Austin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------x

JEROME FORD AUSTIN, JR.,

Plaintiff,

MEMORANDUM & ORDER

- against - 18-CV-331 (PKC)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

-------------------------------------------------------x

PAMELA K. CHEN, United States District Judge:

Plaintiff Jerome Ford Austin Jr., proceeding pro se, commenced this action under 42 U.S.C.

§ 405(g), seeking judicial review of the decision of the Commissioner of the Social Security

Administration (“SSA”) denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”).

Before the Court are the parties’ cross-motions for judgment on the pleadings.1 (Dkts. 10, 12.)

For the following reasons, the Court grants Plaintiff’s cross-motion for judgment on the pleadings

and denies the Commissioner’s motion. This case is remanded for further proceedings consistent

with this Memorandum & Order.

1 “It is well established that the submissions of a pro se litigant must be construed liberally

and interpreted to ‘raise the strongest arguments that they suggest.’” Dowsett v. Comm’r of Soc.

Sec., No. 07-CV-2018 (SLT) (SMG), 2017 WL 2799852, at *1 (E.D.N.Y. June 26, 2017) (quoting

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). Therefore, the Court

construes Plaintiff’s Response in Opposition to the Commissioner’s Motion (Dkt. 12) as a Cross-

Motion for Judgment on the Pleadings, given that Plaintiff “ask[s] the Court to deny the

[Commissioner’s] motion for judgment on the pleadings, and to award [Plaintiff] disability

benefits” or “[a]lternatively, . . . remand my case to the [Administrative Law Judge] for further

development of the record.” (Plaintiff’s Response in Opposition (“Pl.’s Br.”), Dkt. 12, at 1.)

BACKGROUND

I. Non-Medical Evidence

Plaintiff was born on November 2, 1982. (Administrative Transcript, (“Tr.”), Dkt. 9, at

ECF2 282.) He completed his GED in 2000. (Id. at ECF 334.) He completed one year of college

subsequent to receiving his secondary school diploma. (Id. at ECF 113–14.) He was gainfully

employed from 2000 to 2011, working as a restaurant cashier from 2000 to 2001 and 2002 to 2003,

as a supermarket clerk from 2001 to 2002, as a security officer from 2003 to 2006, and as a police

officer for a hospital from 2006 to 2011. (Id. at ECF 293–99, 322.) On July 13, 2011, Plaintiff

was involved in a motor vehicle accident. (Id. at ECF 438.) Plaintiff was in a second motorcycle

accident in August 2014. (Id. at ECF 24, 524.)

II. Medical Evidence

Dr. Becker3 served as Plaintiff’s primary care physician starting in October 2007.4 (Id. at

ECF 515.) Under Dr. Becker’s care, Plaintiff underwent a neurological examination on July 1,

2014, shortly before his second motorcycle accident. (Id. at ECF 25, 402, 507.) A nerve

2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

3 The record is inconsistent as to whether Plaintiff’s doctor was Dr. Gary Becker or Dr.

Marvin Becker. (Compare Tr. at ECF 34 (list of exhibits for hearing noting that the August 2014

Multiple Impairment Questionnaire and July 2014 to December 2016 office treatment records were

for Dr. Marvin Becker), and id. at ECF 24 (noting that Plaintiff underwent EMG testing with Dr.

Marvin Becker), with id. at ECF 515 (listing Gary Becker, MD at the top of the Multiple

Impairment Questionnaire).) Plaintiff states that “Dr. Becker was my primary care physician and

I saw him and his father, Dr. Marvin Becker, during this time frame for many things, including my

recurring MS symptoms of impaired depth perception and eye pain.” (Pl’s Br., Dkt. 12, at 2.)

4 At the hearing, Plaintiff testified that he has started seeing a new doctor, Dr. Wertzberger.

(Tr. at ECF 45.) Plaintiff noted that he believed his first appointment with Dr. Wertzberger was

on July 19, 2017. (Id.)

conduction study revealed mild bilateral carpal tunnel syndrome, right hand ulnar neuropathy,

problems in right foot tibial and lateral plantar nerves, problems in the left foot peroneal, tibial,

and lateral plantar nerves, and lumbar radiculopathy5 at tibial roots. (Id. at ECF 507.) Dr. Bajaj,

in a report dated July 21, 2014, noted that Plaintiff had been diagnosed with multiple sclerosis

(“MS”), that the diagnosis was confirmed by an MRI, that Plaintiff had lost vision in his left eye,

experiences headaches, and had his last optic neuritis6 attack in 2007. (Id. at ECF 508.)

