Proper v. Commissioner of Social Security
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings to the extent that this case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Decision and Order; finding as moot 18 Motion to Remand ; terminating 20 Motion to Stay; terminating 23 Motion for Writ of Mandamus; terminating 26 Motion for Writ of Mandamus. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/18/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEREMY E. PROPER,
DECISION AND ORDER
-vsCOMMISSIONER OF SOCIAL SECURITY,
commenced the instant action challenging the final decision of the
Commissioner”) denying his application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act (“the
Act”). The Court has jurisdiction over this matter pursuant to
42 U.S.C. § 405(g).
On January 13, 2009, Plaintiff applied for DIB, claiming
disability since January 17, 2008, based on, inter alia, multiple
herniated discs and bulges in the thoracic and lumbar spine,
tendinopathy, anxiety, and depression. T.250-52;1 see also T.75,
86. After the application was denied, T.106-13, Plaintiff requested
Citations to “T.” refer to pages in the certified copy of the
administrative transcript, filed by the Commissioner in connection with her
Answer to the Complaint.
an administrative hearing. On April 26, 2011, Plaintiff, along with
his non-attorney representative, appeared at a hearing before
administrative law judge David S. Pang (“ALJ Pang” or “the ALJ”).
T.28-74. An impartial vocational expert testified at the hearing as
well. On July 22, 2011, the ALJ issued a decision finding that
Plaintiff was not disabled. T.83-96. Plaintiff sought review of the
ALJ’s decision before the Appeals Council, which denied review on
December 9, 2011, making the ALJ’s decision the final decision of
the Commissioner. T.18-23. Plaintiff then filed his Complaint in
On May 2, 2012, the Court (Arcara, D.J.) referred the case to
a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). Defendant
answered the Complaint on April 30, 2012, and, on July 31, 2012,
September 17, 2012, Plaintiff filed a Motion for Judgment on the
Pleadings (Dkt #13).
No further action occurred in the case until
July 25, 2013, when Plaintiff filed a Motion to Remand to the
Social Security Administration Pursuant To Sentence 6 of 42 U.S.C.
§ 405(g) (Dkt #18).
On April 16, 2014, Plaintiff filed a Motion for Writ of
Mandamus and Interim Benefits (Dkt #23), which subsequently was
stricken from the docket at Plaintiff’s request (Dkt #24). On
September 11, 2014, Plaintiff filed a Second Motion for Writ of
Mandamus (Dkt #26), which the Commissioner opposed (Dkt #30).
Plaintiff filed a reply on October 10, 2014 (Dkt #31) along with
additional exhibits (Dkt #32). However, on November 5, 2014,
Plaintiff filed a Motion to Withdraw the Second Motion for Writ of
Mandamus (Dkt #33). Plaintiff stated that he was withdrawing his
motion for prompt decision and interim benefits filed on August 29,
2014” “because on or about October 10, 2014 he began receiving
interim benefits” and “by notice dated October 29, 2014 Plaintiff’s
current claim was remanded to an Administrative Law Judge for
further proceedings.” Dkt #33, p. 1. Therefore, Plaintiff stated,
he “has received substantially all of the relief he was seeking in
this motion.” Id.
On November 6, 2014, the Court (Arcara, D.J.) issued a text
order (Dkt #34) granting Plaintiff’s Motion To Withdraw the Second
Administrative Law Judge for further proceeding, Plaintiff is
instructed to advise this Court as to what issues or motions, if
any, remain pending . . . .” See Dkt #34. In response to Judge
Arcara’s text order, Plaintiff filed a Notice of Issues and Motions
That Remain Pending (Dkt #35), stating that the cross-motions for
judgment on the pleadings, and the motion for a sentence six remand
The case was transferred to the undersigned on December 2,
2014 (Dk #36). After reviewing the record and the docket, the Court
has determined that the remand proceeding referenced by Plaintiff
does not cover the DIB claim at issue in the instant Complaint.
Rather, it covers the period commencing the day after ALJ Pang’s
adverse decision (July 23, 2011) through the present. According to
the documents submitted by Plaintiff as attachments to his motions
for writs of mandamus, Plaintiff had a hearing before a new ALJ,
Stanley Moskal, Jr. (“ALJ Moskal”), who found that he had numerous
severe impairments as of the alleged onset date of July 23, 2011 (a
mild disc bulge at L4-5 with subtle foraminal encroachment, and a
mild disc bulge without stenosis at L5-Sl; small disc herniations
at T4-5 and T6-7 effacing the thecal sac but without
cord compression, mild bulges without stenosis at T7-8, T8-9 and
T9-10; right supraspinatus tendinopathy and torn ante1ior glenoid
labrum; a flap tear of the posterior horn of the left lateral
bilateral carpal tunnel syndrome; and asthma). After reviewing the
claim de novo, ALJ Moskal concluded that Plaintiff was not disabled
prior to October 23, 2012, but that he became disabled on that date
and has continued to be disabled through the date of his decision.
The Commissioner sought review of ALJ Moskal’s opinion by the
Appeals Council, which found that substantial evidence did not
support the disability finding. The Appeals Council accordingly
Plaintiff has been receiving interim benefits for the time-period
covered by ALJ Moskal’s disability finding. In sum, it appears that
Plaintiff’s second DIB claim is still being litigated at the
For the reasons discussed below, the Court finds that ALJ
Pang’s decision, regarding Plaintiff’s first DIB claim, contains
III. Summary of the Administrative Transcript
Relevant Medical Evidence
Plaintiff presented to Dr. Alfredo Rodes at Southgate Medical
Group on January 21, 2008, for his initial examination following a
work-related injury on January 17, 2008. Plaintiff had picked up an
resulted in injuries to his back and right shoulder, as well as his
left knee. T.545-46, T.628-29, T.503. On examination, straight leg
raise testing resulted in low back pain complaints bilaterally, and
left-sided leg and thigh pain. T.545. The right shoulder showed
limited abduction and discomfort on extension. The left knee showed
discomfort on full flexion and extension. Anterior and posterior
(724.4), with preexisting lumbar radiculopathy; Injury Shoulder &
Upper Arm Other Unspecified (959.2); and Sprains & Strains/Knee &
Leg Unspecified (844.9). T.629. Plaintiff was given a letter
excusing him from work from January 18, 2008, to February 1, 2008.
