Lovett v. Colvin

Filing 21

DECISION AND ORDER granting 12 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. This matter is remanded to the Commissioner for further administrative proceedings. Signed by Hon. Charles J. Siragusa on 12/1/17. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
BENNIE H. LOVETT, JR.,
Plaintiff

DECISION AND ORDER

-vs16-CV-6562 CJS
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________

APPEARANCES
For the Plaintiff:

Kenneth R. Hiller, Esq.
Elizabeth A. Haungs, Esq.
Law Offices of Kenneth Hiller
60000 North Bailey Avenue, Suite 1A
Amherst, New York 14226

For the Defendant:

Heetano Shamsoondar, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614

INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Bennie Lovett (“Plaintiff”) for Social Security Disability
1

Insurance Benefits. Now before the Court is Plaintiff’s motion (Docket No. [#12]) for
judgment on the pleadings and Defendant’s cross-motion [#16] for judgment on the
pleadings. Plaintiff’s application is granted and Defendant’s application is denied.
FACTUAL BACKGROUND
The reader is presumed to be familiar with the parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the
administrative record [#8] and will reference it only as necessary to explain this Decision
and Order.
Plaintiff, born in 1961, claims to be disabled due primarily to back pain,
beginning on April 17, 2012. Prior to the alleged onset date, Plaintiff had completed the
Tenth Grade and had worked primarily at janitorial jobs, first at Dansville Junior High
School (1998-2000) and later at the State University of New York at Geneseo (20002012). (228, 469). Those janitorial jobs involved heavy lifting. In 2011, Plaintiff injured
his back at work while lifting sofas. (314). Plaintiff experienced severe back pain and
used a cane to ambulate. Orthopedic surgeon Raman Dhawan, M.D. (“Dhawan”)
diagnosed severe spinal stenosis, and performed surgery. After surgery, Plaintiff
experienced significant improvement, and was able to walk without a cane or other
assistive device. By January 2012, Dhawan had cleared Plaintiff to return to work
without any lifting restrictions.
In March 2012, Plaintiff returned to Dhawan for routine surgical follow-up, at
which time he complained that he was having increased back pain and discomfort, and
difficulty bending over and picking up objects. (275). Upon examination Dhawan found
that Plaintiff had decreased range of motion. Dhawan advised Plaintiff to use Ibuprofen
2

for pain.
On April 20, 2012, Dhawan reported that Plaintiff was continuing to complain of
back pain, though without radiculopathy or weakness in the legs. (277). Dhawan noted
that following surgery in 2011, Plaintiff had been “doing extremely well,” but then
apparently over-exerted himself, resulting in increased pain. (277). Dhawan opined that
Plaintiff could continue working, but with with lifting restrictions. (278).
However, four days later, on April 24, 2012, Plaintiff returned to Dhawan, “stating
that he is unable to carry out lifting 50-100 lbs all the time.” (279). Dhawan provided
Plaintiff with a note removing him from work, and asked him to return in six weeks.
(279). Dhawan stated that Plaintiff needed to continue with non-operative treatment,
and opined that if Plaintiff’s condition did not improve he might “need a fusion surgery
[consisting of] L3-S1 interbody fusion.” (279).
In May 2012 Plaintiff went to physical therapy treatment, where he complained of
constant severe pain. (281-282). On May 22, 2012, Dhawan reported that Plaintiff was
complaining of increased “excruciating” back pain after going swimming. (283). Plaintiff
claimed to be unable to walk, stand or sit properly. (283). Dhawan requested a CT
scan, and opined that Plaintiff should continue with non-operative treatment including
over the counter pain and anti-inflammatory medication. (284).
On June 5, 2012, a CT scan was taken of Plaintiff’s lumbar spine. (285-286). Dr.
Dhawan later summarized the findings as “show[ing] the patient has a good
laminectomy from LS3-S1 [(referring to the 2011 surgery)] [and] mild stenosis at L2-L3.”
(296).
On June 18, 2012, Plaintiff returned to physical therapy and indicated that his
3