On August 12, 2014, Dr. Becker completed a Multiple Impairment Questionnaire of

Plaintiff. (Id. at ECF 25, 403, 515–21.) Dr. Becker indicated that his diagnosis was “multiple

sclerosis” and “optic neuritis” and that Plaintiff’s prognosis included loss of vision in one eye,

fatigue, and headaches. (Id. at ECF 515.) He noted that he was relying on an MRI of Plaintiff’s

brain to support his diagnosis. (Id. at ECF 516.) Dr. Becker also noted that Plaintiff suffered from

daily pain to the “frontal head” precipitated by temperature change and light. (Id. at ECF 516–

17.) Dr. Becker determined that he had not been able to completely relieve Plaintiff’s pain “with

medication [and] without unacceptable side effects.” (Id. at ECF 517.)

Dr. Becker concluded that it would not be medically advisable for Plaintiff to sit or

stand/walk continuously in a work environment. (Id. at ECF 517–18.) Dr. Becker opined that

Plaintiff should stand/walk or sit for no more than one hour during the course of an eight-hour

workday. (Id. at ECF 517.) Dr. Becker further indicated that Plaintiff’s symptoms would likely

increase if he were to be placed in a competitive work environment, and that his symptoms

5 “Lumbar radiculopathy is a nerve irritation caused by damage to the discs between the

vertebrae.” Jefferson v. Astrue, No. 06-CV-1729 (MRK) (WIG), 2008 WL 918473, at *2 n.4 (D.

Conn. Mar. 11, 2008) (quotations omitted).

6 “Optic neuritis is inflammation of the optic nerve.” Bozzuto v. Colvin, No. 16-CV-964

(DFM), 2018 WL 4300022, at *3 n.9 (D. Conn. Sept. 10, 2018) (citing Dorland’s Illustrated

Medical Dictionary 1282 (31st ed. 2007)).

interfered with his ability to hold his neck in a constant position, which precluded him from

working on a computer. (Id. at ECF 519.) Dr. Becker concluded that Plaintiff could not work at

a competitive job for a sustained basis, citing severe pain, fatigue, and emotional factors that would

require him to take frequent unscheduled breaks every half hour, to miss work more than three

times a month, and to avoid temperature extremes and humidity. (Id. at ECF 520–21.)

On August 24, 2014, Plaintiff was involved in his second motorcycle accident. (Id. at

ECF 24, 524.) He suffered from several injuries including an open left knee fracture and a

dislocated right knee. (Id. at ECF 524.) Plaintiff required surgery on both his right knee and left

ankle. (Id. at ECF 403.) After being discharged from the hospital, on September 8, 2014, Plaintiff

was admitted to the Dr. Susan Smith-McKinney Nursing and Rehabilitation Center to undergo

intensive physical therapy. (Id. at ECF 554–65.) Plaintiff’s initial evaluation noted that he had a

fractured fibula, an L2-L4 transverse process fracture, a proximal fracture, asthma, multiple

sclerosis, and adequate vision. (Id. at ECF 554.) The evaluation also stated that Plaintiff was at

high risk for falls and other accidents, and had highly circumscribed mobility (needing a

wheelchair, partial bed assistance, and constant assistance dressing). (Id.) The evaluation

described Plaintiff as being completely unable to walk. (Id.)

On October 16, 2014, Plaintiff was discharged from the Dr. Susan Smith-McKinney

Nursing and Rehabilitation Center. (Id. at ECF 697.) According to the record, the reason cited

for the discharge was that “goals [were] met.” (Id.) Plaintiff’s mobility was rated at least one

percent but less than 20 percent impaired, with modified independence in turning and scooting in

bed and capable of ambulation over even terrain with crutches for 150 feet. (Id. at ECF 698–99.)

It also described Plaintiff as capable of climbing nine steps on a staircase without the aid of

crutches, of dressing his lower body with difficulty, and of performing simple home chores with

minimal assistance. (Id. at ECF 699, 743–45.) The summary concluded that Plaintiff would still

suffer from significant fatigue, with moderate to maximal exertion difficult to recover from. (Id.

at ECF 740.)

On October 31, 2014, Plaintiff received an initial evaluation at New “U” Physical Therapy.

(Id. at ECF 841.) Plaintiff demonstrated “decreased [range of motion], decreased [m]uscle

strength, decreased [m]obility, limited functions such as walking more than [two] blocks, difficulty

with transfers, inability to negotiate more than [five] steps . . . [and] difficulty getting dressed.”

(Id.) Plaintiff’s pain was sharp, an eight out of ten at rest, and a nine out of ten with activity. (Id.)

Additionally, the medial meniscus on both of Plaintiff’s knees was tender to palpation. (Id.)

On February 5, 2015, Plaintiff underwent a consultative examination conducted by Dr.

Lamberto Flores, who specializes in internal medicine. (Id. at ECF 4, 26, 403, 796–98.) He

acknowledged Plaintiff’s history with multiple sclerosis, his left ankle fracture, and his right knee

dislocation. (Id. at ECF 796.) Dr. Flores noted Plaintiff’s claim that he could not tolerate walking

five to ten steps without left ankle pain or lift five to ten pounds. (Id. at ECF 797.) Dr. Flores also

noted Plaintiff’s claim that he could tolerate sitting with an elevated leg without pain, prolonged

standing for five minutes with knee and ankle pain, and climbing stairs with left ankle pain. (Id.)