Plaintiff was examined by Timothy V. McGrath, M.D., at the
Hand and Shoulder Center of WNY on February 9, 2008, for complaints
Dr. McGrath diagnosed probable bilateral carpal tunnel syndrome,
tenosynovitis of the flexor tendons at the wrist and hand, and mild
medial and lateral epicondylitis. Dr. McGrath recommended nerve
conduction studies to the bilateral extremities, including the
median and ulnar nerves, to assess for peripheral compression
On February 26, 2008, Plaintiff was examined by orthopedic
specialist Dr. Deborah Bergfeld of the Buffalo Spine and Sports
Institute. See T.503-05. Plaintiff presented with complaints of low
back and left leg pain, as well as left knee pain and right
shoulder/upper extremity pain. Plaintiff informed Dr. Bergfeld that
he had experienced pain in all of these areas prior to the
workplace injury, but that after January 17, 2008, the symptoms had
become “100 percent worse.” Upon physical examination, Plaintiff’s
gait was mildly antalgic on the left and his lumbar range of motion
was limited in all planes by 50 percent. Plaintiff’s cervical range
of motion was unlimited in flexion but was limited in extension by
25 percent. Left shoulder range of motion was normal. He had
decreased full abduction and forward flexion of the right shoulder,
positive impingement signs in the right upper extremity, and AC
horizontal compression testing. FABER testing and neural tension
testing were positive in the left lower extremity, as well as
slump-sit and straight leg raise. Spring testing was abnormal in
the lumbar spine. Dr. Bergfeld diagnosed lumbar dysfunction with
lumbar facet degenerative changes at L4-5 and L5-S1 (based on an
August 5, 2006 MRI), possible lumbar discogenic pain, left lower
extremity radiculitis versus pseudo radiculitis, right shoulder
impingement syndrome, right shoulder rotator cuff tendinopathy, and
left knee pain with possible meniscal tear. T.504. She recommended
continuing on Lortab, as needed, and doing a trial of diclofenac as
further imaging studies and having Plaintiff commence physical
Plaintiff on April 15, 2008, for Worker’s Compensation purposes.
Dr. Ring noted that Plaintiff had a long history of difficulty with
his low back since 1992 when he was working at Bell’s Supermarkets
and injured his low back. He recovered, but he had a recurrence at
Sonwill Warehouse while he was unloading a truck, and was out of
work for 1 month. Plaintiff had another recurrence in 2005 at
Steuben Foods when he slipped while getting off a forklift, and was
out for 5½ months. Most recently, he had the back re-injury on
January 17, 2008. T.596-97. Straight leg raising was positive at 50
degrees on the right and at 30 degrees on the left, with pain in
the low back. He had hypethesia to pinprick and light touch in the
left foot. Dr. Ring’s diagnosis was acute low back strain causally
related to the January 17th injury and superimposed on a long
history of recurrent episodes of back difficulty. T.597. According
to Dr. Ring, Plaintiff’s prognosis was “guarded” due to “many
episodes of back pain over the years.” Id. Dr. Ring opined that
Plaintiff could not return to his past job, but could return to
what he characterized as “a sedentary job”, provided that his
lifting was restricted to less than 10 pounds and he was not
required to do repetitive lifting. T.598.
Plaintiff’s primary care physician, Dr. Rodes, saw Plaintiff
on July 23, 2008. T.547-48. Plaintiff reported aching, sharp pain
and stiffness in his lower back which radiated to his left thigh
and leg, with associated numbness and tingling. Straight leg
raising was positive bilaterally. The diagnosis was Neuritis or
stable. Plaintiff was to ice the affected area every evening,
perform lumbar exercises as directed, and continue medications
On August 9, 2008, an MRI of the lumbar spine revealed no
evidence of disc abnormality, no significant stenosis, and no
central or neural foraminal stenosis. T.507. A right shoulder MRI
degenerative change at the acromioclavicular joint with mild to
moderate imaging evidence of impingement; no evidence of rotator
cuff tear; no evidence of Hill-Sachs abnormality or bony Bankart
lesion; and no definite labral tear, although there might be some
irregularity of the superior labrum. T.508.
Plaintiff was examined by orthopedic surgeon Dr. Cameron
Huckell at Pinnacle Orthopedic & Spine Specialists on September 10,
complained of low lumbar pain which he rated as 5 out of 10 in
intensity on average, and 8 out of 10 at its worst. The pain
originated at the upper lumbar spine and radiated to the left hip
and back of left thigh, across to the front of the knee. Plaintiff
sitting. His left leg sometimes would give out, causing him to
fall. Straight leg raising was positive in the supine position at
45 degrees. Plaintiff walked with a normal gait, without a cane,
but was unable to stand on heels and toes. Paravertebral muscle
spasm was noted. Functional range of motion was present in the
shoulders, elbows, wrists, hips, knees, and ankles. Plaintiff had
full muscle strength in the lower extremities. Plaintiff’s mood and
affect were normal. Dr. Huckell recommended a thoracic spine MRI to
identify the potential source of Plaintiff’s upper lumbar pain. He
opined that Plaintiff was temporarily totally disabled. T.617.