pain had improved by 80%. (290) (“The patient reports 80% improvement with pain and
ADL tolerance over the last 4 weeks.”). Plaintiff stated that he still had pain radiating
down one leg. (290). Plaintiff reportedly stated that he was “eager to return to work,”
but did not know if he could handle it yet. (290). The therapist noted “significant
improvements in upright posture and . . . decreased trunk lean” while walking. (290).
However, just ten days later on June 28, 2012, Plaintiff reportedly told Dhawan
that his pain was not improving, and that he wanted to proceed with “fusion” surgery.
(294). At that time Plaintiff was taking a combination of Cyclobenzaprine, Oxycodone
and Ibuprofen. (294). Upon examination, Plaintiff had antalgic gait and decreased
range of movement, but negative straight-leg raising tests and normal strength and
sensation. (294). Dhaman indicated that surgery would need to wait until Worker’s
Compensation gave approval. (295). In the meantime Dhawan opined that Plaintiff
remained “100%” temporarily disabled. (295).
On July 23, 2012, Plaintiff’s physical therapists discharged him from further
treatment because he had “failed to make significant gains with Physical Therapy.”
(298).1
On August 3, 2012, Dhawan commented on the impending surgery by stating
that it would consist of “L2-S1 fusion,” and that “[s]ince the patient has developed
stenosis at L2-L3 he would also need decompression and fusion at L2-L3.” (297).
On September 27, 2012, Dhawan noted that Plaintiff still planned to have
surgery and had “marked degenerative changes.” (301).

1

The apparent inconsistency between this report and the prior PT report is not explained.

4

On October 1, 2012, Dhawan performed surgery, to address “L2-S1 lumbar disk
herniation.” (315). The surgery involved the removal of the L3-S1 discs and fusion of
those sections of spine. (318-321).
Following surgery Plaintiff developed “spontaneous [gastrointestinal] bleeding”
related to preexisting cirrhosis of the liver. (516). On October 22, 2012, Plaintiff went to
his primary care physician, Daniel Curtin, M.D. (“Curtin”), to be checked for liver failure.
(517). Curtin opined that Plaintiff was not in liver failure.2
On October 26, 2012, Plaintiff reportedly told Dhawan that he was “doing well,”
that his back pain was “getting better,” and that he had no leg pain at all. (354).
Dhawan further stated, “The patient has been working,” though he also checked a box
on the report indicating that Plaintiff was not working. (354).
On November 5, 2012, Plaintiff returned to see Dr. Curtin for a checkup related
to liver function and a physical examination. (479). Curtin performed a “complete
physical examination” (480), and made no mention of Plaintiff being in pain or
discomfort. Curtin also observed that Plaintiff had no problem walking, and that he had
a “normal gait.” (480). Curtin stated that Plaintiff appeared “well” and in no acute
distress. (479). Plaintiff was able to sit and lie supine. (480). Regarding Plaintiff’s back
and spine, Curtin reported: “Spine: unremarkable, normal spine curvature. . . . Upper
extremity joints: normal. Lower extremity joints: normal. L-S spines: normal.” (480).

2

However, regarding the cirrhosis, Curtin noted that Plaintiff had only recently stopped drinking
and become sober: “He is NOW sober again. Stopped drinking 3-4 weeks ago (after been drinking for
last 5 years.”) (518). Such statement is inconsistent with Plaintiff’s contemporaneous medical records
pertaining to his back problems, in which he either denied drinking alcohol at all (261) or claimed to drink
only occasionally. (314) (“The patient drinks on occasions, but considers himself not to drink at all.”); (356)
(“Denies excessive drinking.”).

