Johnson v. Colvin

Filing 24

MEMO ENDORSEMENT adopting 23 Report and Recommendation re: 19 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin, 16 Motion for Judgment on the Pleadings filed by Gary G Johnson. ENDORSEMENT: No objections to this Report & Recommendation (the "R&R") have been filed. I have reviewed it for clear error and find no error, clear or otherwise. Accordingly, the R&R is adopted as the decision of the Court. Defendant's motion is DENIED and Plaintiff's motion is granted to the extent that the matter is hereby REMANDED to the Commissioner for further administrative proceedings consistent with the R&R. (Signed by Judge Cathy Seibel on 9/18/2017) (mro)

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No objections to this Report & Recommendation (the "R&R") have been filed. I have reviewed it for clear error and
find no error, clear or otherwise. Accordingly, the R&R is adopted as the decision of the Court. Defendant's motion
is DENIED and Plaintiff's motion is granted to the extent that the matter is hereby REMANDED to the
UNITED STATES DISTRICT COURT Commissioner for further administrative proceedings consistent
SOUTHERN DISTRICT OF NEW YORK with the R&R.
-X

GARY G. JOHNSON,

Plaintiff, REPORT & RECOMMENDATION
-against- 16 Civ. 1729 (CS) (FED)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

September 18, 2017
I. INTRODUCTION
Plaintiff Gary G. Johnson ("Plaintiff," or "Claimant") brings this action pursuant to 42
U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security ("Defendant"

or the "Commissioner") denying Plaintiffs application for disability insurance benefits ("DIB").
Dkt. 1. The matter is before me pursuant to an Order of Reference entered January 6, 2016. Diet.
10. Presently before this Court are the parties cross-motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Dkts. 16 (Plaintiffs motion), 17
(Plaintiffs memorandum of law in support), 19 (Defendant's cross-motion), 20 (Defendant's
memorandum of law), 21 (Plaintiffs reply). For the reasons set forth below, I respectfully
recommend that Defendant's cross-motion be DENIED, and that Plaintiffs cross-motion be

GRANTED.

II. BACKGROUND
The following facts arc taken from the administrative record ("R.") of the Social Security
Administration, Dkt. 12.

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A. Application History
On Januaiy 9, 2013, Plaintiff filed a Title II application for DIB for a period of disability.
R. 137-43. Plaintiff also filed a Title XVI application for supplemental security income ("SSI")
on January 9, 2013. R. 144-49. In both applications, Plaintiff alleged disability beginning on
December 30, 2007 ("Alleged Onset Date"). R. 71, 75. On May 1, 2013, Plaintiff was found
disabled as of January 9, 2013 for his Title XVI claim. R. 83-84. Plaintiff filed a written request
for a hearing on his DIB application on May 29, 2013 alleging that his disability began on
December 30, 2007. R. 91-92, 127, 137-49, 161.
On June 24, 2014, the administrative law judge ("ALJ") held a video hearing. R. 25-69.

Plaintiff appeared in Goshen, New York and the ALJ presided over the hearing from White
Plains, New York. Id. On September 3, 2014, the ALJ issued a decision denying Plaintiffs DIB
application. R. 25-39. On October 29, 2014, Plaintiff timely filed a Request for Review of a
Hearing Decision/Order by the Appeals Council and a request to present new and material
evidence. R. 22-24. On January 6, 2016, the Appeals Council denied Plaintiffs request for
review. R. 1-9. On April 4, 2016, the Appeals Council granted PlaintifTs request for additional
time to represent more information and further argument. R. 1. On July 19,2016, the ALJ' s
decision became the Commissioner's final decision when the Appeals Council denied Plaintiffs
request for review because it had not received any additional arguments or evidence for
consideration and therefore "found no reason under our rules to review the Administrative Law
Judge's decision." R. 1-4. Plaintiff filed this action on March 7, 2016. Dkt. 1.

Plaintiff was born on March 19, 1951. R. 70, 75. Plaintiff filed a claim for disability due
to emphysema, high cholesterol, and osteoarthritis in the lower back. R. 70, 75,164. He has not
worked since his Alleged Onset Date. R. 71, 76.

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B. Medical History
1. Before Plaintiff's alleged onset date

a. 1997-2004
On June 30, 1997, a cervical spine magnetic resonance imaging scan ("MRI") showed
moderate multilevel degenerative joint disease. R. 513. Less than two years later, a March 27,

1999 MRI of the lumbar spine showed partial disc degeneration of the Ll-2 intervertebral disc
and early degeneration of the L2-3, L3-4 and L4"5 intervertebral discs, all with lateral osteophyte
(bone spurs) formation, and moderately advanced degeneration of the L5-S1 intervertebral disc,
but no disc hemiation or spinal stenosis (narrowing of the spinal canal). R. 514.

Almost three years later, in February 2002, Plaintiff ran out of his prescription for
Vicodinand complained to Dr. James Gumiak of severe "10/10" non-radiating pain in his mid
and lower back. R. 490. On March 6, 2002, a chest x-ray showed probable hyper-aeration
(overinflation of the lung) but no acute pulmonary process. R. 515. More than four months
later, on July 30, 2002, an MRI of Plaintiff s lumbar spine showed: at Ll-2 moderate
degenerative disc narrowing; at L5-S1 severe degenerative narrowing and broad-based posterior

osteophyte and mild facet (joint) arthritis; at L3-4 and L4-5 early disc desiccation (dehydration);
at L4-5 mild bulging of the disc annulus and mild facet arthritis. R. 516. The degenerative
changes of the Ll-2 and L5-S1 intervertebral discs at levels were unchanged since the 1999
MRI, and there was no focal disc hemiation or canal or foraminal encroachment. R. 516. On

September 27, 2002, Dr. Joseph Salerno wrote that Plaintiff had arthritis and chronic back pain
confirmed by severe degenerative disc disease at several levels. R. 540. Dr. Salerno also wrote
that he had counseled plaintiff to return to school for graduate studies and pursue a career that
did not involve manual labor because Plaintiff would need to take prescription analgesics on a

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regular basis to do such work and "as time goes on, he [would] require[] additional doses of such

medication," and such work "might jeopardize [his] health and ability to function normally in the
future." R. 540.