An October 17, 2008, MRI of Plaintiff’s lumbar spine showed a
mild bulge with subtle foraminal encroachment without stenosis at
the L4-5 level and another mild disc bulge without stenosis at the
herniations of the nucleus pulposus without stenosis at the T4-T5
and T6-T7 levels and mild bulges without stenosis at the T7-T8,
T8-T9, and T9-T10 levels. T.512-13.
On October 24, 2008, Plaintiff saw Dr. Rodes, reporting
worsening pain that was uncontrolled with medication T.549-50, 61213. The pain was aching and sharp with associated stiffness.
Plaintiff walked with an antalgic gait but had full lower extremity
strength. Straight leg raising was positive bilaterally.
An EMG/nerve conduction (“NCV”) study dated November 7, 2008,
peripheral nerve entrapment or neuropathy. T.609-11. On reviewing
the report of the EMG/NCV study and the MRIs on November 14, 2008,
noted that there was “no significant pathology to
explain [his] current symptoms”, although the possibility of occult
annular tears was not excluded. T.607. Dr. Huckell stated that
Plaintiff “should be worked up for a possible left sided piriformis
syndrome”, a “neuromuscular disorder that occurs when the sciatic
nerve is compressed or otherwise irritated by the piriformis
On December 9, 2008, orthopedic surgeon Walter D. Hoffman,
M.D., examined Plaintiff and reviewed his diagnostic records for
complained of back and left leg pain. Dr. Hoffman noted that
Plaintiff was “very incapacitated by this pain” and was unable to
any lifting, pushing, or pulling. Plaintiff claimed he was unable
to stand or sit for any length of time and had to change positions
frequently or lie down often to rest his back. On examination,
Plaintiff full range of motion in his neck with no muscle spasm,
and tenderness in his mid-dorsal and lumbar spine. Lumbar spine
range of motion was 50% of normal. The EMG and nerve conduction
studies were normal. Dr. Hoffman concluded that Plaintiff was
restricted capacity.” T.553.
Also on December 9, 2008, Dr. Hoffman completed a Physical
Capabilities Evaluation form on Plaintiff’s behalf. T.556; 569.
Dr. Hoffman indicated that Plaintiff was able to work zero hours
per day; could never lift any weight; could never push or pull; and
could never climb, balance, bend, stoop, kneel, crouch, crawl,
reach, handle, grasp, perform overhead lifting, or work on ladders.
Upon referral by Dr. Huckell, Plaintiff was examined by
Dr. David L. Bagnall at Rehab NY Spine & Musculoskeletal Medicine
on December 10, 2008. T.570-72. On examination, Plaintiff had
75 percent). His left leg strength was 4 out of 5 and the right was
5 out of 5. His gait was normal. Slump testing and straight leg
raising were positive on the left. Spring testing was negative but
there was increased pain at the lumbosacral junction and evidence
of lumbar segmental dysfunction. After reviewing Plaintiff’s MRI
reports, Dr. Bagnall diagnosed “radicular syndrome – lower limb.”
X-rays of Plaintiff’s lumbar spine taken on January 19, 2009,
were negative. T.579.
On January 21, 2009, Plaintiff saw Dr. Rodes. T.573-74;
601-02. Plaintiff walked with an antalgic gait. His left lower
extremity had 0 out of 5 muscle strength, but the right leg had
full strength and full range of motion. Plaintiff’s mood and affect
were normal. Straight leg raising was positive on the right with
low back pain and positive on the left with low back, thigh, and
leg pain. Plaintiff had limitation and pain with movement of the
left lower extremity and full range of motion with discomfort in
the right lower extremity. Dr. Rodes opined that Plaintiff was
temporarily totally disabled. T.574; 602.
On February 19, 2009, physician’s assistant Lynne M. Fries
(“P.A. Fries”) of Dr. Bagnall’s office examined Plaintiff, who
complained of back pain. Tr. 577-79;
585-87. PA Fries noted that
Plaintiff denied having any anxiety, depression, panic attacks,
memory loss or concentration difficulty. T.578. On examination,
Plaintiff walked without an assistive device and had a normal gait.
Forward and lateral lumbar flexion both were limited by 50 percent;
lumbar extension was limited by 75 percent. PA Fries suspected some
degree of psychological overlay on Plaintiff’s part due to his
“poor or exacerbated response to treatment and continued short-term
narcotic use and negative diagnostics [sic]”. T.579.
On March 7, 2009, Plaintiff was seen by consultative examiner
Harbinder Toor, M.D., who examined Plaintiff at the Commissioner’s
request. T.636-39. Dr. Toor observed that Plaintiff needed no help
changing for the examination. T.637. Plaintiff had a normal stance
but an abnormal gait, and he used a cane prescribed by his doctor.
Upon examination, Plaintiff declined to walk on his heels and toes
and was unable to stand for more than a few minutes without his
cane. Straight leg raising was positive. Muscle strength was full
in all extremities with no motor or sensory deficits. Dr. Toor
opined that Plaintiff had “moderate to severe” limitations to
standing, walking, bending, and heavy lifting due to pain and a
limitation to sitting for a “long time”, and “mild to moderate”
difficulty in pushing, pulling, and reaching due to right shoulder
Also on March 7, 2009, Plaintiff was examined by Thomas Ryan,
Ph.D., a consultative examiner. T.632-35. Plaintiff reported no
psychiatric hospitalizations. He had gone for counseling two years
prior after his estranged father had contacted him. On examination,
Plaintiff was dysthymic, but his attention, memory skills, and
concentration were intact. His thought processes were coherent and
goal directed. Plaintiff cared for his personal needs, did some
household chores as well as some cooking and cleaning, socialized,
and enjoyed using his computer, fishing and camping. Dr. Ryan
concluded that Plaintiff demonstrated no significant limitation in
the ability to follow and understand simple directions, perform
simple tasks, maintain attention and concentration, maintain a
regular schedule, learn new tasks, perform complex tasks, and
generally make adequate decisions. T.634. Plaintiff had a moderate
limitation in the ability at times to deal with others and stress.
