abnormalities with mostly mechanical
low back pain, no focal weakness and EMG/NCS studies, which he
interpreted as normal (Exhibits 1F and 10F). Subsequent EMG
nerve conduction studies yielded findings suggestive of L5-S1
radiculopathy, but the claimant nevertheless continued to indicate
her belief that she could return to some form of light duty work,
even if she couldn’t perfom her previous heavy job 17 (Exhibits 2F,
page 2 and 14F). Otherwise, the opinion is given some weight.
(Tr. 18) (emphasis added).

As will be discussed in § III.C.2, infra, the ALJ determined that Plaintiff’s subjective assertions of her pain were
not credible, but he credits her statement that she believed that she could return to light work. (See Tr. 21–22).
The ALJ asked Plaintiff what she thought she was “able to do . . . in light of [her] current situation?” (Tr. 35).
Plaintiff responded that she is “able to do light work . . . . I tried to, to go for secretarial.” But before the hearing
ended, Plaintiff told the ALJ that she “was very nervous” during the proceeding (Tr. 49). Plaintiff’s own assertion, in
response to the ALJ’s question, is not supported by the objective medical evidence and thus the ALJ further erred
in relying on portions of Plaintiff’s testimony while finding her testimony not credible.

17

27

Further, the ALJ concluded that Plaintiff could do sedentary work “except the claimant can
perform no more than occasional postural positions of crouching, crawling, stooping, kneeling,
balancing and climbing stairs.” (Tr. 14). Sedentary work “involves sitting,” with occasional
“walking and standing,” 20 C.F.R. § 416.967(a), but the “inability to sit for long periods of time”
is a limiting factor that can prevent a person from performing sedentary work. See 20 C.F.R.
§ 416.967(b). The ALJ’s analysis of the treating physician rule is flawed because, contrary to the
ALJ’s findings, Dr. Klass’s opinions regarding Plaintiff’s need for breaks and alternate positions
during the workday, including a sit/stand option, are supported by the objective medical
record, and are consistent with the opinions of Plaintiff’s other treating and consulting
physicians. Thus, the reasons the ALJ provided for discounting Dr. Klass’s opinions—that his
opinions are not supported by “objective clinic findings”—are not “good reasons” for declining
to afford Dr. Klass’s opinions controlling weight. (Tr. 18; see 20 C.F.R. § 404.1527(c)(2)).
The ALJ’s analysis of the treating physical rule as applied to Dr. Weigle, on the other
hand, was correct. Plaintiff argues that the ALJ should have given controlling weight to Dr.
Weigle’s opinion, (Pl.’s Mem. of Law at 18–19), but a review of the record shows that Dr.
Weigle did not provide any medical opinion on Plaintiff’s function abilities or limitations, and
thus there was no need for the ALJ to apply the rule to him. See 20 C.F.R. § 404.1527(a)(1)
(“Medical opinions are statements from acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.”).

28

a. The ALJ Misapplied the Treating Physician Rule in the Assessment of
Plaintiff’s Need for Unscheduled Breaks and a Sit/Stand Option
Contrary to the ALJ’s finding, there is evidence in the record to support Dr. Klass’s
opinion that Plaintiff would need unscheduled breaks and alternate positions during the
workday. As the ALJ recognized, Plaintiff suffers from degenerative disc disease. 18 Objective
evidence in the form of MRIs, EMG and NCV nerve tests, as well as treatment notes by Dr. Klass
and other physicians who examined Plaintiff, support Dr. Klass’s assessment of Plaintiff’s
inability to perform work without unscheduled breaks and alternate positions.
As an initial matter, the objective evidence in the form of MRIs of Plaintiff’s lumbar
spine from 2015 and 2016 provide clinical support for Dr. Klass’s conclusions regarding
Plaintiff’s inability to sit for extended periods of time. (Tr. 261, 283). For example, a 2015 MRI of
Plaintiff’s lumbar spine showed that there was a small bulge with extension of disc at L4-L5 and
a small posterior protrusion/extension of disc at L5/S1. (Tr. 261). In 2016, an MRI showed disc
material in both neural foramen at L5/S1 with “some compromise of the S1 nerve roots.” (Tr.
283). Moreover, as the ALJ noted, the EMG and NCV nerve tests were “highly suggestive of a
left L5/S1 radiculopathy,” even though they returned results within normal limits. (Tr. 296, see
Tr. 17). Thus, the ALJ’s conclusion that Dr. Klass’s opinion is “not supported by objective clinical
findings in his own records” is inaccurate. (Tr. 18).

18

Degenerative disc disease is associated with aching pain in the back or neck and may make everyday movements
difficult. “Degenerative Disc Disease in Adults,” available at http://nyulangone.org/conditions/degenerative-discdisease-in-adults (last visited Feb. 27, 2019); see also Cedars-Sinai, “Degenerative Disc Disease,”
https://www.cedars-sinai.org/health-library/diseases-and-conditions/d/degenerative-disc-disease.html (last
visited Feb. 27, 2019).