On examination, Dr. Flores described Plaintiff’s gait as limping and stated that Plaintiff needed a

cane for support, though Dr. Flores found no evidence of swelling or impaired extension. (Id. at

ECF 798.) Dr. Flores noted that Plaintiff had difficulty doing tandem, toe, and heel walking

exercises even with his cane. (Id.) Based on the physical examination, Dr. Flores concluded that

Plaintiff was limited in prolonged walking, sitting, standing, climbing stairs, and heavy lifting.

(Id.)

On March 3, 2016, Plaintiff underwent a consultative examination conducted by Dr.

Mahendra Misra, a board-certified orthopedist. (Id. at ECF 26, 404, 802–12.) In a medical source

statement produced subsequent to the examination, Dr. Misra noted that Plaintiff experienced pain

and swelling in his right knee joint, making walking difficult. (Id. at ECF 802.) Additionally,

Dr. Misra noted that Plaintiff experienced pain and swelling in his left ankle joint, which made

walking and standing difficult. (Id.) However, Dr. Misra noted that Plaintiff’s left knee was

unremarkable. (See id. at ECF 803 (“Left Knee Joint: Status post surgery for a meniscus tear in

2011 but he does not have too many symptoms here.”).) Dr. Misra noted Plaintiff’s history of

multiple sclerosis, adding that he had gone “blind in the right eye.” (Id.) Dr. Misra diagnosed left

knee joint internal derangement, right knee internal derangement, left ankle derangement, multiple

sclerosis, and obesity. (Id. at ECF 804.) Dr. Misra noted that Plaintiff’s prognosis was

“[g]uarded.” (Id.) Dr. Misra recorded that when prompted, Plaintiff was unable to do heel

walking, toe walking, or any squatting, though he was able to walk heel-to-toe albeit with a “very

heavy limping gait.” (Id. at ECF 803.) She opined that Plaintiff could sit for 45 minutes and stand

for five minutes without interruption. (Id. at ECF 804.) Furthermore, Dr. Misra indicated that

Plaintiff could sit for 45 minutes and stand for five minutes in an eight-hour work day, and required

a cane to ambulate. (Id. at ECF 806.) Dr. Misra also concluded that Plaintiff could not walk a

block, use public transportation, climb a few steps, or travel without a companion. (Id. at ECF

810.) Finally, Dr. Misra opined that given Plaintiff’s injuries and weight, he could not be occupied

in any field that required activity, adding “perhaps a sedentary job at a desk might be suitable for

him.” (Id. at ECF 804.)

On November 18, 2016, Plaintiff underwent a neurological examination conducted by Dr.

Harold Tice. (Id. at ECF 25, 421, 1015–16.) As part of the examination, Plaintiff had an MRI

which revealed “multiple periventricular white matter and corpus callosum signal hyperintensities

compatible with demyelination7 in the setting and provided history of MS.” (Id. at ECF 1016.)

The study also revealed the presence of 19 new demyelinating plaques and two demyelinating

plaques which had decreased in size from Plaintiff’s last MRI on September 21, 2010. (Id.)

On March 8, 2016, Plaintiff met with orthopedist Dr. Roby Abraham at Brookdale Hospital

for a follow-up. (Id. at ECF 25, 942–43.) Dr. Abraham found that Plaintiff’s wounds had healed

but that his range of motion was 20 to 90 degrees “due to stiffness and pain.” (Id. at ECF 942.)

Dr. Abraham recommended constant physical therapy and leg elevation. (Id. at ECF 943.)

On May 24, 2016, Plaintiff received his last physical therapy session on record. (Id. at

ECF 817.) He demonstrated decreased range of motion, decreased muscle strength, and decreased

mobility. (Id.) Walking more than five blocks, walking up more than twelve steps, and getting

dressed continued to pose a problem for Plaintiff. (Id.) Plaintiff also reported feeling sharp pain,

rating a four out of ten, at rest, and five out of ten when active. (Id.)

On July 7, 2017, Plaintiff was examined by Dr. Paul Kubiak, a board-certified orthopedist

at the Brooklyn Island Musculoskeletal Care. (Id. at ECF 422, 1085–86.) Dr. Kubiak noted

Plaintiff’s right knee pain and left ankle pain. (Id. at ECF 1086.) Plaintiff’s x-rays showed that

there were degenerative changes on Plaintiff’s right knee with joint space irregularity and

osteophytes.8 (Id. at ECF 1085–86.) Dr. Kubiak opined that the limited motion in the right knee

was likely a result of “heterotopic ossification” and unlikely to be remedied by further surgery.