Dr. Rodes examined Plaintiff on April 22, 2009. T.696-98.
Plaintiff presented with anxiety and depression, in addition to
continued aching, sharp and spasming pain in his low back. Straight
leg raising was positive bilaterally with low back pain.
M. Totin, a State agency psychologist, reviewed the record on
May 21, 2009, and opined that Plaintiff did not have a severe
mental impairment. T.648.
On June 18, 2009, Plaintiff saw Dr. Huckell in follow-up,
after having gone to the emergency room on June 15, 2009, because
of his severe back pain. T.662-66. Plaintiff had an antalgic gait,
but was able to stand on his heels and toes showing a fair amount
Straight leg raising testing was positive in the supine position at
45 degrees. Dr. Huckell concluded that there was no clear evidence
recommended a lumbar CT discogram to assist with making a surgical
recommendation. Diagnoses were lumbago, herniated disc (thoracic)
without myelopathy, and lumbar spine sprain/strain.
In a report dated June 22, 2009, Dr. Huckell opined that
Plaintiff could work in a light duty capacity with the following
crawling, or climbing; avoid sitting, standing or walking for more
than two hours at one time; avoid lifting over 20 pounds; and avoid
a greater than 8-hour workday. T.665. Dr. Huckell added that if a
light duty job was not available, Plaintiff would be considered
disabled with a temporary total disability from his occupation.
Dr. Melvin Brothman conducted an orthopedic examination of
Plaintiff on August 25, 2009, at the request of the Workers’
Compensation Board. T.687-91. Plaintiff had no tenderness over the
right shoulder and had a negative anterior impingement sign. T.689.
Plaintiff had a normal gait and no limp, although he used a cane.
Plaintiff’s straight leg raising testing was negative while seated
and positive while lying down. Dr. Brothman diagnosed questionable
disc disease of the thoracic spine, no clinical evidence of lumbar
syndrome. Dr. Brothman agreed with Dr. Huckell’s suggestion of a
discogram and recommended follow-up with Dr. Huckell every 2 to
3 months. With regard to Plaintiff’s disability level, Dr. Brothman
opined that it was “moderate” and that he was “able to return to
partial duty”, but he was “to avoid bending, lifting or reaching
overhead with his right arm.” T.690.
On September 3, 2009, Thomas Lombardo, Jr., M.D. performed an
orthopedic examination of Plaintiff at the request of the Workers’
Plaintiff’s right biceps, deltoid, and right shoulder; impingement
Plaintiff’s left knee and weakness in his left foot to dorsiflexion
and plantar flexion. He was unable to straight-leg-raise “without
significant pain.” T.704. Dr. Lombardo’s diagnosis was left knee
workplace injury in 2005, although he did return to work. Following
the January 2008 injury, he has “progressively deteriorated.”
T.704. Dr. Lombardo agreed “with 25% apportionment” to the 2005
injury and “75% apportionment” to the 2008 injury. Dr. Lombardo
recommended steroid injections for, and an MRI of, the left knee.
On referral from Dr. Rodes, Plaintiff was examined by pain
management specialist Dr. Eugene J. Gosy on December 9, 2009.
T.707-10. Straight leg raising was negative bilaterally. Plaintiff
had mild spasm at C6 on the left and L5 on the right. Strength was
full bilaterally in both the upper and lower extremities. The
diagnosis was Low Back Pain (724.2), mechanical pain in the lumbar
territory. T.709. Dr. Gosy recommended Zanaflex instead of Soma,
and Norco for incidental pain. Dr. Gosy assessed a disability
status of 50% and stated that Plaintiff was “able to function in
his current light duty position”. T.709.
Plaintiff returned to Dr. Gosy on January 13, 2010. T.711-13.
Plaintiff reported that he had been working doing maintenance at a
school, and walking up the stairs had become “intolerable” due to
his continued pain. He had been approved for lumbar facet blocks.
He reported that Zanaflex caused dizziness and nausea, and Norco
provided minimal relief. He was only sleeping approximately 2 to
3 hours per night due to pain. Clinical findings were essentially
the same as at the December 9, 2009 appointment. Dr. Gosy diagnosed
Low Back Pain (724.2) and Neuralgia, Neuritis & Radiculitis,
Unspecified (729.2). T.713. Dr. Gosy again assessed Plaintiff’s
disability level at 50 percent for Workers’ Compensation.
Plaintiff saw Dr. Gosy in follow-up on January 22, 2010.
T.714-16. Plaintiff reported that upon awakening, he experiences
accelerated pain in the right shoulder and upper arm and swelling
of the right elbow, wrist and fingers. The swelling improved during
the daytime. Plaintiff currently was taking Norco, Skelaxin, and
Vistaril. Clinical findings were essentially the same as at the
January 13, 2010 appointment, although tenderness at the anterior
right shoulder joint was noted. Diagnoses were Low Back Pain
(724.2) and Shoulder Disorders, Other Specified (726.19) (right
shoulder arthropathy, rule out rotator cuff injury associated with
sympathetically maintained pain. Dr. Gosy ordered an MRI of the
right shoulder and prescribed Lidoderm patches for the shoulder.
On April 9, 2010, Plaintiff returned to Dr. Gosy. T.717-19.
Clinical findings were the same as the previous appointment.
Dr. Gosy added Robaxin and ibuprofen and increased the Lidoderm and
Norco dosages. The diagnosis was Lumbago (724.2).
