Lasker v. Commissioner of Social Security

Filing 15

DECISION AND ORDER granting 9 Motion for Judgment on the Pleadings and denying 12 Motion for Judgment on the Pleadings. This matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. Signed by Hon. Michael J. Roemer on 1/13/2017. (RAZ)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
DONALD RICHARD LASKER, JR.,

15-CV-923-MJR
DECISION AND ORDER

Plaintiff,
-vCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________________
Pursuant to 28 U.S.C. §636(c), the parties have consented to disposition of this
case by a United States Magistrate Judge. (Dkt. No. 14).
Plaintiff Donald Richard Lasker, Jr. brings this action pursuant to 42 U.S.C.
§405(g) seeking judicial review of the final decision of the Commissioner of Social
Security denying him Social Security disability insurance benefits under the Social
Security Act (the “Act”).

Both parties have moved for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

For the following

reasons, Lasker’s motion (Dkt. No. 9) is granted, the Commissioner’s motion (Dkt. No.
12) is denied, and this case is remanded to the Commissioner for further administrative
proceedings consistent with this Decision and Order.
BACKGROUND
I.

Procedural History
On October 17, 2013, Lasker filed an application for a period of disability and

disability insurance benefits (“DIB”) alleging disability since July 3, 2013 due to spinal,
cervical, lumbar disc displacement and severe headaches; diabetes; high blood
pressure; high cholesterol; anxiety disorder; depression disorder; sleep disorder; sleep

apnea; and “spinal injury — cervical/lumbar.”

(See Tr. 78-87; Tr. 182-84). 1

The

application was denied on December 30, 2013, after which Lasker requested a hearing
before an Administrative Law Judge. (Tr. 88-99; 100-01). On January 7, 2015, Lasker,
represented by counsel, appeared before Administrative Law Judge Bruce R.
Mazzarella (the “ALJ”) for a hearing. (Tr. 33-76). On February 27, 2015, the ALJ
issued a decision denying Lasker’s claim. (Tr. 14-32). Lasker thereafter requested
review by the Appeals Council. (Tr. 6-13). On October 13, 2015, the Appeals Council
denied Lasker’s request, making the ALJ’s decision the final decision of the
Commissioner. (Tr. 1-5). This action followed.
II.

Summary of the Evidence
A. Medical Evidence
i.

Physical Impairment Evidence

On March 19, 2013, Lasker suffered a whiplash injury in a motor vehicle
accident. (Tr. 278). Six days later, Veterans Affairs Medical Center (“VAMC”) staff
performed a cervical spine x-ray of Lasker, the results of which showed mild disc space
narrowing, spondylosis at C5-C6, and straightened cervical lordosis. (Tr. 436).
On April 24, 2013, Lasker was examined by Dr. L.N. Hopkins at UB
Neurosurgery. Lasker reported persistent neck pain since the motor vehicle accident,
numbness in three fingers of his right hand, tingling in the top of his head, and slight
tingling in the left anterior thigh region. Dr. Hopkins described Lasker’s whiplash injury
as minor, noting that it caused him some neck pain but no neurologic dysfunction. He
found Lasker to be 25% temporarily impaired and recommended an MRI scan and
chiropractic treatment.
1

(Tr. 278-79).

On July 3, 2013, Lasker visited Dr. Hopkins

References to “Tr.” are to the administrative record in this case.
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complaining of headaches and numbness in his right arm. Dr. Hopkins’ review of an
MRI scan indicated significant degenerative disease with disc bulging in the paramedian
region at two levels in the mid cervical spine. Dr. Hopkins recommended that Lasker
not work for three to four months and that he attend physical therapy. (Tr. 284-85). 2 At
an October 7, 2013 appointment at UB Neurosurgery, Lasker was directed to stay off
work for eight more weeks. (Tr. 286-87).
On October 14, 2013, Lasker visited Dr. Nicolas Saikali at the Dent Neurologic
Institute complaining of headaches and neck pain. Dr. Saikali diagnosed him with,
among other things, a closed head injury, chronic posttraumatic headaches, and
myofascial pain. (Tr. 291-93).
On December 10, 2013, Dr. Abrar Siddiqui performed a consultative internal
medicine examination of Lasker.