More than two years later, in October 8, 2004, an MRI of the lumbar spine showed "no
significant change," mild scoliosis, disc degeneration advanced at Ll-2 and L5-S1, no disc
hemiation, and no significant degrees of canal stenosis. R. 517, 539.

b. 2006
On April 7,2006, a computerized tomography ("CT") scan of Plaintiff s chest revealed
an eight mm left lung nodule. R. 300, 323, 503. On April 25, 2006, a PET/CT examination
showed that the hmg nodule was not hyper-metabolic, and there was no evidence of increased
metabolism in the neck, chest, abdomen, pelvis, or proximal thigh. R. 294, 325. On April 26,
2006, Plaintiff underwent spirometry testing,1 R. 276-80, which showed "good efforts" prebronchodilator. R. 276. Plaintiffs forced expiratory volume for one second ( FEV1 ) was 114

percent of predicted, and his FEVl/(forced vital capacity ("FVC")) was 97 percent of predicted.
R. 276.

On April 26, 2006, Dr. Lean Harris evaluated the recent CT and PET scans and noted
that Plaintiff, who had been a heavy smoker for many years, denied fever chills, sweats, cough,
and sputum, and could walk for three miles and climb two flights of stairs without difficulty. R.
301-02. Dr. Harris's review of systems was negative and his physical examination of Plaintiff

Spirometry is a test used to assess how well your lungs work by measuring how
much air you inhale, how much you exhale and how quickly you exhale in a bronchodilator.
Spirometry is used to diagnose asthma, chronic obstmctive pulmonary disease ("COPD") and
other conditions that affect breathing. Mayo Clinic Staff, "Tests and Procedures, Spirometry,"
Mayo Clinic (July 11, 2014), available at http://www.mayoclinic.org/testsprocedures/spirometry/basics/defimdon/prc-20012673.

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was unremarkable. R. 301. Although pulmonary function tests showed normal spirometry, they

also showed low diffusion capacity (the transfer of gas from air in the lung to the red blood cells
in lung blood vessels) of 51 percent of predicted. R. 302. As a result, Dr. Harris conducted an
exercise oximetry, which showed that Plaintiffs oxygen saturation was good at rest but fell as
low as 88 during exercise before returning to normal at the conclusion of the exercise. R. 302.

Dr. Harris diagnosed Plaintiff with chronic obstmctive pulmonary disease ("COPD ) with low
diffusion capacity and decrease in oxygen saturation during exercise. R. 302. Dr. Harris also
advised that, despite the negative PET scan, the 8 mm left mid lung nodule in a heavy smoker
"needs to be followed serially over 3 years" with CT scans. R. 302. On July 26, 2006, a chest
CT scan showed a stable mid lung nodule and moderate-to-severe emphysematous disease
involving both the upper and mid-lung fields. R. 288-89, 504.
c. 2007
On February 3, 2007, Plaintiff complained of back pain to Dr. Henry C. Okere at Stat
Health Medical Service. R. 486. Dr. Okere prescribed Oxycodone. R. 486, 538. A February
20, 2007 chest CT scan showed a stable pulmonary nodule with moderate-to-severe
emphysematous disease unchanged since April 2006. R. 233-34, 235-36. On August 8, 2007,
Plaintiff complained to Dr. Doug Schottenstein, a pain management specialist at Seaport
Orthopaedic Associates, of back pain. R. 455, 457. Dr. Schottenstein performed a bilateral,
selective nerve root injection at the L4 intervertebral disc and prescribed Oxycontin, Vicodin,
Celebrex and physical therapy. R. 455,457.

On August 29, 2007, Plaintiff continued to complain of back lower back pam and three
weeks later at a follow-up appointment with Dr. Schottenstein, he received an epidural steroid
injection with fluoroscopy at the L5-S1 inter vertebral disc. R. 445-50. In September and

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October 2007, Plaintiff returned to Dr. Schottenstein for back treatment for which he was
prescribed Oxycodone-based medication and physical therapy. R. 430-40.

A September 9, 2007 MRI examination of Plaintiff s cervical spine showed multilevel
degenerative disc disease with spondylosis and arthrosis of the joints at the C3-4 through C6-7
intervertebral discs, multilevel foraminal compromise bilaterally, and left-sided facet
osteoarthritis at the C6-7 level, but no disc hemiation, cervical cord compression, or spinal

stenosis. R. 507. A September 19, 2007 MRI of Plaintiff s lumbar spine showed scoliotic
cui'vature, degenerative disc disease with disc space narrowing at levels T12-L1, Ll-2, and L5Sl, mild disc space narrowing at L4-5, and facet osteoarthritis at levels L4-5 and L5-S1, but no
disc hemiation, foraminal stenosis, spinal stenosis, spondylolysis, spondylolthesis, or any
significant change from the 2004, MRI. R. 508. On November 26, 2007, Dr. Schottenstein

performed a bilateral median nerve branch block at levels L3, L5 and Sl to address Plaintiffs
lower back pain. R. 424-29. On December 12, 2007, Dr. Schottenstein performed a right lumbar
medial branch radiofrequency ablation (a procedure used to reduce pain) at levels L3, L4, L5 and
Sl to address Plaintiffs lower back pain. R. 413-22.
2. After Plaintiffs alleged onset date
On January 21, 2008, Dr. Schottenstein performed a left lumbar medial branch
radiofrequency ablation at levels L3, L4, L5, and Sl to address Plaintiffs lower back pain. R.
407-12. On February 20, 2008, Dr. Schottenstein performed a bilateral sacroiliac joint steroid
injection. R. 401-06.

A March 13, 2008 chest CT scan showed extensive interstitial disease peripherally in
both lung fields when compared to the study conducted in February 2007 and showed that
Plaintiffs left lung nodule measured 7 mm instead of 8 mm but revealed no other changes, and

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no change in his COPD. R. 232, 509. A March 14, 2008 chest CT scan showed a stable left lung
nodule and no change in the COPD when compared to February 2007. R. 281, 509. On March
19, 2008, Dr. Schottenstein performed a bilateral sacroiliac joint steroid injection. R.395-400.