Plaintiff saw Dr. Gosy in follow-up on May 21, 2010. T.720-22.
Clinical findings were the same as the previous appointment.
On July 20, 2010, Dr. Gosy administered facet blocks at left
L4-L5, and L5-S1 for Plaintiff’s facet arthropathy. T.723-24.
On September 9, 2010, Plaintiff saw Dr. Gosy, reporting
increased aching, throbbing pain to the low back and aching,
nagging pain to the right shoulder area, which referred into the
upper arm and forearm. T.725-27. Plaintiff continued to have
swelling of his right upper extremity in the mornings. Plaintiff
appointment. Diagnoses were Lumbago (724.2) and Shoulder Disorders,
Other Specified (726.19). Dr. Gosy stated that additional lumbar
facet injections would be scheduled.
Plaintiff returned to Dr. Gosy on October 6, 2010. T.728-30.
Dr. Gosy noted that Plaintiff was under their care for chronic
mechanical pain of the lumber territory and chronic right shoulder
pain, both of which were status post related injury. Plaintiff
complained of low grade aching, throbbing pain in the lower lumbar
territory and entire right shoulder area. Plaintiff reported that
combination of Norco, Robaxin, ibuprofen, and Lidoderm patches had
been “minimally beneficial” but “well tolerated.” T.728. Norco was
discontinued and Percocet added. Diagnosis was Lumbago (724.2).
Disability status remained the same as the previous appointment.
November 3, 2010, at Dr. Gosy’s request. T.731. Imaging revealed
mild acromioclavicular arthropathy, mild supraspinatus impingement
due to a type III anteriorly hooked acromion, a significant amount
of supraspinatus tendinopathy without tear, and a tear of the
anterior glenoid labrum. There was a possible accessory ossicle at
the inferior margin of the glenohumeral joint, which also could
represent a Bankart lesion or Bankart fracture; correlation with
x-rays was recommended. T.731.
On December 23, 2010, Plaintiff returned to see Dr. Gosy for
his lower back and right shoulder pain. T.764-66. His reports of
pain were consistent with previous appointments. Plaintiff appeared
to be “in moderate distress and pain is indicated by groaning.”
T.766. There was tenderness at the lumbosacral junction, and the
anterior shoulder joint was tender, with abduction limited at
90 degrees. Straight leg raising was negative.
Lumbago (724.2) and Shoulder Disorders (726.19).
Dr. Gosy completed a Medical Source Statement Of Ability To Do
Work-Related Activities (Physical) at the Commissioner’s request on
December 24, 2010. T.733-38. With regard to “Lifting/Carrying”,
10 pounds and “never” could carry up to 10 pounds. Plaintiff could
sit, stand, or walk for 30 to 45 minutes at a time without
interruption; and he could sit, stand, or walk for 2 hours each
(for a total of 6 hours of activity) in an 8-hour workday. Dr. Gosy
feeling, and pushing/pulling with his right hand, and opined that
he “occasionally” could perform these activities with his left
hand. Plaintiff “occasionally” could operate foot controls with his
right foot and left foot. Plaintiff “never” could climb stairs,
ramps, ladders, or scaffolds; stoop; kneel; crouch; or crawl. He
unprotected heights or in extreme cold), except that Plaintiff
could “occasionally” operate a motor vehicle.
Vocational Expert Testimony
hairstylist, janitor, forklift operator, painter, and packer and
material handler) as “light” to “very heavy” in exertional level,
as Plaintiff actually performed those jobs. T.52-53. The ALJ asked
the VE expert to assume a hypothetical individual of the same age,
education, and work experience as Plaintiff, who is able to perform
light work as defined in the regulations, who would require a
sit-stand option that would be performed at the work station so the
person would not be off-task or leave the work area, and who can
sit or stand at will. T.53. In addition, the individual never would
be able to use his left lower extremity to operate foot controls,
should never climb ladders or scaffolds, should only occasionally
climb ramps and stairs, and should only occasionally stoop, kneel,
crouch, and crawl. The individual would be precluded from overhead
exposure to unprotected heights. The individual would be able to
understand, remember, and carry out simple instructions, make
judgments on simple work-related decisions, interact appropriately
with supervisors and co-workers in routine work settings, and
respond to usual work situations and changes in routine work
settings. Upon being asked whether such an individual would be able
to perform any of Plaintiff’s past work, the VE testified in the
negative. However, such an individual could perform the following
representative jobs: photocopy machine operator (light exertional
No. 207.685-014, of which there are 31,000 of these jobs nationally
and 2,000 in New York State; ticket seller (light), DOT Code
No. 211.467- 030, of which there are 3.5 million jobs in the
national economy and 100,000 in New York State; and information
clerk (light), DOT 237.367-018 of which there are 1.1 million jobs
nationally and 29,000 in the State. T.54.
testified that the DOT does not include a “sit/stand option”;
rather, the above data regarding jobs and job numbers came from
United States Census Bureau information. T.55. The VE stated that
her opinion about whether a job includes a “sit/stand option” was
based on an occupational analysis of jobs in the open labor market.
The VE testified that a person with the limitations specified in
Dr. Gosy’s December 2010 Medical Source Statement would not be able
to perform any jobs in the national economy. T.57-61.
Discussion of Plaintiffs’ Contentions
Erroneous Step Two Finding
Plaintiff contends that ALJ Pang’s step two analysis was
incomplete because he failed to find that Plaintiff’s shoulder and
knee impairments were “severe” impairments, in addition to his
degenerative disc disease, anxiety, and depression. At this step,
the Commissioner must determine whether a claimant has a “severe”
impairments which significantly limits physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(a)(4)(ii), (c).