5

Despite Plaintiff’s recent back surgery, Curtin made no mention of any lingering back
problems, and, indeed, the only reference to such surgery was that Plaintiff still had a
“left sided drain in place,” which had been placed to address a post-surgery abscess.
(480, 328, 344). Curtin recommended that Plaintiff engage in “daily exercise with goal
of at least 30 minutes 4 x week.” (480).
On December 14, 2012, Dhawan reported that Plaintiff was “doing better” and
did “not have any back pain.” (360). Dhawan stated that Plaintiff was walking, but was
“still us[ing] a cane.” (360). Upon examination, Dhawan reported “good range of
movement” and normal sensation and strength. (360). Dhawan further stated that
Plaintiff was able to stand and walk on his toes and heels. (360).
On January 24, 2013, Harbinder Toor, M.D. (“Toor”) performed a one-time
consultative internal medicine examination at the request of the Commissioner. (465468). Toor reported that Plaintiff appeared to be in “moderate pain,” was using a cane
to ambulate, and was also wearing a back brace. (466). Plaintiff displayed an
“abnormal, slightly wide-based, unsteady and slightly limping” gait. (466). Plaintiff
declined to perform several aspects of the usual examination, including testing of
flexion, extension and rotation of the lumbar spine and straight-leg testing, purportedly
because he was in too much pain. (467). This is odd and unexplained, as Plaintiff
consistently allowed Dhawan to perform range-of-movement tests and straight-legraising tests, even when he claimed to be in “excruciating” pain. (283). Toor noted that
Plaintiff had a normal neurologic exam, full strength in the upper and lower extremities,
and normal fine motor activity in the hands and fingers. (467). Toor opined as follows:
“He has moderate to severe limitations with standing, walking, bending, sitting, and
6

lifting. Pain in the lower back can interfere with his daily physical routine and balance.”
(467-468). However, due to the limited nature of the examination, such opinion
appears to be based primarily, if not entirely, on Plaintiff’s outward presentation and his
subjective statements to Toor, rather than on objective findings.
On the same day as Toor’s examination, January 24, 2013, psychologist Angela
Stewart, Ph.D. (“Stewart”) performed a one-time psychological evaluation of Plaintiff at
the Commissioner’s request, inasmuch as Plaintiff was complaining of depression.
(469-473). Plaintiff indicated that he had been depressed since becoming unable to
work. (469). Plaintiff indicated that he took “oxycodone 5mg 4 to 6 times a day” for
back pain, and also used marijuana three times per day. (469-470). Plaintiff stated that
he had difficulty sleeping due to back pain. (469). Plaintiff’s mental examination was
essentially normal, except that he had “mildly impaired” attention, concentration and
memory. (471). Stewart diagnosed Plaintiff with, inter alia, “adjustment disorder with
depressed mood” and “cannabis abuse,” but opined that he did not have “any
psychiatric problems that would significantly interfere with his ability to function on a
daily basis.” (472). Indeed, Stewart described Plaintiff’s daily activities as follows:
He is able to dress, bath, and groom himself, cook and prepare food, do
general cleaning, laundry, shopping, driving, and taking public
transportation. He needs help from his wife managing money.
Socialization: The claimant says he has numerous friends with whom he
gets together, watches sports, and talks. His family relationships include
his wife, his brother, his sisters, both local and out of town. Hobbies and
interests include sports, model cars, and fishing. He spends a typical day
by getting up, making coffee. He might go visit his neighbors. He may go
to his doctors appointments. Friends might stop by.
(471).
7