On April 9 and 16, 2008, Dr. Schottenstein performed a right and a left sacroiliac joint
radiofrequency ablation, respectively. R. 458, 459. On May 14, 2008, Dr. Schottenstein

continued prescribing Plaintiff with Oxycodone even though Plaintiff reported that the last
procedure had provided 50 percent pain relief. R. 390-94. On June 14, 2008, Plaintiff rated his

pain as 8/10 but reported that medication was alleviating his pain. R. 385-89. On July 14,
2008, Plaintiff complained of mild lower back pain aggravated by sitting, standing and running,
but reported that medications were alleviating his pain. R. 380-84. On August 13, 2008,
Plaintiff rated his lower back pain as "8/10." R. 375-79. On August 25, 2008, Dr. Schottenstein
performed a bilateral selective nerve root injection at level L4. R. 374.
On October 6, 2008, Plaintiff rated his lower back pain as "8/10." R. 359-63. On
November 5, 2008, Plaintiff rated his lower back pain as "10/10." R. 364-368. On November
12, 2008, Dr. Schottenstein performed alumbardiscographyatL3-L4, L4-L5, andL5-Sl. R.

356-57. A November 12, 2008 CT scan of Plaintiff s lumbar spine showed multilevel disc
disease and degenerative changes. R. 358. On November 17, 2008, Dr. Schottenstein noted that
"Ft feels well " R. 355. On December 3, 2008, Plaintiff rated his lower back pain as "8/10." R.
349-53.

In January 2009 through March 2009, Plaintiff continued to rate his lower back pain as
"8/10," R. 333, 339, 344, and Dr. Schottenstein continued refilling Plaintiffs prescriptions for
Oxycodone and Celebrex. R. 336, 338, 342, 347. On March 30, 2009, Plaintiff complained of
back pain that was aggravated by cold weather, lower extremity pain, and paresthesia (abnormal

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sensation such as tingling, tickling, pricking, numbness or burning). R. 333. Plaintiff was
diagnosed with lumbar radiculopathy, sacroiliac arthropathy and facet osteoarthritis. R. 336. At

an April 27, 2009 appointment with Dr. Adam C. Carter at Downtown Physical Medicine &
Rehabilitation, Plaintiff reported no change in his lower back symptoms and that his medication
helped managed his symptoms, but on examination he continued to have painful and limited
range of motion about the lumbar spine. R. 331. Dr. Carter diagnosed chi'omc low back pain
and continued the prescriptions for Oxycodone and Celebrex. Jd. In August, September and
October 2009, Dr. Gurniak prescribed Tramadol and Ultram for Plaintiffs back pain. R. 483-85,
531,535.
On July 11, 2012, Dr. Gumiak prescribed Ultram for Plaintiffs lower back pain. R. 48182. A chest x-ray performed that day showed interstitial lung markings and evidence of
hypermflation. R. 238, 527. Dr. Gumiak diagnosed Plaintiff with chronic lower back pain,
degenerative disc disease, osteoarthritis, and COPD. R. 481.
On January 7, 2013, Dr. Gumiak reviewed Plaintiffs blood work. R. 480. On February
26, 2013, Dr. Gumiak found that Plaintiffs lungs and heart were normal. R. 479. On May 10,

2013, Dr. Gurniak diagnosed Plaintiff with COPD, chronic low back pain, and degenerative disc
disease. R. 478. In July, Plaintiff continued to complain of back pain, R.476,477,and Dr.
Gurniak noted that an MRI showed disc narrowing and prescribed Percocet and Ultram. R. 476,

477. During monthly visits in August through December 2013, Plaintiff continued on Percocet
and Ultram. R. 470, 471, 472,473,474,475.
In February and March 20 14, Plaintiff complained of achiness all over due to the weather
and lower back pain, respectively, and continued his prescriptions for Ultram and Percocet. R.
466, 464. In April 2014, Dr. Gumiak saw Plaintiff for an upper respiratory infection. R. 462.

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a. Consultative Internal Medicine Examination

On April 16, 2013, Dr. Ifdkhar Ali conducted a consultative internal medicine
examination and found that lifting, bending, and rotating Plaintiffs back in certain directions
made Plaintiff feel worse, the pain radiated to both hips when he walked more than 200 feet and
then lasted up to thirty minutes, and was worse on the left side. R. 303-06. At the consultative

examination, Plaintiff reported having low back pain since 1997 with an intensity of 5-8/10 that
felt better with medication. R. 303. Plaintiff also reported having numbness in his feet for seven
years that was not alleviated by medication, and shortness of breath due to emphysema since

2004 that was brought on by climbing one flight of stairs, walking up a hill or humidity, and
otherwise worsened with exertion. Id. Plaintiff reported that he had smoked until 2005 and that
his current medications included Oxycodone, Aspirin and Tramadol. R. 304. Plaintiff stated that
he could cook, clean, do laundry, shop, shower, bathe, and dress himself, and spent his time
watching TV, listening to the radio, reading, and socializing with friends. R. 304.
On examination. Plaintiff had a normal gait and stance, could walk on his heels and toes
without difficulty, could perform a squat to 90 percent, could ambulate without assistive devices,
needed no help changing for the examination or getting on and off the examining table, and was
able to rise from a chair without difficulty. R. 304. Dr. AU found that Plaintiffs ears, nose,
throat, neck, chest, lungs, heart, musculoskeletal system, neurologic system and extremities were
unremarkable and that Plaintiff had a full range of motion in the cervical and lumbar spine and
all joints, no scoliosis, negative straight leg raising bilatemlly, no sensory or strength deficits, no
atrophy, intact hand and finger dexterity, and fall grip strength bilaterally. R. 305. That day,
Plaintiff also had normal spirometry and pulmonary function tests, and a lumbar spine x-ray,
which showed thoracolumbar dextroscoliosis (curvature of the spine to the right) with

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degeneradve spondylosis/degenerative disc disease at Ll-2, L2-3, L4-5 and L5-S1, and facet
joint arthropathy. R. 305, 307-10. Dr. All diagnosed low back pain, numbness in the feet and
shortness of breath, and reported that Plaintiffs prognosis was stable. R. 306. Based upon his

physical examination, Dr. All opined that Plaintiff had no physical restrictions but that he should
avoid respiratory irritants due to his history ofemphysema. R. 306.
C. Hearing Testimony

On June 24, 2014, Plaintiff appeared before the ALJ Robert Gonzalez represented by
counsel, Gary J. Gogerty. R. 40-69. Plaintiff was 63 years old at the time of his administrative
hearing. R. 45. Plaintiff testified he received a Master's degree fi-om the Tri-State College of
Acupuncture In Manhattan, New York. R. 45. At the hearing, Plaintiff submitted four pages of
records from Dr. Kogen, a 2004 MRI from Dr. Salemo, and a handwritten narrative dated