Lasker reported almost daily headaches with an

intensity of ten out of ten, intermittent neck pain with an intensity of eight out of ten, and
a history of sleep apnea since 2004 with use of a CPAP machine at home.

On

examination, Lasker was in no acute distress, his gait was normal, he could walk on his
heels and toes without difficulty, his squat was full, he used no assistive devices, he
could rise from a chair without difficulty, and his cervical spine ranges of motion were
full, although he did complain of pain while rotating his neck. His lumbar spine ranges
of motion were full, straight leg raising tests were negative bilaterally, he had no sensory
deficits, and his strength was 5/5 in all four extremities. A lumbar spine x-ray was
negative. Based on the foregoing, Dr. Siddiqui opined that there are no limitations in
Lasker’s ability to sit, stand, climb, push, pull, or carry heavy objects. (Tr. 543-49).

2

Up until the date of this appointment, Lasker had been working in construction. (Tr. 202; 208).
He has not worked since the appointment. (Tr. 43; 208).
-3-

On January 23, 2014, Lasker was examined for vertigo at the VAMC.

He

reported having vertigo for at least two years and that his condition worsened after the
March 2013 motor vehicle accident. He described the vertigo as intermittent, with each
episode lasting for days. (Tr. 590). On February 5, 2014, Lasker visited Dr. Ernesto
Diaz-Ordaz at the VAMC complaining of dizziness, nausea, vomiting, and occasional
vertigo episodes that last less than one day.

Dr. Diaz-Ordaz, a neuro-otologist,

diagnosed dizziness of undetermined cause, possibly a migraine variant of Meniere’s
disease, 3 and sensory neuro hearing loss in his left ear. (Tr. 628-29). Lasker followed
up with Dr. Diaz-Ordaz on April 30, 2014, reporting that his dizziness was unchanged
and that he experienced episodic vertigo with nausea and left ear tinnitus. Dr. DiazOrdaz recommended that Lasker not work until further notice. (Tr. 711-12).
Lasker also visited the VAMC on March 14, 2014 for evaluation and treatment of
his vertigo. (Tr. 580-82). Six days later, on March 20, 2014, he underwent a balance
performance evaluation at the Dent Neurologic Institute.
abnormal.

(Tr. 887-88).

The test results were

On April 14, 2014, Lasker was evaluated at Dent for

headaches and dizziness. He was assessed with chronic post-traumatic headache,
migraine without aura, myofascial pain, cervicalgia, and dizziness. (Tr. 728-30).
On June 17, 2014, Lasker treated with chiropractor Lance Formolo regarding his
chronic lower back pain. (Tr. 788-92). He received trigger point injections for his pain
at Dent on May 12 and June 23, 2014. (Tr. 719; 725). On June 26, 2014, he visited the
VAMC complaining of three vertigo episodes within the last month, one of which
included light-headedness and chest pain. (Tr. 842-44). He again visited the VAMC on
3

Meniere’s disease is “an affection characterized clinically by vertigo, nausea, vomiting, tinnitus,
and fluctuating and progressive sensory hearing loss associated with endolymphatic hydrops.”
Stedman’s Medical Dictionary (28th ed. 2006).
-4-

July 28, 2014 complaining of migraines, headaches, and dizziness.