29

Further, Dr. Klass’s treatment notes support his opinion in this regard. Dr. Klass found
on several occasions that Plaintiff had back pain with pain radiating into her extremities. (Tr.
270, 272, 276, 278, 279). For example, as early as February 2013, Dr. Klass found that Plaintiff
had limited range of motion in her lumbar spine, limited ability to perform a straight leg raise,
and pain in her left buttock. (Tr. 183). Similarly, in June 2013, Dr. Klass found that her range of
motion in her lumbar region was reduced and that Plaintiff had limited ability to perform a
straight leg raise. (Tr. 180). Dr. Klass’s assessment that Plaintiff must “get up and move around
every 50 min[utes] and cannot sit again for 20 minutes, (Tr. 251), is thus supported by his own
treatment notes. 19 Even though these findings occur before Plaintiff’s alleged onset date of
November 21, 2013, they are consistent with a continuing injury predating and postdating the
onset date. (See, e.g., Tr. 269 (September 22, 2015 notes of Dr. Klass) (“[Plaintiff] [c]ontinues to
have severe low back pain”)).
The assessments by Plaintiff’s other physicians also support Dr. Klass’s opinion regarding
Plaintiff’s inability to sit for extended periods of time. Consulting examiner Dr. Kaci found in
August 2014 that Plaintiff’s cervical spine had limited range of motion and a positive straight leg
raise test at 45 degrees bilaterally. (Tr. 219). Thus, Dr. Kaci found that Plaintiff had moderate
limitations to sitting and walking and marked limitations to standing. (Tr. 220).
Similarly, in January 2016, Dr. Brotea examined Plaintiff and found that, based on a new
MRI, she had mild disc bulging at L3-4/L4-5, in addition to a small disc budge at L5-S1, and low

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The ALJ is correct that Dr. Klass’s treatment records generally showed “mild abnormalities with most mechanical
low back pain, no focal weakness,” and normal EMG and NVC studies. (Tr. 18). But the ALJ then explains that
subsequent EMG and NVC studies did yield findings “suggestive of L5-S1 radiculopathy.” (Id.)

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back pain based on this bulging. (T. 214). In April 2013, Dr. Brotea examined Plaintiff and found
that she had “severely depressed range of motion of the lumbar spine with flexion and
extension due to pain.” (Tr. 319). The assessments of Dr. Kaci and Dr. Brotea support Dr. Klass’s
opinion regarding Plaintiff’s physical limitations.
The ALJ’s misapplication of the treating physician rule was not harmless because Dr.
Klass’s assessment of Plaintiff’s ability to sit for extended periods of time would have changed
his analysis Plaintiff’s RFC. Accordingly, I recommend that remand is necessary for
reconsideration of Plaintiff’s RFC.
2. Evaluation of Plaintiff’s Credibility
Plaintiff also argues that the ALJ did not properly assess her credibility. (Pl.’s Mem. of
Law at 21). Specifically, Plaintiff argues that the ALJ’s determination that her subjective
allegations were inconsistent with her daily activities was improper. (Id. at 21–22). The ALJ
assessed Plaintiff’s credibility correctly.
As noted above, although the ALJ recognized that Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of her alleged symptoms, a review of
the entire case record showed that Plaintiff’s testimony regarding their intensity, persistence,
and limiting effects was not entirely credible. (Tr. 14). He also found that Plaintiff’s statements
regarding her pain and discomfort were not credible because her “behavior and presentation at
the hearing was inconsistent with the alleged severity of the symptoms.” (Tr. 18).
When considering the credibility of a claimant, “the ALJ’s task is to consider the extent
to which his self-reported symptoms could ‘reasonably be accepted as consistent with the
objective medical evidence and other evidence of record.’” Tricarico v. Colvin, 681 F. App’x 98,
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101 (2d Cir. 2017) (quoting Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam)). “‘The
ALJ is free to accept or reject testimony’ of a witness, provided that when a witness is found not
to be credible, the ALJ provides findings with ‘sufficient specificity to permit intelligible plenary
review of the record.’” Tricarico, 681 F. Appx. at 101 (quoting Williams v. Bowden, 859 F.2d 255,
260-61 (2d Cir. 1988)).
The ALJ concluded that Plaintiff’s claimed pain was not consistent with her testimony, as
she testified that she was able to perform self-care activities and take public transportation as
needed. (Tr. 18). The ALJ’s finding is consistent with the objective medical record, which is
devoid of any mention that Plaintiff cannot perform certain self-care activities or take public
transportation as needed. Importantly, the medical record does not indicate that Plaintiff is in
constant pain; rather, the indication is that Plaintiff cannot sit for extended periods of time
without pain, requiring her to stand. Therefore, the ALJ did not err because his finding
regarding the credibility of Plaintiff’s subjective allegations concerning her daily activities and
pain was consistent with findings in the record.
Even though the ALJ was correct in finding that Plaintiff’s subjective allegations were not
entirely credible, the ALJ’s determination of Plaintiff’s RFC was still incorrect because he failed
to properly apply the treating physician rule. Because of this failure, the Court does not need to
further analyze the ALJ’s determinations. The Court does not recommend any findings as to
Plaintiff’s disability (or lack of disability), nor does the Court recommend any findings as to
Plaintiff’s RFC. Instead, the Court recommends remand to the Commissioner so that the
treating physician rule can be properly applied to an analysis of Plaintiff’s RFC.

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IV.

Conclusion
For the foregoing reasons, I respectfully recommend that the Commissioner’s motion

for judgment on the pleadings be DENIED, and that Plaintiff’s motion for judgment on the
pleadings be GRANTED to the extent that the case be REMANDED to the Commissioner for
further proceedings consistent with this Report and Recommendation.
V.

OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have

fourteen (14) days (including weekends and holidays) from receipt of this Report to file written
objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A
party may respond to any objections within fourteen (14) days after being served. Such
objections, and any responses to objections, shall be addressed to the Honorable Analisa
Torres, United States District Judge. Any requests for an extension of time for filing objections
must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER
OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140,
155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Respectfully submitted,

s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: March 1, 2019
New York, New York
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