September 27, 2002. R. 43-44. Plaintiff testified that after his Alleged Onset Date he took a
part-time job at the Middletown Physical Medicine and Rehabilitation performing acupuncture
but was terminated for failing to satisfy the employer with the pace of his work. R. 46. Plaintiff
testified that he did not get regular medical coverage because he was uninsured from 2007 until
recently. R. 47. He testified that he received the most intensive care from Seaport Medical
because "they tried a number of procedures on me for my back and had me on some very ... very
intense medicine, Oxycodone 160 milligrams a day." R. 47. Plaintiffs ex-wife used to have
health insurance until she was laid off during the 2008 economic crisis. R. 47. Plaintiff testified
that he was seeing Dr. Schottenstein as a pain management doctor and Dr. Gurniak, who works
out of a clinic and charged "only $85 for a visit." R. 48. Plaintiff testified that the reason there

is a gap between his first visit with Dr. Gumiak and when he went to Seaport Orthopedics is that
"there was no benefits, no work, and no way to get b'eatment." R. 49. The ALJ questioned

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Plaintiff about his work history. R. 49. Plaintiff had self-employment earnings of $24,000 in
1999 and $22,000 in 2000 for running his remodeling business, which involved construction
work, building bathrooms, installing kitchens, remodeling basements, installing cabinets. R. 4950. Although a homeowner would typically contract their own tile person, when Plaintiff was
remodeling bathrooms, he would have to take the vanity out, take the toilet bowl out, or take an
old shower out. R. 51. He would do some of it and hire help for the rest of it. R. 51. Plaintiff

testified that he did not have any earnings for 2002, 2003 and 2004 because he was at school for
acupuncture. R. 51.

Plaintiff testified that on a typical day after he gets up in the morning, he usually takes
medicine "because I really can't get going without it. And wait, you know, a couple hours until
that kicks in, I take my dog out and walk her around the block, come back, have something to
eat." R. 52. He testified that he hates waking up because he is hurting on a scale of 7 or 8 out of
10 and cannot function until the medication kicks in. R. 52. After a couple hours, Plaintiff
testified his pain would lessen to a 4 or 5 out of 10 because "it's always hurting." R. 52.
Plaintiff testified that when he walks around the block, he suffers from shortness of breath, his
legs feel heavy, and he feels like he doesn't have any strength. R. 53-54. Plaintiff uses an
inhaler for his shortness of breath. R. 54. Plaintiff testified that three of his lumbar discs are
basically gone entirely and the rest are "like crushed raisins." R. 54-55. Plaintiff testified that

his symptoms were burning pain that goes into his hips and down his legs and his right foot is
always numb. R. 55. He cannot pick anything up because it causes too much pain to his back.

R. 56. Plaintiff testified that beginning in 2007 and 2008, he could not be on task for the eighthour day. R. 58. Plaintiff testified that he is unable to work [njot because he didn't want to
work, but I can t I just can't do it R. 58.

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Plaintiff testified that he had a number of unsuccessful procedures meant to deaden his
nerves to pain. R. 58-59. He also had a couple of cortisone injections that helped some. R.
59. Plaintiff testified that his pain management was largely through prescription dmgs. R. 59.
D. Vocational Expert Testimony
A vocational expert, Ms. Pomeroff, testified at Plaintiffs June 24, 2014 administrative
hearing. R. 61-69. The ALJ asked the vocational expert to consider hypothetically whether a
person of Plaintiffs age, education, and work experience, who was able to perform a full range

of medium work with the following additional limitations: 'The person can only frequently stoop
and must avoid concentrated exposure to dust, fumes, and noxious gases," would be able to
perform Plaintiffs past work. R. 61-69. The vocational expert found that Plaintiff would still be
able to perform the acupressurist position, Dictionary of Occupational Titles (4 ed. Rev'd 1991)

("DOT"), Job Code 079.271-014, medium SVP 5, skilled. R. 63-64, but would be precluded
from performing his past house repair work. R. 64. The vocation expert testified that such an

individual would be able to perform the following positions: (i) dining room attendant, DOT
Code 311.677-018, of which there are 110,000 jobs in the national economy; (ii) sandwich
maker, DOT Code 317.664-010, of which there are 100,000 jobs in the national economy; (iii)
patient transporter, DOT Code 359.677-014, of which there are 38,000; and (iv) merchandise
delivered, DOT Code 299.477-010, of which there are 100,000 jobs in the national economy. R.
64-65.

III. THE ALJ'S DECISION
The ALJ issued a decision on September 3, 2014 following the standard five-step inquiry
used for determining disability. R. 28-36. In the first step of the inquiry, the ALJ determined

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that Plaintiff had not performed substantial gainful activity since the December 30, 2007 alleged
onset date. R. 30.

At step two, the ALJ next found that Plaintiffs medical issues — emphysema,
osteoarthritis, lumbar and cervical degenerative disc disease and scoliosis — rose to the level of
"severe." R. 31.

At step three, further considering the medical severity of Plaintiff s impairments, the ALJ
decided that Plaintiff did not meet or medically equal the "Appendix 1" impairments, which
compel a finding of disability. R. 31.
At step four, the ALJ considered "the entire record" and made a finding about Plaintiffs
residual functional capacity. R. 31. The ALJ found that "the claimant retained the residual
functional capacity to perform a medium work as defined in 20 C.F.R. 404.1567(c) and
416.967(c) except the claimant was limited to frequently stooping and no concentrated exposure
to dust fumes and noxious gases." R. 31. In making this determination, the ALJ considered "all
symptoms and the extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence..." R. 31.
The ALJ found that "the claimant's medically determinable impairments could have
reasonably been expected to cause the alleged symptoms; however, the claimant s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible." R. 32. In making this determination, the ALJ explained, "the claimant has described
daily activities that are not limited to the extent one would expect, given the complaints of
disabling symptoms and limitations.. .treatment has been essentially routine and/or conservative
in nature ... the record does not contain any opinion from treating or examining physicians
indicating that the claimant was disabled during the relevant period ... claimant's work history

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shows that claimant worked only sporadically prior to the alleged disability onset date, which
raises the question as to whether the claimant's continuing unemployment was actually due to
the medical impairments." R. 32-35.