He received a

diagnosis of cervicogenic headaches, migraines, dizziness, and cervical spine disc
disease. (Tr. 782-87).
On August 5, 2014, Lasker visited Russell Talma, Dr. Diaz-Ordaz’s physician
assistant, for a follow up regarding his episodic vertigo. Lasker complained of one to
two vertigo episodes a week, with each episode causing hours of spinning and requiring
a day of recovery. Talma diagnosed Lasker with vertigo and stated he could not work
for an indefinite period of time. (Tr. 809-10). Lasker saw Talma again on August 26,
2014 for vertigo and Meniere’s symptoms. (Tr. 886).
On August 13, 2014, Dr. Diaz-Ordaz and Talma completed a “Medical
Examination for Employability Assessment, Disability Screening, and Alcoholism/Drug
Addiction Determination.” They opined that Lasker is moderately limited in walking,
standing, sitting, lifting, carrying, using his hands, using the stairs and climbing, that he
is very limited in pushing, pulling, bending, and climbing ladders, and that he should not
use ladders or engage in fall-risk activities or any activity requiring a change in head
position, such as bending or standing. (Tr. 126-27).
ii. Mental Impairment Evidence
On June 26, 2013, Dr. Sumera Shah, Lasker’s primary care physician, diagnosed
him with post-traumatic stress disorder (“PTSD”). (Tr. 427-33). An August 22, 2014
PTSD screening at the VAMC also came back positive. (Tr. 800-01). On July 16, 2013,
Lasker reported to Dr. Angela Gannon a six-year history of depression, feelings of
anxiety without panic attacks, and recurring dreams related to his past work as a
corrections officer. On examination, Lasker’s thought processes were tangential while

-5-

his mood was good with euthymic affect. Dr. Gannon diagnosed Lasker with anxiety
disorder not otherwise specified (“NOS”) but ruled out depressive disorder.
assigned a Global Assessment of Functioning (“GAF”) score of 55.

She

(Tr. 419-21).

Lasker continued to treat with Dr. Gannon from September 17, 2013 to May 20, 2014.
(Tr. 388; 623; 661; 869).
On October 21, 2013, Tricia Masecchia, a Licensed Clinical Social Worker,
diagnosed Lasker with depressive disorder. (Tr. 382-83).
On December 10, 2013, Dr. Susan Santarpia performed a consultative
psychiatric evaluation of Lasker and diagnosed him with anxiety disorder NOS and
depressive disorder NOS.

Dr. Santarpia opined that Lasker could understand and

follow simple directions and instructions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn new tasks, make
appropriate decisions, relate adequately with others, and appropriately deal with stress
within normal limits. She found Lasker to be mildly impaired in performing complex
tasks independently. (Tr. 537-42).
B. Administrative Hearing Testimony
Lasker was born in 1969. (Tr. 38). He is a high school graduate and a military
veteran, having served in the Air Force from 1987 to 1990, the Air Force Reserve from
1990 to 1995, and the Air National Guard from 1995 to 1997. (Tr. 10; 208; 1010). He
previously worked as a corrections officer, equipment operator, and construction
worker, but he has been out of work since his July 3, 2013 alleged onset date. (Tr.
208). Lasker lives alone, prepares his own meals, washes dishes once or twice a week,

-6-

does his own laundry, and grocery shops with his son and brother. (Tr. 38; 57-58). He
has a driver’s license but does not own a vehicle. (Tr. 41).
Lasker testified that the “biggest problem” that interferes with his ability to work is
Meniere’s disease.

(Tr. 45).

His symptoms include vertigo attacks, tinnitus, ear

problems, balance problems, nausea, and vomiting. (Tr. 46). He averages two vertigo
attacks a week, with each attack lasting one hour to three to four hours. (Id.). He
spends two to three days in bed after each attack. (Id.). His second biggest problem is
side effects from his medication, while his third biggest problem is neck and back pain,
including headaches. (Tr. 47-48). He also suffers from sleep apnea, depression, and
anxiety. (Tr. 54-56).
Lasker testified that he uses a cane when walking more than 100 yards. (Tr. 4647). He can walk about 300 feet with his cane. (Tr. 60). He can sit for two hours at a
time and for a total of three to four hours in an eight-hour workday, stand for one to two
hours at a time and for a total of three to four hours in an eight-hour workday, and
alternate sitting and standing for a total of four hours in an eight-hour workday. (Tr. 5860).
DISCUSSION
I.