On February 1, 2013, Dhawan stated: “Patient is doing better. Patient states that
his back feels good.” (655). Dhawan stated that Plaintiff’s range of movement was
“decreased,” and that he should work on “increas[ing his] range of movement” and
walking for exercise. (655).
On May 17, 2013, Dhawan noted that Plaintiff claimed to be “doing better” “and
on the whole he is doing well.” (800). Upon physical examination, Dhawan stated:
“Patient has good range of movement, though decreased. Sensation and strength is
normal. He could stand on his toes, could stand on his heels.” (800).
On July 19, 2013, Dhawan reported that Plaintiff had “improved significantly”
since his surgery, and was doing “extremely well” (647), though he remained “100%”
temporarily disabled. (648).
On August 30, 2013, Dhawan reported that Plaintiff was “doing very well,” with
“some dull pain in his lower back” but no radiculopathy. (643). Plaintiff continued to use
cyclobenzaprine and oxycodone. (643). Dhawan stated that Plaintiff had decreased
range of movement, but normal sensation and strength in his legs. (643). Dhawan
opined that Plaintiff should “cut down on his medication” and “continue with physical
therapy of his back” to improve range of movement and strength. (644).
On October 4, 2013, Dhawan reported: “[Patient] I doing better. He states that
he has minimal discomfort. He has no radiculopathy.” (639). Dhawan stated that
Plaintiff’s range of movement was “good” and that straight leg raising tests were
negative. (639). Overall, Dhawan opined that Plaintiff was “doing extremely well.” (639).
On January 10, 2014, Dhawan reported: “The patient states that he is doing
better. He has some dull pain but by and large he is doing better. According to the
8

patient, he is able to carry out most of his activities within restriction. His range of
movement is acceptable. When his activity level increases, the patient gets
discomfort.” (635).
On February 14, 2014, Dhawan stated that Plaintif was “doing better,” and “on
the whole, he seems to be doing well.” (630). On March 14, 2014, Dhawan reported
that Plaintiff “ha[d] some discomfort in his back,” but was “doing better” and only taking
“pain medication on and off.” (627).
On April 18, 2014, Plaintiff reportedly told Dhawan that he was “doing better after
surgery, but still has some dull pain his back.” (623). Dhawan stated that Plaintiff
“should continue with exercises and work on his core muscles,” and “remain[ed] 100%
disabled.” (624).
On May 23, 2014, Dr. Dhawan reported that Plaintiff was was doing well and
walking better, but had dull pain in his back. (619) (“The patient states he is doing well.
he denies any radiculopathy. He has some dull pain in his back. He is walking
better.”). Dhawan noted that Plaintiff was “not currently working.” (619). Dhawan
stated that radiographic studies of the lumbar spine “show excellent fusion between L2
and S1.” (619). Dhawan performed a physical exam and noted, “He has decreased
range of movement. He has a negative straight leg raising test. Sensation and
strength are normal.” (619). Overall, Dhawan commented that Plaintiff was doing well
but had dull back pain. (620). Dhawan stated that Plaintiff remained “100%” temporarily
disabled. (620).
On July 11, 2014, Dhawan stated that Plaintiff was doing well post-surgery, and
was “walking better,” with only “some dull back pain.” (821). Dhawan reported that
9

Plaintiff complained of a restricted range of movement, and that “whenever he tries to
over do it, he gets increasing pain.” (821). Dhawan advised Plaintiff to continue
exercising and working on his range of movement. (822).
On September 12, 2014, Dhawan saw Plaintiff for a “routine visit” and noted that
Plaintiff claimed to be “doing well,” with “discomfort in his lower back but no
radiculopathy.” (823). Dhawan observed that Plaintiff was “walking well.” (823). Upon
examination Plaintiff had decreased range of movement but normal strength and
negative straight-leg raising. (823). Dhawan opined that Plaintiff remained “100%”
temporarily disabled. (824).
On October 24, 2014, Dhawan reported that Plaintiff “just has some back pain
and he also gets spasms but by and large he is doing well.” (825).
On December 5, 2014, Dhawan stated: “The patient is doing well. His numbness
and tingling have resolved. He does not complain of any pain in his legs. He gait is
definitely improved but the patient has discomfort in his lower back.” (827). Dhawan
stated that Plaintiff’s range of movement was “decreased” but “pain free.” (827).
On February 27, 2015, Dhawan reported that Plaintiff was complaining of
increasing pain after falling on ice and landing on his back. (32). X-rays showed no
fracture or damage to the prior surgical fusion sites. (32). Dhawan stated that Plaintiff
“has been using a cane for the last 2-3 weeks.” (32). (This is the only mention of cane
in Dhawan’s reports after the December 14, 2012, office visit note.(360)). Dhawan
recommended that Plaintiff take pain medication and use heat on his back.
On April 3, 2015, Dhawan reported that Plaintiff was “doing well,” and that his
“pain is well under control.” (30). Dhawan noted that the x-rays showed that the 2012
10