In making the residual functional capacity determination, the ALJ also considered: (i) the
treatment notes and opinions from Plaintiffs physician, Dr. Joseph Salerno, R. 32; (ii) CT scans,

(iii) PET scans; (iv) MRI studies; (v) treatment records from Downtown Physical Medicine and
Rehabilitation; (vl) treatment notes and opinion evidence from Dr. Doug Schottenstein; (vii)
treatment notes and opinions from Dr. James Gumiak; and (viii) treatment and opinion evidence
from consultative examiner, Dr. Iftikhar All. R. 34.
The ALJ gave "great weight" to the opinion of the consultative examiner, Dr. Ali,
because it was "well supported by the physical examination findings, the clinical and diagnostic
evidence of record, the conservative treatment history, as well as the claimant's own testimony

regarding his full activities of daily living." R. 34. The ALJ did not specify the weight he
accorded Dr. Salerno or Dr. Gumiak's opinions.
After making the above findings, the ALJ considered whether the claimant would be able
to perform any past relevant work and found that "claimant was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy." R. 35-36.
Following these conclusions, the ALJ reached the end of the five-step process,
determined that Plaintiff was not disabled, and denied his application. R. 36.

IV. LEGAL STANDARD
A. Standard of Review
In reviewing a decision of the Commissioner, a district court may enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision

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of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
42 U.S.C. § 405(g). "It is not the function of a reviewing court to decide de novo whether a
claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). Rather, the court's

review is limited to "determin[ing] whether there is substantial evidence supporting the
Commissioner's decision and whether the Commissioner applied the correct legal standard."

Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The substantial evidence standard is "even more" deferential than the 'clearly erroneous'
standard. Bmnlt v. Social Sec. Admin, 683 F.3d 443, 448 (2d Clr. 2012). The reviewing court
must defer to the Commissioner's factual findings, and the Commissioner's findings of fact are
considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g).
"Substantial evidence" is "more than a mere scintilla" and "means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Lamay v. Commissioner of

Soc. See., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). "In determining whether the agency's findings are
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.

Talavera v. Asfrue, 697 F.3d 145,151 (2d Cir. 2012) (internal quotations omitted). "When there
are gaps in the administrative record or the ALJ has applied an improper legal standard," or
when the ALJ's rationale is unclear in light of the record evidence, remand to the Commissioner
"for farther development of the evidence" or for an explanation of the ALJ's reasoning is
warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

B. Statutory Disability
A claimant is disabled under the SSA when he or she lacks the ability "to engage in any

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substantial gainful activity by reason of any medically detex-minable 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)(l)(A). In

addition, a person is eligible for disability benefits under the SSA only if:
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.

Id. § 423(d)(2)(A).
A claimant's eligibility for SSA disability benefits is evaluated pursuant to a five-step
sequential analysis:

1. The Commissioner considers whether the claimant is currently
engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a
"severe impainnent" which limits his or her mental or physical

ability to do basic work activities.
3. If the claimant has a severe impairment, the Commissioner must
ask whether, based solely on medical evidence, claimant has an

impairment listed in Appendix 1 of the regulations. If the claimant
has one of these enumerated impairments, the Commissioner will
automatically consider him disabled, without considering vocational
factors such as age, education, and work experience.
4. If the impairment is not listed in the regulations, the
Commissioner then asks whether, despite the claimant's severe
impairment, he or she has residual functional capacity to perform
his or her past work.
5. If the claimant is unable to perform his or her past work, the
Commissioner then determines whether there is other work which
the claimant could perform.
Rolon v. Commissioner ofSoc. See., 994 F. Supp. 2d 496, 503 (S.D.N.Y. 2014); see 20

C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). The claimant bears the burden of proof as
to the first four steps of the process. See Green-Yozmger v. Barnhart, 335 F.3d 99, 106 (2d Cir.

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2003). If the claimant proves that his impairment prevents him from performing his past work,

the burden shifts to the Commissioner at the fifth and final step. See id. At the fifth step, the
Commissioner must prove that the claimant is capable of obtaining substantial gainful
employment in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005);

20C.F.R.§404.1560(c)(2).

V. ASSESSING THE ALJ'S FINDINGS
A. Treating Physician Rule

Plaintiff argues that the ALJ misapplied the treating physician rule by failing to consider
Dr. Salemo's opinion or evaluate any relevant factors under 20 C.F.R. § 404.1527 (c)(2)-(6). P.

Mem. at 10-15 (citing Merriman v. Colvin, No. 14 Civ. 3510, 2015 US. Dist LEXIS 124691,at
^\5 (S.D.N.Y. Aug. 14, 2015). Defendant contends that the ALJ properly applied the treating
physician rule because the ALJ was not required to award controlling weight to Dr. Salemo's

2002 opinion since (i) it preceded the alleged disability onset date by five years, R. 540; and (ii)
it was not an "opinion" but rather, speculation that if Plaintiff continued unspecified manual
labor. Plaintiffs health might deteriorate, Stottlar v. Colvin, No. 13 Civ. 00047, 2014 U.S. Dist.
LEXIS 111937, at *48 (N.D.N.Y. Aug. 13, 2014). D. Mem. at 12, 21-23.

Plaintiff also argues that the ALJ erred in failing to specify what weight, if any, he gave
to Dr. Gumiak. P. Mem. at 14-15. Defendant responds simply that the ALJ accurately described
Dr. Gumiak's records and the record contained sufficient other evidence supporting the ALJ's
determination. D. Mem. at 23.

When considering the record evidence, the ALJ must give deference to the opinions of a

claimant's treating physician. 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

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not inconsistent with the other substantial evidence in ... [the] record. 20 C.F.R. §

416.927(c)(2); see also Shaw v. Chater, 221 K3d 126, 134 (2d Cir. 2000). Before an ALJ can
give a treating physician's opinion less than controlling weight, the ALJ should consider the
following factors to determine the amount of weight the opinion should be given: (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. §

416.927(c)(2)-(6); Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). 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. Astrzie, 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. ")(citing Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.