Scope of Judicial Review
The Court’s review of the Commissioner’s decision is deferential. Under the Act,

the Commissioner’s factual determinations “shall be conclusive” so long as they are
“supported by substantial evidence,” 42 U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as adequate to support [the]
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks

-7-

and citation omitted). “The substantial evidence test applies not only to findings on
basic evidentiary facts, but also to inferences and conclusions drawn from the facts.”
Smith v. Colvin, 17 F. Supp. 3d 260, 264 (W.D.N.Y. 2014). “Where the Commissioner’s
decision rests on adequate findings supported by evidence having rational probative
force, [the Court] will not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). Thus, the Court’s task is to ask “‘whether
the record, read as a whole, yields such evidence as would allow a reasonable mind to
accept the conclusions reached’ by the Commissioner.” Silvers v. Colvin, 67 F. Supp.
3d 570, 574 (W.D.N.Y. 2014) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)).
While the applicable standard of review is deferential, this does not mean that the
Commissioner’s decision is presumptively correct. The Commissioner’s decision is, as
described above, subject to remand or reversal if the factual conclusions on which it is
based are not supported by substantial evidence. Further, the Commissioner’s factual
conclusions, even if supported by substantial evidence, must be applied to the correct
legal standard. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Failure to apply the
correct legal standard is reversible error. Id.
II.

Standards for Determining “Disability” Under the Act
A “disability” is an “inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A). The Commissioner may conclude
that a claimant is disabled “only if his physical or mental impairment or impairments are

-8-

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). The Commissioner must make these determinations based on “objective
medical facts, diagnoses or medical opinions based on these facts, subjective evidence
of pain or disability, and . . . [the claimant’s] educational background, age, and work
experience.” Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (first alteration
in original) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)).
To guide the assessment of whether a claimant is disabled, the Commissioner
has

promulgated

a

“five-step

sequential

evaluation

process.”

20

C.F.R.

§404.1520(a)(4). These steps proceed as follows.
First, the Commissioner determines whether the claimant is “working” and
whether that work “is substantial gainful activity.” Id. §404.1520(b). If the claimant is
engaged in substantial gainful activity, the claimant is “not disabled regardless of [his or
her] medical condition or . . . age, education, and work experience.” Id. Second, if the
claimant is not engaged in substantial gainful activity, the Commissioner asks whether
the claimant has a “severe impairment.” Id. §404.1520(c). To make this determination,
the Commissioner asks whether the claimant has “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do
basic work activities.” Id. As with the first step, if the claimant does not have a severe
impairment, he or she is not disabled regardless of any other factors or considerations.

-9-

Id. Third, if the claimant does have a severe impairment, the Commissioner asks two
additional questions: first, whether that severe impairment meets the Act’s duration
requirement, and second, whether the severe impairment is either listed in Appendix 1
of the Commissioner’s regulations or is otherwise “equal to” an impairment listed in
Appendix 1. Id. §404.1520(d). If the claimant satisfies both requirements of step three,
the Commissioner will find that he or she is disabled without regard to his or her age,
education, and work experience. Id.
If the claimant does not have the severe impairment required by step three, the
Commissioner’s analysis proceeds to steps four and five.

Before doing so, the

Commissioner must “assess and make a finding about [the claimant’s] residual
functional capacity [“RFC”] based on all the relevant medical and other evidence” in the
record. Id. §404.1520(e). RFC “is the most [the claimant] can still do despite [his or
her] limitations.”

Id. §404.1545(a)(1).

The Commissioner’s assessment of the

claimant’s RFC is then applied at steps four and five. At step four, the Commissioner
“compare[s] [the claimant’s] residual functional capacity assessment . . . with the
physical and mental demands of [his or her] past relevant work.” Id. §404.1520(f). If,
based on that assessment, the claimant is able to perform his or her past work, the
Commissioner will find that the claimant is not disabled within the meaning of the Act.
Id.