surgery had achieved an “excellent fusion.” (30). Dhawan stated that Plaintiff was “not
currently working.” (30). Dhawan stated: “He has a slightly antalgic gait but he is
walking well.” (30).
On April 28, 2015, Dhawan signed a residual functional capacity form for Plaintiff
relating to “disorders of the spine.” (38-42). However, Dhawan left the vast majority of
the form blank. Dhawan stated that Plaintiff had degenerative disc disease and low
back pain, and that the prognosis was “good.” (38). Dhawan stated: “Patient is healing
well – no radiculopathy but has slight antalgic gait.” (38). Dhawan did not complete any
of the sections dealing with Plaintiff’s ability to perform specific activities such as lifting,
carrying, standing or sitting, and did not expressly indicate whether or not Plaintiff was
able to work.
PROCEDURAL BACKGROUND
Plaintiff applied for disability benefits, claiming to have become disabled on
April 17, 2012. After the Commissioner denied the claim initially, on August 13, 2014,
a hearing was conducted before an Administrative Law Judge (“ALJ”). At the hearing,
Plaintiff testified to, inter alia, the following: He stopped working because he could not
perform the heavy lifting required by his janitorial job (63); he has not tried to find other
work since he stopped working in March-April 2012 (63, 64); due to back pain he is
unable to perform activities such as walking to the store, “do[ing] stuff around the
house,” and enjoying hobbies (64); he experiences no side effects from the
medications that he takes (70); his doctors never recommended physical therapy after
his surgery in 2012 (70); when his pain flares up it radiates across his lower back and
into both legs (71); posturally there is no position that is comfortable for him, which
11

requires him to constantly change position (71); neither pain medications nor heat are
particularly effective at relieving his pain (72); he experienced no improvement in
symptoms following the 2012 surgery, but rather, his condition “stayed the same” (72);
he is unable to perform household chores (73, 82-83); he does not do anything during
the day to “occupy his time” except “sit outside”3 (74); he experiences pain from walking
a city block, and is able to stand for “about, maybe, 15 minutes” (78); an unspecified
doctor told him not to lift more than five pounds following his surgery in 2012 (78); he
uses a cane “every day,” to stand and walk (80-81, 86); it is painful for him to carry a
half gallon of milk a short distance (81); and he has pain and weakness in his legs (84).
A vocational expert (“VE”) also testified at the hearing in response to various
hypothetical questions posed by the ALJ and Plaintiff’s counsel. The VE stated that a
hypothetical claimant with the residual functional capacity (“RFC”) proposed by the ALJ
(described further below) would not be able to perform Plaintiff’s past relevant work, but
would be able to perform various jobs categorized as light work. In response to the
ALJ’s questioning, the VE further indicated that a hypothetical claimant who needed an
“hand-held assistive device . . . for standing and ambulating” would not be able to
perform light work, and would be restricted to sedentary work. (90).
At the close of the hearing Plaintiff’s counsel argued, inter alia, that Plaintiff is
limited to sedentary work at most, and that given Plaintiff’s age, education and work
experience, the Grids would direct a finding of disability. (93-94).
On February 4, 2015, the ALJ issued his Decision, finding that Plaintiff was not

3
Plaintiff gave this answer in response to being asked whether he watches television, reads books
or has other hobbies. (74).