“Basic work activities” is defined to “mean the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). An
impairment is “not severe” where the “medical evidence establishes
only a slight abnormality or combination of slight abnormalities
which would have no more than a minimal effect on an individual’s
ability to work, even if the individual’s age, education, or work
experience were specifically considered[.]” Social Security Ruling
(“SSR”) 85–28, 1985 WL 56856, at *3 (S.S.A. 1985); see also
SSR 96–3p, 1996 WL 374181, at *1 (S.S.A. July 2, 1996). The Second
Circuit has made clear that the “severity” standard is applied
“solely to screen out de minimis claims.” Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995); see also SSR 85-28, 1985 WL 58656, at *4
Plaintiff argues that the ALJ erred in failing to find that
step two. The Court agrees. There is ample objective medical
shoulder condition significantly limits his ability to perform
Dr. Lombardo examined Plaintiff and found that he had weakness in
his biceps and deltoid in the right shoulder[;] [i]mpingement signs
are positive.” T.704. A November 2010 MRI of Plaintiff’s right
shoulder showed, inter alia, mild supraspinatus impingement due to
a type III anteriorly hooked acromion, a significant amount of
supraspinatus tendinopathy, and a tear of the anterior glenoid
Likewise, the Court agrees that the ALJ erroneously failed to
indicating that this condition significantly limits his ability to
perform basic work activities. For example, Dr. Bergfeld diagnosed
Plaintiff as having a possible meniscal tear in his left knee. IME
Dr. Lombardo noted that Plaintiff had “marked weakness” in his left
knee, with an “inability to straight leg raise without significant
pain.” Dr. Lombardo diagnosed left knee arthralgia and a probable
torn left medial meniscus.
Erroneous Step Three Analysis
Plaintiff argues that the ALJ erred at the third step of the
five-step inquiry, in which the ALJ was required to determine
whether his impairment or combination of impairments matches any of
those in the Listing of Impairments, 20 C.F.R. § 404.1525(a);
20 C.F.R. Pt. 404, Subpt. P, App. 1. The burden is on Plaintiff, as
the party claiming disability, to demonstrate that his impairment
(or combination of impairments) meets or is equal in severity to a
listed impairment based on medical evidence. Sullivan v. Zebley,
493 U.S. 521, 530 (1990). Plaintiff meets this burden by showing
that he meets all of the specified criteria for the impairment set
forth in the Listing. Id.; see also SSR 83–19, 1983 WL 31248, at *2
(S.S.A. 1983) (“An impairment ‘meets’ a listed condition in the
Listing of Impairments only when it manifests the specific findings
The ALJ found that Plaintiff’s degenerative disc disease does
not meet any listed impairment because “the record does not reflect
the degree of motor or neurological deficits as required by any
listing found under 1.00 Musculoskeletal (including 1.04 [Disorders
of the spine])[.]” T.89. The ALJ next concluded, “[N]or does the
evidence show that the claimant is unable to effectively ambulate
or perform fine and gross movements effectively as defined by
1.00B2b or 1.00B2c (as referenced in 1.02 [Major dysfunction of a
The Court agrees with Plaintiff that the ALJ’s step three
analysis is legally erroneous inasmuch as it provides no record
support or rationale for how he reached his findings as to listing
equivalency. With regard to Listing 1.04, the ALJ did not analyze,
much less mention, any of the relevant medical evidence regarding
Plaintiff’s diagnoses involving his degenerative disc disease and
lower lumbar pain, or the symptoms and deficits caused thereby. The
ALJ’s “one-sentence, conclusory analysis [of the pertinent listed
evidence[,]” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp.2d 133,
144 (N.D.N.Y. 2012), is “plain error.” Id. (citing Morgan o/b/o
Morgan v. Chater, 913 F. Supp. 184, 188–89 (N.D.N.Y. 1996)).
Furthermore, the ALJ’s error at step two necessarily affected
his step three analysis: “[B]ecause the ALJ must consider the
combined impact of the impairments specifically identified at
step two throughout the remainder of the five evaluative steps,
20 C.F.R. § 404.1523, the ALJ’s lack of specificity at step two in
this case necessarily forecloses effective review of his analysis
at step three.” McClaney v. Astrue, No. 10–CV–5421(JG)(JO), 2012 WL
3777413, at *8 (E.D.N.Y. Aug. 10, 2102). At step two, the ALJ did
not find Plaintiff’s right shoulder impairment and left knee
impairment to be “severe”, yet he specifically considered Listing
1.02(A) and Listing 1.02(B) at step three. This is incongruous,
since Listing 1.02(A) and Listing 1.02(B) cover “major joint
dysfunctions due to any cause” and potentially could apply to his
analyzed Listings 1.02(A) and (B) undermines his step two finding
that Plaintiff’s shoulder and knee impairments were not severe.
Erroneous Application of the Treating Physician Rule
Plaintiff argues that the ALJ erred by failing to address, in
specialist Dr. Gosy, of one of Plaintiff’s treating physicians.
The opinion of a claimant’s treating physician should be given
controlling weight over other medical opinions in the record if it
is “well supported by medical findings and not inconsistent with
other substantial evidence.” Rosa v. Callahan, 168 F.3d 72, 78–79
(2d Cir. 1999) (citing Clark v. Commissioner of Soc. Sec., 143 F.3d
115, 118 (2d Cir. 1998) (citing 20 C.F.R. § 404.1527(d)(2); other
citation omitted). Even if the treating physician’s opinion is
contradicted by substantial evidence in the record, and not found
to be controlling, it still is entitled “some extra weight, because
the treating source is inherently more familiar with a claimant’s
medical condition than are other sources.” Schisler v. Bowen, 851
F.3d 43, 47 (2d Cir. 1988). In evaluating a report offered by a
substitute his own judgment for competent medical opinion.” Rosa,
168 F.3d at 78-79 (quotation and citations omitted). Where a
treating physician’s opinion on the nature and severity of a
claimant’s disability is not afforded “controlling” weight, the ALJ
must “comprehensively set forth [his] reasons for the weight
assigned to a treating physician’s opinion.” Burgess v. Astrue, 537
F.3d 117, 129 (2d Cir. 2008) (quotation and citation omitted;
alteration in original). In particular, the regulations direct the
ALJ to assess the weight to be given by reference to “(i) the
frequency of examination and the length, nature, and extent of the
opinion; (iii) the opinion’s consistency with the record as a
whole; (iv) whether the opinion is from a specialist; and (v) other
relevant factors.” Schaal, 134 F.3d at 503 (citing 20 C.F.R.