7 “Demyelination refers to the loss or destruction of the protective covering (myelin sheath)

that surrounds nerve fibers in the brain, optic nerves and spinal cord.” Valentin v. Berryhill, No.

17-CV-944 (DFM), 2018 WL 4300119, at *4 n.10 (D. Conn. Sept. 9, 2018) (citing Dorland’s

Illustrated Medical Dictionary 493 (31st ed. 2007)).

8 “Osteophytes are bony formations.” Mesimeris v. United States, No. 03-CV-0925 (JS),

2006 WL 148911, at *2 n.2 (E.D.N.Y. Jan. 17, 2006).

(Id. at ECF 1086.) He also concluded that further surgeries would be unlikely to result in pain

relief for Plaintiff. (Id.)

III. Procedural History

On September 29, 2014, Plaintiff filed an application with the SSA for DIB, in which he

alleged he had been disabled as of September 13, 2014. (Id. at ECF 19.) His application was

denied. (Id.) After requesting a hearing (id.), Plaintiff appeared before Administrative Law Judge

David Suna (“the ALJ”) on September 19, 2016 and July 24, 2017 (id.). In a decision dated

August 10, 2017, the ALJ determined that Plaintiff was not disabled and was therefore not entitled

to DIB. (Id. at ECF 19–29.) Specifically, the ALJ found that Plaintiff was capable of sedentary

work with several limitations and exceptions. (Id. at ECF 22.) On November 16, 2017, the ALJ’s

decision became final when the Appeals Council of the SSA’s Office of Disability Adjudication

and Review denied Plaintiff’s request for review of the ALJ’s decision. (Id. at ECF 5–10.)

Thereafter, Plaintiff timely9 filed the instant action.

9 Title 42, United States Code, Section 405(g) provides that

[a]ny individual, after any final decision of the Commissioner of Social Security

made after a hearing to which he was a party . . . may obtain a review of such

decision by a civil action commenced within sixty days after the mailing to him of

notice of such decision or within such further time as the Commissioner of Social

Security may allow.

“Under the applicable regulations, the mailing of the final decision is presumed received five days

after it is dated unless the claimant makes a reasonable showing to the contrary.” Kesoglides v.

Comm’r of Soc. Sec., No. 13-CV-4724 (PKC), 2015 WL 1439862, at *3 (E.D.N.Y. Mar. 27, 2015)

(citing 20 C.F.R. §§ 404.981, 422.210(c)). Applying this standard, the Court determines that

Plaintiff received the Commissioner’s final decision on November 21, 2017. Plaintiff filed the

instant action on January 12, 2018—53 days later. (See generally Complaint, Dkt. 1.)

IV. The ALJ decision

In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant

bears the burden of proof in the first four steps of the inquiry; the Commissioner bears the burden

in the final step. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). First, the ALJ determines

whether the claimant is currently engaged in “substantial gainful activity.” 20 C.F.R.

§ 404.1520(a)(4)(i). If the answer is yes, the claimant is not disabled. If the answer is no, the ALJ

proceeds to the second step to determine whether the claimant suffers from a “severe impairment.”

20 C.F.R. § 404.1520(a)(4)(ii). An impairment is severe when it “significantly limits [the

claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If

the impairment is not severe, then the claimant is not disabled. In this case, the ALJ found that

Plaintiff had not engaged in substantial gainful activity since September 13, 2014 and that Plaintiff

suffered from the following severe impairments: “multiple sclerosis (‘MS’), optic neuritis, status-

post motor vehicle accident causing left ankle fracture and bilateral knee dislocation, carpal tunnel

syndrome, lumbar L2-L4 transverse process fracture[,] [] lumbar radiculopathy, and obesity.” (Tr.

at ECF 21.)

Having determined that Plaintiff satisfied his burden at the first two steps, the ALJ

proceeded to the third step, at which the ALJ considers whether any of the claimant’s impairments

meet or equal one of the impairments listed in the Social Security Act’s regulations (the

“Listings”). 20 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. In this

case, the ALJ concluded that none of Plaintiff’s impairments met or medically equaled the severity

of any of the impairments in the Listings. (Tr. at ECF 22.) Moving on to the fourth step, the ALJ

found that Plaintiff had the residual functional capacity (“RFC”)10 to perform “sedentary work” as

defined in 20 C.F.R. § 404.1567(a).11 (Id. at ECF 22–27.) Qualifying his RFC determination, the

ALJ noted that Plaintiff

can lift and carry 10 pounds occasionally, and less than 10 pounds frequently, and

sit for six hours, and stand and walk two hours, in an eight-hour workday. The

[Plaintiff] can push and pull occasionally, and can operate foot controls with the

lower extremities occasionally. Additionally, the [Plaintiff] can frequently handle

items, finger, feel, and reach in all directions with the dominant upper extremity;

can never climb ramps, stairs, ladders, ropes, or scaffolds; can balance and stop

occasionally; he is unable to kneel, crouch, or crawl. The [Plaintiff] is limited to

performing occupations requiring no more than frequent depth perception; can

never work from unprotected heights or with moving mechanical parts; he can

occasionally operate a motor vehicle; he can tolerate up to loud noise. The

[Plaintiff] requires a handheld assistive device at all times while walking, and

requires a sit-stand option at will; the [Plaintiff] will be off-task 5% of the time in

an eight-hour workday in addition to normal breaks.