2004) (per curiam)). As long as the ALJ provides "good reasons" for the weight accorded to the
treating physician's opinion and the ALJ's reasoning is supported by substantial evidence,
remand is unwarranted. See Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004).
1. Dr. Salerno

Plaintiff argues that the ALJ erred by substituting his own lay interpretation of diagnostic
tests even though Dr. Salemo is better suited to opine on the subject. P. Mem. at 13-15 (citing
Balsamo v. Chater, 142 F.3d 75, 80-81 (2d Cir. 1998); Meadors v. Astrue, 370 Fed. App'x. 179,

183 (2d Cir. 2010)). Defendant, on the other hand, contends that the ALJ did not impermissibly
substitute his own lay opinion because the record contained sufficient other evidentiary support

of the ALJ's determination and because the ALJ weighed all of that evidence when maldng his

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RFC determination. D. Mem. at 23. Plaintiffs argument fails because Plaintiff complains of the
ALJ's recitation ofDi\ Salemo's own words, which does not constitute a "substitution of his
own lay interpretation of a diagnostic test."

Plaintiff then argues that the ALJ improperly applied the treating physician rule to Dr.
Salemo's opinions because he limited his consideration of Dr. Salemo's medical opinion
evidence to the following sentences: "[ajlthough there is no evidence of any treatment, two years
later, [an] October 8, 2004 MRI study noted complaints of persistent worsening non-radicular
back pain. However, the study showed only mild scoliosis and disc degeneration, most advanced
at LI-2 and L5-S1, with no disc herniation or canal stenosis." P. Mem. at 12 (citing R. 32-33).
Plaintiff mis characterizes the ALJ's analysis of Dr. Salemo's medical opinion evidence because
the ALJ did in fact address Dr. Salemo's other opinions and treatment records. In particular, the

ALJ explicitly considered Dr. Salemo's September 27, 2002 letter and opinion that Plaintiffs
July 30, 2002 lumbar spine MRI showed severe degenerative disc disease at several levels and

that Plaintiff should consider graduate school instead of pursuing jobs involving manual labor
both records were cited in Plaintiffs brief as omitted from the ALFs analysis. R. 32
(referencing R. 540). Moreover, Dr. Salemo's 2002 opinions preceded the alleged onset date.
Indeed, there is no evidence that Dr. Salemo treated Plaintiff during the relevant period at all.

Arnone v. Bowen, 82 F.2d 34, 40-41 (2d Cir. 1989) (declining to require the application of the
treating physician rule when there is no indication that the physician saw claimant during the

relevant period). Given that Dr. Salemo did not treat Plaintiff during the relevant period, the
ALJ was not required to further consider Dr. Salemo's opinions and treatment records.
Therefore, the ALJ property considered Dr. Salemo's medical opinion evidence.

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Accordingly, the ALJ did not err in his application of the treating physician rule with
respect to Dr. Salemo.

2. Dr. Gurniak

Plaintiff also claims that the ALJ erred in his application of the treating physician rule
because he failed to specify what, if any, weight he gave Dr. Gumiak's opinion. P. Mem. at 14-

15 (citing R. 33).
"Even when a treating physician's opinion is not given "controlling" weight, the
regulations require the ALJ to consider several factors in determining how much weight it should
receive." Burgess v. Astme, 537 F.3d 117, 129 (2d Cir. 2008); Pines v. Comm 'r ofSoc. See.,

No. 13 Civ. 6850, 2015 US. Dist LEXIS 27325, at *23 (S.D.N.Y. Mar. 2, 2015) ("Due to the
importance of the treating physician rule, the Second Circuit has made clear that it will 'not
hesitate to remand when the Commissioner has not provided good reasons for the weight given
to a treating physician's opinion and it will continue remanding when it encounters opinions
from ALJ's that do not comprehensively set forth reasons for the weight assigned to a treating

physician's opinion.") (alterations omitted) (quoting Halloran, 362 F.3d at 33).
Mere, the ALJ dismissed Dr. Gumiak s opinion in a single sentence: Dr. Furniak's [sic]
treatment reports are rather vague and do not indicate any developments in the claimant's
condition or specific treatment modalities other than pain medication management (Exhibit 6F,
pp. 14-19)." R. 33. The Second Circuit has made clear that it will "not hesitate to remand when
the Commissioner has not provided good reasons for the weight given to a treating physician's
opinion." Pines v. Comm 'r ofSoc. See., No. 13 Civ. 6850, 2015 U.S. Dist. LEXIS 27325,at *23

(S.D.N.Y. Mar. 2, 2015) (alterations omitted) (quoting Halloran, 362 F.3d at 33). The ALFs
conclusory statement not only fails to provide good reasons for discounting Dr. Gurniak's

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opinions, it fails to specify what weight, if any, was awarded to the doctor's opinions. This was
error. Although Defendant argues that the ALJ "possessed a complete medical history and no
further development was required/" D. Mem. at 23, "'legal error is cause for remand, even if
substantial evidence exists to support the Commissioner's factual findings."' Oomen v.
Berryhill, No. 16 Civ. 3556, 2017 U.S. Dist. LEXIS 58319, at *36-37 (S.D.N.Y. Apr. 17, 2017).
Therefore, the ALJ's failure to specify how much weight he awarded Dr. Gumiak's opinion is
cause for remand.

Accordingly, the ALJ improperly applied the treating physician rule with respect to Dr.
Gumiak. I respectfully recommend that remand is warranted on this basis.
B. Duty to Develop the Record

Plaintiff next argues that the ALJ failed to develop the record to address a gap in the
medical record. P. Mem. at 10-15. Defendant counters the medical record was not incomplete
under 20 C.F.R. § 404.1513(b)(6). D. Mem. at 22 (citing Tankisi v. Comm 'r ofSoc. See., 521

Fed. App'x. 29, 34 (2d Cir. 2013); R. 67-68).
It is well-settled that the ALJ has an affirmative obligation to develop the record. See

Moran v. Asfrue, 569 F.3d 108, 112 (2d Cir. 2009). "This means that the ALJ should malce an
initial request from the claimant's treating physician for records, plus one follow-up request.
Thereafter, if the documents received lack any necessary information, the ALJ should re-contact

It appears likely that the ALJ's cursory treatment of Dr. Gumiak is related to the
fact that Dr. Gumiak's handwritten treatment records are largely indecipherable. See R. 479

(February 26, 2013); 478 (May 10, 2013); 476 (July 31, 2013); 475 (August 23, 2013); 474
(September 16, 2013); 473 (October 11, 2013); 472 (November 8, 2013); 471 (December 2,

2013); 470 (December 27, 2013); 468 (January 24, 2014); 466 (February 19, 2014); 464-65
(March 19, 2015); 462 (April 7, 2014); 460 (April 28, 2014). In such circumstances the ALJ
should to seek clarification or even transcription of the treating doctor's notes. See Silva v.