Here, Dr. Gosy undoubtedly qualifies as one of Plaintiff’s
“treating physicians”, having seen Plaintiff regularly over the
course of a year to address Plaintiff’s chronic pain complaints due
to his severe impairments in his lower back and right shoulder.
See Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989) (“Whether the
‘treating physician’ rule is appropriately applied depends on ‘the
nature of the ongoing physician-treatment relationship.”) (quoting
Schisler v. Heckler, 851 F.2d 43, 45 (2d Cir. 1988)).
reflects that Plaintiff was referred to Dr. Gosy in December 2009,
for pain management concerns stemming from the injuries Plaintiff
sustained during his January 17, 2008 injury at work. Dr. Gosy
issued his Medical Source Statement on December 24, 2010. During
this one-year period, Plaintiff saw Dr. Gosy regularly and with
some frequency. Dr. Gosy was a specialist in the area of pain
Plaintiff’s pain medication regimen. He also ordered diagnostic
testing such as MRIs, and performed facet blocks.
Given that the ALJ did not even mention, much less discuss,
Dr. Gosy’s Medical Source Statement, the ALJ evidently did not give
“controlling” weight to it. Furthermore, there is no indication as
to what weight–if any–the ALJ did assign to that opinion. This
July 17, 2014) (finding reversible error where the ALJ “neglected
to assign any weight to the [treating] doctor’s opinions/diagnosis
and failed to explain why he disregarded the opinions entirely”);
Ligon v. Astrue, No. 08-CV-1551(JG)(MDG), 2008 WL 5378374, at *12
(E.D.N.Y. Dec. 23, 2008) (“[T]he ALJ utterly failed to perform the
required task of determining what weight [the treating source
opinion] deserved. . . . Here the ALJ failed, for example, to take
into account that Hedrych is a trauma specialist, or to consider
the frequency of his examinations of Ligon and the length, nature
and extent of Ligon’s treatment relationship with Hedrych.”).
Erroneous Credibility Assessment
Under the regulations, an ALJ first must decide whether the
claimant suffers from a medically determinable impairment that
could reasonably be expected to produce the symptoms he alleges,
and if so, the ALJ then 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. See 20
C.F.R. § 404.1529(a), (c).
An “ALJ’s decision to discount a
claimant’s subjective complaints of pain” will be upheld only when
that decision is “supported by substantial evidence.” Aponte v.
Secretary Dept. of Health & Human Servs., 728 F.2d 588, 591
(2d Cir. 1984); see also Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987) (“If the ALJ decides to reject subjective testimony
sufficient specificity to enable the Court to decide whether there
are legitimate reasons for the ALJ’s disbelief and whether his
determination is supported by substantial evidence.”) (citations
Here, the ALJ identified the correct legal standard for
assessing credibility but failed to apply it, concluding summarily
that Plaintiff’s statements concerning the intensity, persistence
and limiting effects of his symptoms were “not credible to the
extent they are inconsistent with the above residual functional
claimant’s statements not fully credible because those statements
are inconsistent with the ALJ’s own RFC finding. E.g., e.g., Burton
(W.D.N.Y. June 2, 2014) (citing Smollins v. Astrue, No. 11–CV–424,
2011 WL 3857123, at *11 (E.D.N.Y. Sept. 1, 2011); Mantovani v.
Astrue, No. 09–CV–3957, 2011 WL 1304148, at *5 (E.D.N.Y. Mar. 31,
2011); see also Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir.
2013) (criticizing such language as “meaningless boilerplate”).
Because the assessment of a claimant’s ability to work will often
depend on the credibility of his subjective complaints, it is
credibility. Otero v. Colvin, 12–CV–4757, 2013 WL 1148769, at *7
(E.D.N.Y. Mar. 19, 2013); see also Molina v. Colvin, No. 13 Civ.
4989(AJP), 2014 WL 3445335, at *14 (S.D.N.Y. July 15, 2014). Using
that RFC to discredit the claimant’s subjective complaints then
merely compounds the error. Otero, 2013 WL 1148769, at *7.
complaints, in part, based on his lay opinion that “a majority of
the claimant’s MRI’s and x-rays were normal.” This constitutes
legal error. See, e.g., Singletary v. Apfel, 981 F. Supp 802, 807
contradicted by objective medical evidence. See T.501, 507-09, 51011, 731.
In addition, the ALJ relied on an isolated portion of the
record to support his belief that Plaintiff was “overexaggerating
his symptoms”. Specifically, the ALJ focused on a single comment by
a physician’s assistant (not an acceptable medical source) that she
“suspect[ed] some degree of psychosocial overlay” with regard to
the degree and nature of Plaintiff’s pain complaints. The ALJ
ignored the fact that none of Plaintiff’s treating doctors have
suggested that Plaintiff has been magnifying or exaggerating his
symptoms. This type of selective cherry-picking of the record is
improper. See, e.g., Meadors v. Astrue, 370 F. App’x 179, 185, 2010
WL 1048824, at *4, n. 2 (2d Cir. Mar. 23, 2010) (citation omitted);
Royal v. Astrue, No. 5:11–CV–456(GTS/ESH), 2012 WL 5449610, at *6
conflicts in the record, they cannot pick and choose only evidence
from the same sources that supports a particular conclusion)
Erroneous RFC Assessment
The ALJ’s RFC assessment in this case necessarily was affected
by and indeed, based in part upon, his determinations at step two
with regard to which of Plaintiff’s impairments were severe, his
determinations at step three regarding listing equivalency, his
assessment of treating source opinions, and his evaluation of
Plaintiff’s credibility. As the Court has found that remand is
appropriate as to all of these issues, reconsideration of the RFC
will be necessary.