Finally, if the claimant cannot perform his or her past relevant work, the

Commissioner considers whether, based on the claimant’s residual functional capacity
assessment, age, education, and work experience, the claimant “can make an
adjustment to other work.” Id. §404.1520(g)(1). If the claimant can adjust to other work,

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he or she is not disabled. Id. If, however, the claimant cannot adjust to other work, he
or she is disabled within the meaning of the Act. Id.
The burden through steps one through four described above rests on the
claimant. If the claimant carries his burden through the first four steps, “the burden then
shifts to the [Commissioner] to show there is other gainful work in the national economy
which the claimant could perform.” Carroll v. Sec’y of Health & Human Servs., 705 F.2d
638, 642 (2d Cir. 1983).
III.

The ALJ’s Decision
The ALJ followed the required five-step process for evaluating disability claims.

Under step one, the ALJ found that Lasker has not engaged in substantial gainful
activity since July 3, 2013, the alleged onset date of his disability. (Tr. 19). At the
second step, the ALJ determined that Lasker has the following severe impairments:
Meniere’s disease with vertigo; chronic neck and back discomfort; anxiety; depression;
PTSD; and sleep apnea. (Id.). At step three, the ALJ found that Lasker does not have
an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. (Tr. 20). Before proceeding to step four, the
ALJ assessed Lasker’s RFC as follows:
[T]he claimant has the residual functional capacity to sit for
an 8-hour workday with only normal breaks and meal
periods; stand and/or walk for an 8-hour workday with only
normal breaks and meal periods; and lift and carry 50
pounds occasionally and 25 pounds frequently.
The
claimant should not work at unprotected heights. Further,
the claimant is limited to simple, repetitive and routine tasks.
(Tr. 21). Proceeding to step four, the ALJ determined that Lasker could not perform his
past relevant work as a corrections officer or general contractor. (Tr. 26). At the fifth

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step, the ALJ considered Lasker’s age, education, work experience, RFC, and the
testimony of a vocational expert to conclude that he can perform jobs that exist in
significant numbers in the national economy, including Packing Machine Tender,
Laundry Worker II, Plastic Molding Machine Operator, and Cafeteria Attendant. (Tr. 2627). Accordingly, the ALJ found that Lasker could adjust to other work and, therefore,
that he has not been under a disability within the meaning of the Act from July 3, 2013
through the date of his decision. (Tr. 27).
IV.

Lasker’s Challenges
Lasker raises three objections to the Commissioner’s decision: (1) the ALJ failed

to develop the record by not requesting a medical source statement from a treating
source; (2) the ALJ failed to properly weigh the employability assessment prepared by
Dr. Diaz-Ordaz and his physician assistant, Russell Talma; and (3) the ALJ improperly
assessed his credibility. The Court addresses each objection in turn.
A. Medical Source Statement
The Commissioner’s regulations provide that medical reports should include “[a]
statement about what you [i.e., the claimant] can still do despite your impairment(s) . . . .
Although we will request a medical source statement about what you can still do despite
your impairment(s), the lack of the medical source statement will not make the report
incomplete.” 20 C.F.R. §404.1513(b)(6); see also id. §404.1527(a)(2) (“Evidence that
you submit or that we obtain may contain medical opinions.”) (emphasis added). The
Second Circuit has interpreted these regulations as indicating that the ALJ’s failure to
request a medical source statement does not require remand if the record contains
sufficient evidence from which the claimant’s residual functional capacity can be