(Id. at ECF 22.)

Relying on his RFC finding from step four, the ALJ determined that Plaintiff was unable

to perform any of his past relevant work as a police guard. (Id. at ECF 27.) The ALJ then

proceeded to step five. At step five, the ALJ must determine whether the claimant—given his

RFC, age, education, and work experience—has the capacity to perform other substantial gainful

work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). In this case, the ALJ determined

10 To determine the claimant’s RFC, the ALJ must consider the claimant’s “impairment(s),

and any related symptoms . . . [which] may cause physical and mental limitations that affect what

[the claimant] can do in the work setting.” 20 C.F.R. § 404.1545(a)(1).

11 According to the applicable regulations,

Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and

small tools. Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in

carrying out job duties. Jobs are sedentary if walking and standing are

required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a).

that there were jobs that existed in significant numbers in the national economy that Plaintiff was

capable of performing, namely: (1) document preparer, which has an availability of 64,740 jobs;

(2) call out operator, which has an availability of 46,320 jobs; and (3) food and beverage order

clerk, which has an availability of 190,390 jobs. (Tr. at ECF 27–28.)

STANDARD OF REVIEW

Unsuccessful claimants for disability benefits under the Social Security Act may bring an

action in federal district court seeking judicial review of the Commissioner’s denial of their

benefits. 42 U.S.C. § 405(g). In reviewing a final decision of the Commissioner, the Court’s role

is “limited to determining whether the SSA’s conclusions were supported by substantial evidence

in the record and were based on a correct legal standard.” Talavera, 697 F.3d at 151 (quotation

omitted). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d

409, 417 (2d Cir. 2013) (quotations and brackets omitted). In determining whether the

Commissioner’s findings were based upon substantial evidence, “the reviewing court is required

to examine the entire record, including contradictory evidence and evidence from which

conflicting inferences can be drawn.” Id. (quotation omitted). However, the Court “defer[s] to the

Commissioner’s resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118,

122 (2d Cir. 2012). If there is substantial evidence in the record to support the Commissioner’s

findings as to any fact, those findings are conclusive and must be upheld. 42 U.S.C. § 405(g).

DISCUSSION

Plaintiff argues that the ALJ erred by (1) giving improper weight to the various medical

opinions in the record (Pl.’s Br., Dkt. 12, at 2–4), (2) mis-categorizing several aspects of Plaintiff’s

testimony from the hearing (id. at 2, 4–6), and (3) failing to account for Plaintiff’s location to

determine how many jobs in the national economy are available to him (id. at 6). The Court finds

that remand is warranted based on Plaintiff’s first argument because the ALJ failed to sufficiently

develop the record to support his conclusions as to the medical opinions on which he relied. Since

the Court grants remand on this ground, it does not address Plaintiff’s other arguments.

I. Treating Physician Opinion

“With respect to the nature and severity of a claimant’s impairments, the SSA recognizes

a treating physician rule of deference to the views of the physician who has engaged in the primary

treatment of the claimant.”12 Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quotations,

brackets, and citations omitted). As the Second Circuit has explained:

An ALJ who refuses to accord controlling weight to the medical opinion of a

treating physician must consider various factors to determine how much weight to

give to the opinion. Among those factors are: (i) the frequency of examination and

the length, nature and extent of the treatment relationship; (ii) the evidence in

support of the treating physician’s opinion; (iii) the consistency of the opinion with

the record as a whole; (iv) whether the opinion is from a specialist; and (v) other

factors brought to the [SSA’s] attention that tend to support or contradict the

opinion. The regulations also specify that the Commissioner will always give good

reasons in her notice of determination or decision for the weight she gives [the]

claimant’s treating source’s opinion.

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citations, quotations, and brackets omitted).

Here, the ALJ gave Dr. Becker’s assessment “only partial weight” because “[a]lthough Dr.

Becker serves as [Plaintiff’s] treating physician and is therefore familiar with the longitudinal

progression of his impairments, his opinion appears to place excessive reliance on [Plaintiff’s]

subjective allegations and is inconsistent with the medical record as a whole.” (Tr. at ECF 25.)