12

disabled at any time between the alleged date of onset (April 17, 2012) and the date of
his decision. Applying the familiar five-step sequential analysis used to evaluate social
security disability claims, the ALJ found, at step one, that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date. (15). At step two, the ALJ
found that Plaintiff had a single severe impairment: “degenerative disc disease-lumbar
status post fusion.” (15). The ALJ further found that Plaintiff had non-severe
impairments, including hepatitis C, cirrhosis of the liver, a history of polysubstance
abuse, depression and anxiety. (15-16). At step three, the ALJ found that Plaintiff’s
impairments did not meet-or-medically-equal a listed impairment. (17).
Before reaching step four of the sequential analysis, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”)
to perform light work as defined in 20 CFR 404.1567(b) except [that he] is
prohibited from climbing ladders, ramps, and scaffolds. Further, the
claimant would need to avoid slippery and uneven surfaces, hazardous
machinery, and unprotected heights. Finally, the claimant is limited to
occasional climbing of ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling.
(17).
In explaining that determination, the ALJ reviewed the medical evidence,
including Dhawan’s notes, Toor’s report and various diagnostic test results. (17-19).
The ALJ also reviewed Plaintiff’s subjective allegations concerning his abilities,
including his claim that he needed a cane to ambulate. (17-18). The ALJ stated that he
gave “some weight” to Dhawan’s opinion, rendered in January 2012 (following Plaintiff’s
first surgery), that Plaintiff “could return to work without restrictions despite the

13

diagnosis of lumbar spinal stenosis.” (19). The ALJ stated that he gave only “little
weight” to Toor’s opinion, because it was a one-time examination, and because the
findings were “not fully consistent with the totality of the medical records,” “especially
the x-rays that reflected normal findings.” (19). These “x-rays” cited by the ALJ were
Ex. 1F at pp. 14 (x-ray taken on October 7, 2011)4 & 35 (CT scan taken on June 5,
2012)5, and Ex. 7F at p. 11 (x-rays taken after the 2012 surgery, showing “good
fusion.”)6. The ALJ found that Plaintiff’s subjective allegations were “not entirely
credible” and “not consistent.” (18).
At step four of the sequential analysis, the ALJ found that Plaintiff is not capable
of performing his past relevant work as a janitor. (19-20). However, the ALJ found at
step five that Plaintiff could perform light jobs identified by the VE, namely, small parts
assembler, inspector/hand packager, and assembly-machine tender. (20).
Consequently, the ALJ found that Plaintiff is not disabled.
Plaintiff appealed to the Appeals Council, and submitted additional medical
records consisting of notes from Drs. Dhawan and Curtin. (2, 5). However, the Appeals
Council declined to review the ALJ’s determination. (1).
On August 11, 2016, Plaintiff commenced this action. On April 14, 2017, Plaintiff
filed the subject motion [#12] for judgment on the pleadings, and on July 20, 2017,
Defendant filed the subject cross-motion [#16] for judgment on the pleadings. On
November 30, 2017, counsel for the parties appeared for oral argument, with
4

Referred to in Dhawan’s notes, Record at p. 265

5

Record at p. 285.

6

Referred to in Dhawan’s notes, Record at p. 627.

14

Defendant’s counsel appearing by telephone with the Court’s permission.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Substantial evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
DISCUSSION
Plaintiff contends that this action must be remanded for two reasons. First,
Plaintiff alleges that the ALJ erred when making his RFC determination (that Plaintiff
could perform less than a full range of light work), because he did not “evaluate
Plaintiff’s need for a cane.”7 According to Plaintiff, the ALJ “completely ignored” the
issue of “whether or not Plaintiff need[s] a cane.”8 Plaintiff contends that this is a
“crucial” issue, because if he must use a cane to stand and walk, as he claims, then he
is restricted to sedentary work at most, and would therefore be found disabled under
the grids, due to his age, education and work experience.
Second, Plaintiff contends that the ALJ erred in making his RFC determination,

7

Pl. Memo of Law [#12-1] at p. 8.

8

Pl. Memo of Law [#12-1] at p. 9.