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determined. See Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (summary order)
(2d Cir. 2013); see also Pellam v. Astrue, 508 F. App’x 87, 89-90 (2d Cir. 2013)
(summary order) (finding no error in failure to acquire medical source statement from
claimant’s treating physician where the ALJ had the claimant’s treatment notes and
relied upon an opinion from a consulting examiner).
Here, although the ALJ appears not to have requested a formal medical source
statement from Lasker’s treating sources, the record contains sufficient evidence from
which the ALJ could assess his RFC — in particular, an employability assessment by
Dr. Diaz-Ordaz and Talma, a consultative internal medicine examination by Dr. Siddiqui,
and a consultative psychiatric evaluation by Dr. Santarpia. The ALJ cited all three
opinions in determining Lasker’s RFC. (Tr. 24-25). In addition to the opinion evidence,
the record contains hundreds of pages of treatment notes from Lasker’s treating
physicians at the VAMC and elsewhere. On account of the extensive opinion evidence
and treatment notes, the case record is sufficiently complete such that the ALJ’s failure
to request a medical source statement from a treating source does not require remand. 4
B. Treating Provider Opinions
Lasker also argues that the ALJ failed to properly assess Dr. Diaz-Ordaz’s
opinion in the August 13, 2014 employability assessment. 5 Dr. Diaz-Ordaz opined that
Lasker is moderately limited in walking, standing, sitting, lifting, carrying, using his
hands, using the stairs and climbing, that he is very limited in pushing, pulling, bending,
4

Haymond v. Colvin, No. 1:11-CV-0631(MAT), 2014 WL 2048172 (W.D.N.Y. May 19, 2014), relied
upon by Lasker in his memoranda of law, is inapposite. Unlike the instant action, the ALJ in Haymond did
not rely upon any opinion evidence at all regarding the plaintiff’s mental impairments in determining her
RFC. Id. at *7-8.
5
The assessment was jointly prepared by Dr. Diaz-Ordaz and his physician assistant, Russell
Talma. Because Talma is not a “treating source” under the regulations, see 20 C.F.R. §§404.1502;
404.1513(a), Lasker’s objection is properly directed at Dr. Diaz-Ordaz’s opinion, only.
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and climbing ladders, and that he should not use ladders or engage in fall-risk activities
or any activity requiring a change in head position.
It appears that the ALJ found Dr. Diaz-Ordaz to be a “treating source.” See 20
C.F.R. §404.1502. 6 Under the “treating physician rule,” the ALJ is required to give
controlling weight to a treating source’s opinion when the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.”

Id.

§404.1527(c)(2). If the ALJ elects not to give a treating source’s opinion controlling
weight, he must consider the factors in 20 C.F.R. §404.1527(c) to determine the weight
to give the opinion. These factors are the frequency of examination, the length, nature,
and extent of the treatment relationship, the amount of evidence supporting the opinion,
the consistency of the opinion with the record as a whole, whether the treating source is
a specialist, and any other factor that tends to support or contradict the opinion. See id.
§404.1527(c). The ALJ’s failure to provide good reasons for not crediting a treating
source’s opinion ordinarily requires remand. See Zabala v. Astrue, 595 F.3d 402, 409
(2d Cir. 2010); see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (“We do
not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician[’s] opinion . . . .”).
6

“Treating source means your own physician, psychologist, or other acceptable medical source
who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment
relationship with an acceptable medical source when the medical evidence establishes that you see, or
have seen, the source with a frequency consistent with accepted medical practice for the type of
treatment and/or evaluation required for your medical condition(s). We may consider an acceptable
medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice
a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for
your condition(s). We will not consider an acceptable medical source to be your treating source if your
relationship with the source is not based on your medical need for treatment or evaluation, but solely on
your need to obtain a report in support of your claim for disability. In such a case, we will consider the
acceptable medical source to be a nontreating source.” 20 C.F.R. §404.1502.
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Here, the ALJ gave “some weight” to Dr. Diaz-Ordaz’s opinion that Lasker should
not use ladders or engage in fall-risk activities. (Tr. 24). It appears that the ALJ gave
no weight at all to Dr. Diaz-Ordaz’s opinion concerning Lasker’s exertional limitations.
(Id.). 7