Colvin^o. 14 Civ. 6329, 2015 US. Dist. LEXIS 120739 at *15 (W.D.N.Y. Sept 10,
2015)(remanding for transcription of doctor's illegible notes) (collecting cases).

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the treating physician." Velez v. Colvin, No. 14 Civ. 3084, 2017 U.S. Dist. LEXIS 57670, at

*55-56 (quotation marks and citations omitted); see also 20 C.F.R. §§ 404.1512(b)(l),
419.0l2(b)(l). "To be sure, the ALJ's general duty to develop the administrative record applies
even where the applicant is represented by counsel, but the agency is required affirmatively to
seek out additional evidence only where there are 'obvious gaps' m the administrative record."
Ezisepi v. Colvin, 595 Fed. App'x 7, 9 (2d Cir. 2014) (citation omitted). However, where there
are no "obvious gaps" in the record and where the ALJ already "possesses a complete medical
history," the ALJ is "under no obligation to seek additional mformatlon in advance of rejecting a
benefits claim." Swiantek v. Comm sr ofSoc. See., 588 F. App'x 82, 84 (2d Cir. 2015) (summary
order) (quoting Rosa v. Callahan, 168 F.3d at 79 n.5).
In Plaintiffs brief, he recites the contents of the records from Downtown Physical

Medicine and Rehabilitation in some detail and concludes, "[i]t is hereby submitted that ALJ
Gonzales failed to develop the record in this instance," P. Mem. at 12-13, without specifying
what the ALJ failed to develop. There is no obvious gap in this record. The ALJ had a complete
medical record before him. The only gap in the medical record afEer the Alleged Onset Date is
not due to missing records, as Plaintiff suggests, P. Mem. at 14, but rather, due to Plaintiffs
financial distress and lack of insurance, the absence of medical treatment. R. 22.
Accordingly, the ALJ was not under any further obligation to develop the record in this
instance. Remand is not warranted on this basis.

C. Credibility
Plaintiff argues that the ALJ erred in making his credibility determination. P. Mem. at
15-17. In particular. Plaintiff argues that the ALJ did not clarify which of Plaintiff s daily
activities are not limited to the extent one would expect. P. Mem. at 15-17 (citing R. 34).

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Defendant contends that the ALJ properly considered the extent to which there were conflicts

between Plaintiffs daily activities and Plaintiffs statements about his alleged disability. D.
Mem. at 17-18 (citing R. 34).
While it is true that an ALJ is required to consider the plaintiffs reports of pain and other
limitations, 20 C.F.R. § 416.929, an ALJ is not required to accept the plaintiffs subjective
complaints without question. McLaitghlin v. Sec 'y of Health, Edzic. & Welfare, 612 F.2d 701,

704-05 (2d Cir. 1980). In assessing Plaintiffs subjective claims of pain and other symptoms, the
ALJ must first determine whether there are "medically determinable physical or mental
Impairments) — 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
individual's pain or other symptoms." SSR 96-7p. If this has been shown, the ALJ must then
evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine

the extent to which the symptoms limit the individual's ability to do basic work activities. Jd.
When making a credibility determination, the ALJ can consider the following factors: (1) daily
activities; (2) the location, duration, frequency, and intensity of the pain or other symptoms; (3)
precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

3 Effective on March 28, 2016, SSR 16-3p, 2016 SSR LEXIS 4 superseded SSR
96-7p, 1996 SSR LEXIS 4. 5'ee SSR 16-3p, 2016 SSR LEXIS 4 (Mar. 28, 2016). The new
ruling eliminates the use of the term "credibility" from the SSA s sub-regulatory policy, in order
to "clarify that subjective symptom evaluation is not an examination of an individual s
character." 2016 SSR LEXIS 4, at *1. Instead, adjudicators are instructed to "consider all of the
evidence in an individual's record when they evaluate the intensity and persistence of symptoms

after they find that the individual has a medically determinable impairments) that could
reasonably be expected to produce those symptoms. 2016 SSR LEXIS 4, at *2. Both the twostep process for evaluating an individual's symptoms and the factors used to evaluate the
intensity, persistence and limiting effects of an individual's symptoms remain consistent between

the two rulings. Compare SSR 96-7p, 1996 SSR LEXIS 4 with SSR 16-3p, 2016 SSR LEXIS 4.
As the ALJ's decision in this matter was issued before the new regulation went into effect, this
Court reviews the ALJ's credibility assessment under the earlier regulation.

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medication taken to alleviate pain or other symptoms; (5) treatment, other than medication,
received for relief of pain or other symptoms; (6) any measures used to relieve pain or other
symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or

other symptoms. 20 C.F.R. § 416.929(c)(3). An ALJ is not required to explicitly address each
of the regulatory credibility factors. Cichoki v. Astrne^ 534 Fed. App'x 71, 76 (2d Cir. 2013)
(summary order). If after considering these factors the ALJ's findings are supported by
substantial evidence... the court must uphold the ALJ's decision to discount plaintiffs subjective
complaints of pain." Aponte v. Sec'y, Dep't of Health andHzimanServs., 728 F.2d588, 591 (2d

Cir. 1984). Ultimately, the ALJ's determination of credibility is entitled to deference. See Snell
v. Apfel, 177 F.3d 128, 135-36 (2d Cir. 1999) ("After all, the ALJ is in a better position to decide
issues of credibility").
Plaintiffs argument that the ALJ erred in assessing Plaintiffs credibility by failing to
specify which of Plaintiff s described daily activities are not limited to the extent one would
expect, P. Mem. at 15-17, ignores the other factors supporting the ALJ's credibility
determination. R. 34. The ALJ came to his credibility determination after considering the
several factors collectively, (i) "the claimant described daily activities that are not limited to the

extent one would expect, given the complaints of disabling symptoms and limitations; (ii)
Plaintiffs treatment was "essentially routine and/or conservative in nature"; (iii) "the record does
not contain any opinion from treating or examining physicians indicating that the claimant was

disabled during the relevant period"; and (iv) the "claimant worked only sporadically prior to the
alleged disability onset date, which raises the question as to whether claimant's continuing
unemployment was actually due to the medical impairments." R. 34. Therefore, the ALJ's

failure to itemize each activity of daily living that conflicts with Plaintiffs alleged disabling

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condition does not undermine the ALJ's ultimate credibility determination.