Errors In Connection With the VE’s Testimony
At step five, the burden is on the Commissioner to prove that
“there is other gainful work in the national economy which the
claimant could perform.” Balsamo v. Chater, 142 F.3d 75 (2d Cir.
1998). A VE’s opinion in response to an incomplete hypothetical
question cannot provide substantial evidence to support a denial of
disability. See DeLeon v. Secretary of Health and Human Servs., 734
F.2d 930, 936 (2d Cir. 1984). In light of the errors that occurred
earlier in the sequential evaluation, discussed above, it is likely
that the RFC assessment will have to be re-formulated. If that is
the case, the hypotheticals posed to the VE also will be affected.
Plaintiff also asserts a procedural error, namely, that the
VE’s testimony should be stricken because he did not receive notice
that the VE would be testifying telephonically rather than via
videoconference hearing stated that the VE also would appear by
videoconference. At the hearing, however, the VE testified via
telephone. The Commissioner has misapprehended Plaintiff’s argument
and therefore did not address it.
Although the Second Circuit has not ruled on this precise
issue, Plaintiff’s contention has found strong support from the
district courts in this Circuit and elsewhere. E.g., Koutrakos v.
Astrue, 906 F. Supp.2d 30, 34 (D. Conn. 2012) (ALJ committed error
regulations and receiving and considering telephonic testimony from
vocational expert over timely objection by claimant’s counsel);
Edwards v. Astrue, 3:10-cv-1017, 2011 WL 3490024, at *7 (D. Conn.
Aug. 10, 2011) (collecting cases). The Court agrees with these
cases that the ALJ’s receipt of telephonic testimony from the VE
was in violation of the SSA regulation in effect at the time of
Plaintiff’s 2011 hearing. See id.; see also Decker v. Commissioner
of Soc. Sec., No. 2:12–CV–00454, 2013 WL 4830961, at *5-6 (S.D.
Ohio Sept. 10, 2013). The Court notes that Plaintiff’s non-attorney
representative did not object to the appearance of the VE by
conclusions. However, since the Court already is remanding for a
new hearing, it is unnecessary to determine whether this claim of
procedural error was preserved and, if so, was sufficiently harmful
to warrant remand.
“Sentence four of Section 405(g) provides district courts with
the authority to affirm, reverse, or modify a decision of the
Commissioner ‘with or without remanding the case for a rehearing.’”
Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42
U.S.C. § 405(g)). Here, the ALJ has misapplied the relevant legal
standards, making further administrative proceedings before the
Commissioner necessary. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996) (citation omitted).
Although Plaintiff argues that a remand
solely for the calculation of benefits is merited, the Court finds
that remand is the more appropriate remedy, as “further findings or
a clearer explanation for the decision” would help to assure the
proper disposition of Plaintiff’s claim.
Id. (citation omitted).
The Court is aware of the delays that regrettably have occurred in
this case; however, delay alone is not a proper basis for remand
solely for calculation of benefits. Bush v. Shalala, 94 F.3d 40, 46
(2d Cir. 1996) (citation omitted).
In addition, Plaintiff has requested a remand pursuant to
sentence six of Section 405(g)2 to consider additional medical
evidence that was not before the ALJ in 2011. Since the Court is
granting a sentence four remand, the request for a sentence six
remand is moot. However, the new medical evidence may be relevant
and material to the disability claim at issue here, even though the
records post-date the ALJ’s decision. See, e.g., Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004) (finding that medical evidence
generated after the ALJ rendered his decision is not irrelevant
condition may demonstrate that, during the relevant time period,
condition “was far more serious than previously thought”).
As noted above, Plaintiff has filed a new DIB claim
an onset date of July 23, 2011, the day after ALJ Pang’s decision.
This claim is still in administrative proceedings. It does not
appear that ALJ Moskal treated Plaintiff’s second DIB claim as an
implied request to reopen the first DIB proceeding. Likewise, it
does not appear that the Commissioner has reopened Plaintiff’s
first DIB claim. Accordingly, unless the Commissioner elects to
consolidate the second DIB claim with the DIB claim at issue here,
this Court’s remand covers the period from January 17, 2008, the
In contrast to a remand under sentence four, a sentence six remand does not
involve the district court making a judgment as to the correctness of the
Commissioner’s decision. Melkonyan v. Sullivan, 111 S. Ct. 2157, 2163 (1991).
In addition, the district court retains jurisdiction over the case following a
sentence six remand. Id.; see also Correa v. Sullivan, No. 92 Civ. 0408(LLS),
1992 WL 367116, at *2 (S.D.N.Y. Nov. 24, 1992).
alleged onset date in the first DIB claim, to the date of ALJ
Pang’s decision regarding that claim on July 22, 2011.
For the foregoing reasons, the decision of the Commissioner
pleadings is denied, and Plaintiff’s motion for judgment on the
pleadings is granted to the extent that this case is remanded to
the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g)
Decision and Order. Plaintiff’s motion for remand pursuant to
sentence six is denied as moot. The Clerk of the Court is directed
to close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
December 18, 2014
Rochester, New York
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