This is erroneous for two reasons. First, it appears that the ALJ declined to give Dr. Becker’s

12 Although “[t]he current version of the [Social Security Act]’s regulations eliminates the

treating physician rule,” the rule nevertheless applies to Plaintiff’s claim, which was initially filed

on September 29, 2014, as the current regulations only “apply to cases filed on or after March 27,

2017.” Burkard v. Comm’r of Soc. Sec., No. 17-CV-290 (EAW), 2018 WL 3630120, at *3 n.2

(W.D.N.Y. July 31, 2018); 20 C.F.R. § 404.1520(c).

assessment controlling weight, as required by the treating physician rule, because of Dr. Becker’s

“excessive reliance” on Plaintiff’s subjective allegations. This is error. See Green-Younger v.

Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (“The fact that [a treating physician] also relied on [a

plaintiff]’s subjective complaints hardly undermines his opinion as to [a plaintiff’s] functional

limitations, as a patient’s report of complaints, or history, is an essential diagnostic tool.”)

(quotations, alternations, and citation omitted); see also Mahon v. Colvin, No. 15-CV-398 (FPG),

2016 WL 3681466, at *4 (W.D.N.Y. July 6, 2016) (holding that “reliance on [a p]laintiff’s

subjective complaints is not a valid reason for rejecting [a consultative doctor]’s medical

opinion”).

Second, once the ALJ concluded that Dr. Becker’s medical opinion was “inconsistent with

the medical record as a whole” (Tr. at ECF 25), the ALJ was obligated to “seek clarification and

additional information from [Dr. Becker] to fill any clear gaps before dismissing the doctor’s

opinion.” Calzada v. Astrue, 753 F. Supp. 2d 250, 269 (S.D.N.Y. 2010) (quotations and brackets

omitted). This is especially true where, as here, the treating physician’s opinion was rendered

before a significant medical event, i.e., Plaintiff’s August 2014 accident which occurred after

Dr. Becker memorialized his medical opinions in the Multiple Impairment Questionnaire. Before

the ALJ can disregard a treating physician’s medical opinion, the ALJ must first ask the treating

physician to clarify the deficiencies the ALJ perceives in that opinion. See Braga v. Comm’r of

Soc. Sec., No. 18-CV-1345 (PKC), 2019 WL 4083047, at *6 (E.D.N.Y. Aug. 29, 2019).

Furthermore, while an ALJ is entitled to disregard the opinion of a claimant’s treating physician

after giving the physician the opportunity to correct the deficiencies in his or her medical reports,

the ALJ must make clear that this decision is based on conclusions made by other medical

professionals. See Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (“The ALJ is not permitted

to substitute his own expertise or view of the medical proof for the treating physician’s opinion or

for any competent medical opinion.”); Hillsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 347

(E.D.N.Y. 2010) (“Because an RFC determination is a medical determination, an ALJ who makes

an RFC determination in the absence of supporting expert medical opinion has improperly

substituted his own opinion for that of a physician, and has committed legal error.”).

The Court concludes that remand is therefore required to enable the ALJ to solicit the

necessary information from Dr. Becker to address the perceived deficiencies in his medical

reports.13 As courts in this Circuit have held, “the ALJ must make every reasonable effort to help

an applicant get medical reports from his medical sources” and “must seek additional evidence or

clarification when the report from the claimant’s medical source contains a conflict or ambiguity

that must be resolved, the report does not contain all the necessary information, or does not appear

to be based on medically acceptable clinical and laboratory diagnostic techniques.” Calzada, 753

F. Supp. 2d at 269 (quotations and brackets omitted); see also Wilson v. Colvin, 107 F. Supp. 3d

387, 407 (S.D.N.Y. 2015) (“Legal errors regarding the duty to develop the record warrant

remand.”) (collecting cases).

II. Consultative Opinions

The record before the ALJ also included the medical opinions of two consultative

examiners: Drs. Lamberto Flores, an internal medicine specialist, and Mahendra Misra, an

orthopedist. (Tr. at ECF 4, 801.) The ALJ gave “partial weight” to Dr. Misra’s March 2016

medical opinion that Plaintiff “is unable to lift even minimal weight, and is restricted to sitting and

standing less than one hour in an eight-hour workday,” finding that Dr. Misra’s opinion is

13 Additionally, given the inconsistencies in the record as to whether Plaintiff’s treating

physician was Dr. Marvin Becker or Dr. Gary Becker, as noted supra n.3, the ALJ should solicit

the necessary information to confirm who Plaintiff’s treating physician was.

“internally inconsistent” and that “the medical record as whole, which . . . indicates a trend

improvement in the claimant’s condition, does not adequately support his opinion.” (Tr. at

ECF 26.) However, the ALJ gave Dr. Flores’s February 2015 medical opinion “significant

weight” because, though noting that the opinion is “somewhat vague, it is supported by clinical

findings elicited in the course of a live examination and is generally consistent with the record as

a whole.” (Id.) In choosing to elevate Dr. Flores’s medical opinion over the opinions of Plaintiff’s

treating physician and Dr. Misra, the ALJ failed to adequately explain how Dr. Flores’s opinion

was “more consistent with the underlying medical evidence” than the opinions of Drs. Becker and

Misra. Suarez v. Colvin, 102 F. Supp. 3d 552, 577 (S.D.N.Y. 2015). Specifically, the ALJ both

(1) failed to fulfill his affirmative obligation to develop the record upon finding deficiencies in the

medical reports, and (2) failed to adequately explain why Dr. Flores’s opinion was more credible

than the opinions of Drs. Becker and Misra.