Moreover, the record supports the ALJ's finding that Plaintiff reported activities of daily
living that did not demonstrate a complete inability to work. For example, despite Plaintiffs
allegedly disabling emphysema and back condition, Plaintiff reported activities of daily living
such as cooking "simple" meals for himself daily; performing light garden work that consisted of
planting seeds, pulling weeds, and harvesting tomatoes in a paU; shopping at stores for food and
clothing three times per week on his own; caring for indoor and outdoor plants; walking his dog
every day; visiting a friend every week or two; regularly walking to a park near the condo; and
repairing some items around the house. R. 175-78. Plaintiff similarly reported to Dr. All that he
cooked, cleaned, did laundry, shopped, watched television, listened to the radio, read books, and

socialized with friends. R. 303; 20 C.F.R. § 404.1529(c).
Plaintiff argues that the ALJ also erred in making his credibility determination by noting
that Plaintiffs treatment was essentially routine and/or conservative in nature and thereby
substituting his own lay opinion for other competent medical opinions before him. P. Mem. at
18 (citing Primes v. Colvin, No. 15 Civ. 6431, 2016 U.S. Dist. LEXIS 14287, at *4 (W.D.N.Y.

Feb. 5, 2016)). This argument is unavailmg. The Social Security Regulations include (i) the
type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other
symptoms; (ii) treatment, other than medication, received for relief of pain or other symptoms;
and (iii) any measures used to relieve pain or other symptoms as factors to be considered before

making a credibility determination. 20 C.F.R. § 416.929(c)(3). Thus, the ALJ properly
considered the essentially routine and/or conservative nature of Plaintiff s treatment.

In light of the foregoing, the ALJ's credibility determination was supported by substantial
evidence. On this record, I recommend that the Court decline to disturb the ALJ's credibility

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finding.
D. Substantial Evidence

Plaintiff argues that the ALJ improperly determined Plaintiffs RFC because he failed to
cite any medical evidence or medical opinions in support of his RFC determination. P. Mem. at
19-22. Since the ALJ's RFC determination was improperly made. Plaintiff argues, the
hypotheticals (based on the ALJ's RFC determination) proffered to the vocational expert were
also improper. P. Mem. at 19-22. Defendant argues that since the ALJ's RFC determination
actually was supported by substantial evidence, the hypotheticals proffered to the vocational
expert were appropriate. D. Mem. at 19 (citing R. 31-35).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart^

362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The
ALJ is entitled to rely on both what the medical record says and what it does not say. Dtimas v.

Sweiker, 712 F.2d 1545, 1553 (2d Cir. 1983); Johnston v. Colvin, No. 13 Civ. 2710, 2015 US.
Dist. LEXIS 20178, at * 12 n.3 (S.D.N.Y. Feb. 13, 2015) ("As the Second Circuit has noted the

absence of evidence from the claimed period of disability may itself be considered substantial
evidence ).
1. Emphysema
Contrary to Plaintiffs claim that ALJ Gonzales offers no citation to the record as to
medical evidence in support of his RFC determination," P. Mem. 22, the ALJ considered and

cited directly to several treatment records for PlaintifPs allegedly disabling emphysema from
2007 through late 2012. R. 32. Beginning chrono logically, the ALJ considered Dr. Salemo's

April 2006 report which indicated that (i) Plaintiff denied symptoms often associated with the

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condition, such as wheezing, cough or sputum, headaches, weight loss or hemoptysis (coughing

blood); (ii) Plaintiff could walk three miles and negotiate two flights of stairs without difficulty;
{iii) the pulmonary function test, performed at the time of the examination, showed normal

spirometry with an FEV1 1 14%, low diffusion capacity, and a fall in 02 saturation with exercise;
and (iv) Dr. Salemo's failure to recommend further treatment. R. 32 (citing Ex. 4F, pp. 11-13,

Exhibit 4F, pp. 4-5). The ALJ next considered Plaintiffs February 2007 chest CTs, which
showed moderate to severe emphysematous changes as stable, with no changes to the nodule as

compared to the July 2006 study. R. 32 (citing Exhibit IF, pp. 5-6) and Plaintiffs March 31,
2008 CT scan, which also showed a stable left lung nodule and no COPD when compared to the
February 2007 study. R. 32 (citing Exhibit 6F, p. 65).
In my view, the ALJ cogently set forth the substantial evidence relied upon in

determining Plaintiff emphysema was not disabling.
2. Back Condition
The ALJ's analysis of the record concerning Plaintiffs back condition, on the other hand,
is problematic due to the ALJ's perfunctory discussion of Dr. Gumiak, who treated Plaintiff
extensively for his back pain. "[A]n ALJ's failure to follow the procedural requirement of
identifying the reasons for discounting . .. opinions and for explaining precisely how those
reasons affected the weight given denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based on the record." Silva v. Colvin, No. 14 Civ. 6329,

2015 U.S. Dist LEXIS 120739 at *14 (W.D.N.Y. Sept 10, 2015)(quotations and citations
omitted). Because I recommend remand for additional findings related to Dr. Gumiak, I do not
reach the question whether the ALJ's determination that Plaintiffs back condition was not
disabling was supported by substantial evidence.

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VI. CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendant's cross-motion be

DENIED and that Plaintiffs cross-modon be GRANTED to the extent that this case should be
remanded to the Commissioner for farther administrative proceedings consistent with this Report
and Recommendation.

Dated: August 23, 2017
White Plains, New York

auTE:Daviso^U:S.MJ.

NOTICE
Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) days from service of this Report and
Recommendation to serve and file written objections. See also FED. R. Civ. P. 6(a). Such
objections, if any, along with any responses to the objections, shall be filed with the Clerk of the
Court with extra copies delivered to the chambers of the Honorable Cathy Seibel, at the
Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quai'ropas,
Street, White Plains, New York 10601, and to the chambers of Judge Paul E. Davison at the
same address.

Failure to file timely objections to this Report and Recommendation will preclude later
appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel.

28