15

because it is “unsupported by any medical opinion.”9 More specifically, Plaintiff
contends that the ALJ erred by giving “some weight” to an “outdated opinion” by Dr.
Dhawan, and by giving only “little weight” to Toor’s opinion, “le[aving] the ALJ with no
more than his lay opinion to interpret the functional effect of Plaintiff’s lumbar spinal
impairments status post two surgeries.”10 Plaintiff further contends that the ALJ’s
attempt to draw conclusions about his functional abilities from raw x-ray results “is
suspect” and erroneous.11
Defendant responds that the ALJ’s decision applied the correct legal standards
and is supported by substantial evidence. For example, Defendant maintains that the
ALJ properly considered whether Plaintiff needed to use a cane, and determined that
he did not.12 Defendant further contends that the RFC determination is supported by
medical evidence, considering the record as a whole, “including treatment notes from
Dr. Dhawan and Dr. Curtin,” and “Plaintiff’s self-reported activities of daily living.” 13
As the Court observed during oral argument, this might have been an easier
case for the ALJ to resolve if Dr. Dhawan had completed the RFC evaluation that he
was provided in April 2015. Why Dhawan elected not to do so is unclear. However, the
most-likely explanation may be that he intended the limited information that he included

9

Pl. Memo of Law [#12-1] at p. 11.

10

Pl. Memo of Law [#12-1] at p. 11 (citing Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) for
the proposition that “[w]hile an ALJ may pick and choose between various medical opinions, she [sic] may
not substitute her [sic] own medical judgment for that of a medical expert.”).
11

Pl. Memo of Law [#12-1] at p. 13.

12

Def. Memo of Law [#16-1] at pp. 13-15.

13

Def. Memo of Law [#16-1] at pp. 16-17.

16

in the report to convey that Plaintiff is not disabled. Indeed, the only residual problem
that Dhawan identified was Plaintiff’s “slight antalgic gait.” (38). Certainly, the report
does not indicate that Plaintiff is disabled.
Dhawan’s office notes similarly never explicitly discuss Plaintiff’s residual
functional capacity for work following the 2012 surgery. At most, the notes indicate that
Plaintiff remained 100% temporarily disabled, though that could easily mean only that
Plaintiff was not able to return to his usual job as a janitor, which required heavy lifting.
In that regard, Dhawan repeatedly noted that Plaintiff was not “currently working,” as
opposed to stating that Plaintiff was unable to ever work again.
However, while Dhawan’s notes never expressly indicate whether Plaintiff can
perform light work, they could support such a finding. In that regard, after Plaintiff’s first
successful surgery in 2011, Dhawan cleared Plaintiff to return to work without
restrictions, even though he knew that Plaintiff’s work involved lifting up to 100 pounds.
Although Plaintiff subsequently over-exerted himself, necessitating the second surgery
in 2012, Dhawan opined that the second surgery was a great success, and he
documented Plaintiff’s steady improvement during the months and years that
followed.14 Indeed, Dhawan’s notes suggest that following the period of recovery after
the second surgery, Plaintiff’s only remaining problems were some restriction in range
of movement, some lingering discomfort in the low back (which was controlled with
medication), and a need for further physical conditioning. In other words, it appears

14

The only exception to this is the termporary setback that Plaintiff experienced after he fell on ice
in 2015. Consequently, Plaintiff’s insistence that his condition never improved after the second surgery
(72) seems entirely inconsistent with Dhawan’s recorded observations.

17

from Dhawan’s notes that Plaintiff came within reach of his baseline following his first
successful surgery.15 Consequently, although Plaintiff continued to complain of
lingering discomfort and dull pain in his back following the second surgery, and while
Dhawan continued to opine that Plaintiff was temporarily disabled from performing his
heavy janitorial job, it seems likely that Plaintiff nevertheless regained the ability to
perform less-taxing work. Furthermore, Plaintiff’s statements to Dr. Stewart indicate
that after the second surgery he remained capable of performing extensive activities of
daily living. (471).
Nevertheless, the Court agrees with Plaintiff that the ALJ’s RFC determination is
erroneous insofar as it appears to be unsupported by medical evidence. To begin with,
the Court agrees with Plaintiff that the ALJ erred by choosing to rely upon an outdated
opinion from Dr. Dhawan. As Defendant admits, Dhawan’s opinion in January 2012
that Plaintiff could return to work without restrictions “was given prior to Plaintiff’s
alleged onset date,”16 and as such, it has little relevance to the ALJ’s determination in
this particular case. Consequently, the ALJ’s decision to place emphasis on this report
(19), without an accompanying acknowledgment that Plaintiff’s condition subsequently
deteriorated to the point that he needed additional surgery, suggests error.
In this same vein, the Court agrees with Plaintiff that the ALJ erred in choosing to
rely upon “x-rays that reflected normal findings” when assessing Plaintiff’s credibility