The ALJ instead gave “significant weight” to Dr. Siddiqui’s consultative

examination opinion that Lasker has no limitations in his ability to sit, stand, climb, push,
pull, or carry heavy objects. (Id.). Because the ALJ did not give Dr. Diaz-Ordaz’s
opinion controlling weight, he should have applied the factors in §404.1527(c) to
determine what weight to give the opinion. It is not clear whether and to what extent the
ALJ considered the applicable factors. While the ALJ commented that “[t]he medical
evidence of record does not support the exertional limitations” cited in Dr. Diaz-Ordaz’s
assessment (id.), this conclusory statement does not satisfy the treating physician rule.
See Svay v. Colvin, No. 15-cv-6080, 2016 WL 922085, at *4 (W.D.N.Y. Mar. 11, 2016)
(remanding where ALJ discounted treating source’s opinion for the conclusory reason
that it was “not supported by the medical evidence of record”); see also Boyd v. Colvin,
No. 6:15-CV-06667(MAT), 2016 WL 7155241, at *4 (W.D.N.Y. Dec. 8, 2016)
(remanding because it was not clear whether and to what extent the ALJ considered the
applicable factors in reviewing the treating source’s opinion). The Court cannot glean
from the record why the ALJ discounted Dr. Diaz-Ordaz’s opinion and assigned greater
weight to Dr. Siddiqui’s opinion.

The ALJ’s failure to consider the factors in

§404.1527(c) in evaluating Dr. Diaz-Ordaz’s opinion and to provide good reasons for
the weight he assigned to the opinion constitutes a violation of the treating physician
rule.
7

To the extent the ALJ assigned some other weight to this portion of Dr. Diaz-Ordaz’s opinion
without identifying the weight given, the ALJ committed legal error requiring remand. See Gagovits v.
Colvin, No. 15-CV-3246(JS), 2016 WL 4491537, at *9 (E.D.N.Y. Aug. 25, 2016).
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The Commissioner argues, however, that remand is not warranted here because
the ALJ’s RFC determination would have been no different had he analyzed Dr. DiazOrdaz’s opinion in compliance with the treating physician rule. See Zabala, 595 F.3d at
409 (“[W]here application of the correct legal principles to the record could lead [only to
the same] conclusion, there is no need to require agency reconsideration.”) (alterations
in original) (quoting Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Contrary to
the Commissioner’s argument, Dr. Diaz-Ordaz’s opinion is much more favorable to
Lasker than the opinion of Dr. Siddiqui to which the ALJ assigned significant weight.
Had the ALJ properly applied the treating physician rule to Dr. Diaz-Ordaz’s opinion, he
might very well have assigned the opinion more weight and reached a different RFC
determination. See Cottrell v. Colvin, No. 15-CV-702-FPG, --- F. Supp. 3d ----, 2016
WL 4523187, at *5 (W.D.N.Y. Aug. 30, 2016); Sottasante v. Colvin, No. 1:15-CV00419EAW, --- F. Supp. 3d ----, 2016 WL 5234685, at *14 (W.D.N.Y. Sept. 22, 2016). It
therefore cannot be said that the ALJ’s failure to correctly apply the treating physician
rule is harmless error, and this matter must be remanded for further proceedings. On
remand, the ALJ is instructed to consider the factors listed in 20 C.F.R. §404.1527 when
evaluating Dr. Diaz-Ordaz’s opinion and to expressly state the weight given to all parts
of the opinion.
C. Credibility
Lasker also argues that the ALJ improperly assessed his credibility. “A treating
physician’s opinion is a significant part of the evidence that is weighed in determining
credibility of a claimant under 20 C.F.R. §404.1529.” Gagovits, 2016 WL 4491537, at
*13 (quoting Garner v. Colvin, No. 13-CV-4358(JCF), 2014 WL 2936018, at *10

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(S.D.N.Y. June 27, 2014)). Therefore, because the Court is remanding this matter for
proper application of the treating physician rule, the ALJ should readdress Lasker’s
credibility on remand as well. Id.
CONCLUSION
For the foregoing reasons, Lasker’s motion for judgment on the pleadings (Dkt.
No. 9) is granted, the Commissioner’s motion for judgment on the pleadings (Dkt. No.
12) is denied, and this matter is remanded to the Commissioner for further
administrative proceedings consistent with this Decision and Order.
The Clerk of Court shall take all steps necessary to close this case.
SO ORDERED.
Dated:

January 13, 2017
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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