First, the ALJ, in describing the opinions of both Drs. Misra and Flores, identified

deficiencies in both. For example, in Dr. Misra’s report, the ALJ noted that his opinion was

“internally inconsistent” because “[d]espite stating that [Plaintiff] is unable to sit for even one hour

in an eight-hour day, he elsewhere stated that [Plaintiff] may be able to perform a sedentary desk

job.” (Tr. at ECF 26 (internal quotations omitted).) Likewise, though the ALJ afforded

Dr. Flores’s opinion “significant weight,” the ALJ also noted that the “opinion is somewhat

vague.” (Id.) In both instances, once the ALJ noted these deficiencies, he had the obligation to

develop the record. See Calzada, 753 F. Supp. 2d at 269.

Second, the ALJ gave greater weight to the opinion of Dr. Flores—a consultative

examiner—than the opinion of Plaintiff’s treating physician, Dr. Becker, or the more recent

consultative medical opinion of Dr. Misra without sufficiently explaining why Dr. Flores’s opinion

was more consistent with the record as whole. Dr. Flores examined Plaintiff in February 2015

(see Tr. at ECF 26; see also id. at ECF 296) and concluded that Plaintiff “on physical

examination[,] is limited in fully squatting, toe walking even with the cane . . . [and] is limited in

prolonged walking, sitting, standing, climbing stairs, and heavy lifting.” (Tr. at ECF 798.) The

ALJ noted that though Dr. Flores’s

opinion is somewhat vague, it is supported by the clinical findings elicited in the

course of a live examination and is generally consistent with the record as a whole,

which indicates that [Plaintiff]’s impairments have some impact [on] his ability to

perform the above[-]mentioned functions, but that he has seen improvement in his

condition following surgery and follow-up physical therapy.

(Tr. at ECF 26.) In contrast, the ALJ only gave partial weight to Drs. Becker’s and Misra’s

opinions—finding, in relevant part, that Plaintiff could not stand/walk or sit for more than one

hour during an eight-hour workday (id. at ECF 517–18), could only sit for 45 minutes and stand

for five minutes during an eight-hour workday (id. at ECF 804), and could not walk a block, use

public transportation, or travel without a companion (id. at ECF 810)—because they, inter alia,

were inconsistent with the record that showed this improvement, e.g., Plaintiff’s report that “he

ha[d] recently been working out [at] a gym.”14 (Tr. at ECF 25; see also id. at ECF 26.) Without

more elaboration, this analysis is insufficient. First, the ALJ relies heavily on the idea that “the

medical record as a whole . . . indicates a trend improvement in [Plaintiff]’s condition” in finding

that Dr. Flores’s opinion is more consistent with the record. (Tr. at ECF 26; see also id. at ECF

14 However, even this fact did not support the conclusion that Plaintiff’s condition was

improving. Plaintiff’s medical records indicated only that he was “working out in the gym” (see,

e.g., Tr. at ECF 942), and Plaintiff testified that he would go to the gym to “work[] out my upper

body, so that [he] could try to alleviate using [his] legs to help [him] stand up,” (id. at ECF 48).

Plaintiff further testified that in terms of working out his lower body, “the muscle wasn’t going to

allow [him] to do much. [He] couldn’t do leg—forward leg movements, lift weights or anything

like that. The only thing [he], pretty much, did was the therapeutic bike ride, which was, perhaps,

less than five or seven minutes.” (Id. at ECF 48–49.)

25 (noting the same in his analysis of Dr. Becker’s opinion); id. at ECF 26 (noting the same as to

Dr. Misra’s opinion).) However, Dr. Flores’s opinion, from February 2015, comes chronologically

between the opinions of Dr. Becker, from August 2014 and Dr. Misra, from March 2016, both of

which found significant limitations in Plaintiff’s ability to walk, sit, and stand.15 As a result, it

appears that Dr. Flores’s opinion, at most, indicated a brief interlude of improvement over a long

history of continued, severe impairment. If the medical record does not in fact support such a

conclusion as to Plaintiff’s overall lack of progress, the ALJ must provide more concrete and

substantive analysis to demonstrate why that is the case. Cf. Caternolo v. Astrue, No. 11-CV-6601

(MAT), 2013 WL 1819264, *9 (W.D.N.Y. Apr. 29, 2013) (“[I]t is a fundamental tenet of Social

Security law that an ALJ cannot pick and choose only parts of a medical opinion that support his

determination.”) (quotations omitted) (collecting cases).