15

Moreover, as discused above the results of Curtin’s complete physical examination in November
2012 were essentially normal. (479-480).
16

Def. Memo of Law [#16-1] at pp. 17-18.

18

and Toor’s report.17 In this regard, not only did the ALJ err in attempting to rely upon his
own layman’s interpretation of the radiological findings, but he reached the wrong
conclusion. At least, he reached a conclusion that was opposite of that reached by Dr.
Dhawan, who is a spinal surgeon. In particular, while the ALJ asserted that the
radiological reports (x-ray, CT scan) “reflected normal findings” (19), Dhawan
interpreted some of these same reports, in conjunction with Plaintiff’s continued
complaints of pain, as indicating that Plaintiff required additional spinal-fusion surgery.18
In sum, the ALJ does not explain why, if the reports showed normal findings, Dhawan
cited them when documenting why surgery was necessary.19 Accordingly, the Court
concludes that insofar as the ALJ relied upon his own interpretation of the radiological
reports to evaluate Toor’s report and to assess Plaintiff’s credibility, he committed error
that requires a remand.
Regarding Plaintiff’s argument that the ALJ failed to consider whether he needed
a cane to ambulate, a court could properly find both that the ALJ’s decision implicitly
found that Plaintiff does not need a cane to ambulate, and that there is substantial
17

As discussed above, there were other reasons why he could have done so. Most notably,
Plaintiff’s presentation at the consultation with Toor was entirely inconsistent with his presentation during
multiple office visits with Dhawan (and Curtin) at around the same time.
18

The “x-rays” cited by the ALJ were Ex. 1F at pp. 14 (x-ray taken on October 7, 2011) & 35 (CT
scan taken on June 5, 2012), and Ex. 7F at p. 11 (x-rays taken after the 2012 surgery, showing “good
fusion.”). The first of these was taken prior to the alleged onset of disability and has little relevance to the
issue of disability. The third report was obtained after the second surgery, and showed that Plaintiff’s
spine had been successfully fused, but did not address his ongoing level of disability, if any. The second
report, which was an MRI report referred to at page (296) of the record, purportedly showed “mild stenosis
at L2-L3,” which Dhawan later surgically corrected. To be fair to the ALJ, the Court itself was somewhat
confused when Dhawan initially indicated that the June 5, 2012, CT scan showed “mild stenosis at L2-L3”
(296), but later opined that the radiologic evidence showed “marked degenerative changes.” (301).
Nevertheless, it does not appear that the ALJ accurately interpreted the subject reports.
19

The Worker’s Compensation doctors apparently agreed with Dr. Dhawan’s interpretation of the

reports.

19

evidence in the record to support such a finding. Nevertheless, and inasmuch as the
case is being remanded anyway, this Court agrees with Plaintiff that the ALJ’s decision
in this case is unnecessarily vague on this point, particularly in light of the unique facts
of this case and the ALJ’s clear awareness of the importance of this potentiallydispositive issue. (89). Accordingly, upon remand the Commissioner should clarify this
issue.
CONCLUSION
Plaintiff’s application for judgment on the pleadings [#12] is granted, and
defendant’s cross-motion [#16] is denied. The matter is remanded to the
Commissioner for further administrative proceedings.
So Ordered.
Dated: Rochester, New York
December 1, 2017

ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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