Moreover, to the extent that the ALJ believed the record indicated a “trend improvement”

in Plaintiff’s condition—despite none of three medical opinions the ALJ relies on reaching such a

conclusion—the Court finds it odd that the ALJ did not consider the most recent medical records

from Dr. Kubiak who examined Plaintiff on July 7, 2017. Plaintiff was referred to Dr. Kubiak, an

orthopedist, by his primary care physician. (Tr. at ECF 42, 46.) Dr. Kubiak, after a physical

examination, found that “there is a high likelihood that [Plaintiff] will have chronic pain in relation

to [his] injuries” and that any surgery “is unlikely to provide a significant improvement in

[Plaintiff’s] knee range of motion at this stage post injury.” (Id. at ECF 1086.) Dr. Kubiak’s

conclusions that at least some of Plaintiff’s conditions are likely to be chronic belie the notion that

his medical record shows a “trend improvement.” (Cf. id. at ECF 974 (observing, in Plaintiff’s

15 Curiously, in describing the opinions of these three doctors, the ALJ, in his written

decision, went out of order chronologically, describing Dr. Flores’s opinion last. (See Tr. at

ECF 25–26.)

last physical therapy notes, that as of May 2016, Plaintiff “demonstrate[d] decreased [range of

motion], decreased [m]uscle Strength, decreased [m]obility” and that he would benefit from

protocols to “restore prior level of function”).)

The Court is, of course, required to defer the ALJ’s resolution of contradicting evidence.

Cage, 692 F.3d at 122 (noting that a court must “defer to the Commissioner’s resolution of

conflicting evidence”). But where, as here, the ALJ has failed to adequately consider and reconcile

contradictory evidence to support his conclusions, remand is appropriate. See Grosso v. Colvin,

No. 15-CV-8709 (AT) (GWG), 2016 WL 4916968, at *9 (S.D.N.Y. Sept. 14, 2016) (holding that,

even where “the ALJ made extensive efforts to evaluate the conflicts between [the opinion of the

claimant’s] treating physician . . . and the opinions of consultative examiners,” remand was

nevertheless appropriate “because of certain errors reflected in the ALJ’s decision regarding the

weight to be accorded to the consultative examiners”), report and recommendation adopted, 2016

WL 6269604 (S.D.N.Y. Oct. 25, 2016); Wilson v. Colvin, No. 15-CV-6316 (JWF), 2016 WL

5462838, at *12 (W.D.N.Y. Sept. 28, 2016) (remanding where “the ALJ’s decision to credit the

opinion of the consultative examiner over plaintiff’s treating physicians [was], as best the Court

can tell from the record, an arbitrary one”).

* * *

In sum, the Court finds that remand is necessary to enable the ALJ to obtain enough

information to determine whether the opinion of Dr. Becker—Plaintiff’s treating physician—is

entitled to controlling weight. See Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“[W]here

we are unable to fathom the ALJ’s rationale in relation to evidence in the record, especially where

credibility determinations and inference drawing is required of the ALJ, we will not hesitate to

remand for further findings or a clearer explanation for the decision.”) (quotations and citation

omitted). Although Dr. Becker’s medical opinion is not itself “determinative,” his opinion is

entitled to “controlling weight,” so long as the ALJ had enough information to determine that it

was “well supported by medically acceptable clinical and laboratory diagnostic techniques and []

not inconsistent with the other substantial evidence.” Green-Younger, 335 F.3d at 106; see also

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (“Even when a claimant is represented by

counsel, it is the well-established rule in our circuit that the social security ALJ, unlike the judge

in a trial, must on behalf of all claimants affirmatively develop the record in light of the essentially

non-adversarial nature of a benefits proceeding.”) (quotations, ellipsis, and citation omitted).

If, after soliciting the necessary information on remand, the ALJ determines that the

opinions of Drs. Becker and Misra are still entitled to little weight, he must adduce evidence from

a medical professional to support that conclusion. See Greek, 802 F.3d at 375. In doing so, the

ALJ should keep in mind that he “may give greater weight to a consultative examiner’s opinion

than a treating physician’s opinion if the consultative examiner’s conclusions are more consistent

with the underlying medical evidence.” Mayor v. Colvin, No. 15-CV-344 (AJP), 2015 WL

9166119, at *18 (S.D.N.Y. Dec. 17, 2015); see also Suarez, 102 F. Supp. 3d at 577 (noting that

the ALJ is free to give greater weight to consultative medical examiners’ opinions so long as he

documents his rationale for finding the relevant standards met).

CONCLUSION

For the reasons set forth above, the Court denies the Commissioner’s motion for judgment

on the pleadings and grants Plaintiff’s cross-motion. The Commissioner’s decision is remanded

for further consideration and new findings consistent with this Memorandum & Order. The Clerk

of Court is respectfully requested to enter judgment and close this case accordingly.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2019

Brooklyn, New York