Bowler v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRIAN BOWLER,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-5068 (JS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: Stacey Rinaldi Guzman, Esq.

Stanton, Guzman & Miller LLP

820 Hempstead Turnpike, 2nd Floor

Franklin Square, New York 11010

For Defendant: Candace Scott Appleton, Esq.

United States Attorney’s Office

Eastern District of New York

271 Cadman Plaza East

Brooklyn, New York 11201

SEYBERT, District Judge:

Plaintiff Brian Bowler (“Plaintiff”) brings this action

pursuant to Section 205(g) of the Social Security Act (the “Act”),

42 U.S.C. § 405(g), challenging the Commissioner of Social

Security’s (the “Commissioner”) denial of his application for

Social Security Disability Insurance Benefits. (Compl., D.E. 1,

¶¶ 1, 8.) Presently pending before the Court are the parties’

cross-motions for judgment on the pleadings. (Pl. Mot., D.E. 9;

Comm’r Mot., D.E. 13.) For the following reasons, Plaintiff’s

motion is GRANTED and the Commissioner’s motion is DENIED.

BACKGROUND!

On July 13, 2015, Plaintiff completed an application for

disability insurance benefits alleging that since

December 31, 2014, chronic obstructive pulmonary disease (“COPD”),

emphysema, chronic pneumonia, lumber spine pain, osteoarthritis,

venus insufficiency, hepatitis C, and cellulitis rendered him

disabled. (R. 187-88, 245.) After Plaintiff’s claim was denied

(R. 108-19), he requested a hearing before an Administrative Law

Judge (“ALJ”) (R. 120-21). On February 20, 2018, Plaintiff,

accompanied by counsel, appeared for a video hearing before the

ALJ. (R. 34-56.) A vocational expert also testified at the

hearing. (R. 47-55.)

In a decision dated March 8, 2018, the ALJ found that

Plaintiff was not disabled. (R. 12-33.) On July 6, 2018, the

Social Security Administration’s Appeals Council denied

Plaintiff’s request for review and the ALJ’s decision became the

final decision of the Commissioner. (R. 1-4.)

Plaintiff initiated this action on September 7, 2018

(see Compl.) and moved for judgment on the pleadings on

1 The background is derived from the Administrative Record filed

by the Commissioner on February 9, 2018. (“R.”, D.E. 8.) For

purposes of this Memorandum and Order, familiarity with the

Administrative Record is presumed. The Court’s discussion of

the evidence is limited to the challenges and responses raised

in the parties’ briefs.

April 4, 2019 (Pl. Mot.). On July 3, 2019, the Commissioner filed

a cross-motion for judgment on the pleadings. (Comm’r Mot.)

DISCUSSION

I. Standard of Review

In reviewing the ruling of an ALJ, the Court does not

determine de novo whether Plaintiff is entitled to disability

benefits. Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the

ALJ. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). If

the Court finds that substantial evidence exists to support the

Commissioner’s decision, the decision will be upheld, even if

evidence to the contrary exists. See Johnson v. Barnhart, 269 F.

Supp. 2d 82, 84 (E.D.N.Y. 2003).

II. The ALJ’s Decision

Here, the ALJ found that Plaintiff met the insured-status

requirements of his claim through December 31, 2017. (R. 18.)

Next, the ALJ applied the familiar five-step disability analysis

and concluded that Plaintiff was not disabled from

December 31, 2014, the alleged disability-onset date, through

December 31, 2017, the last date insured. (R. 18-29); see

20 C.F.R. § 404.1520. At steps one through three, the ALJ found

that (1) Plaintiff had not engaged in substantial gainful activity

since the alleged onset date, (R. 18); (2) Plaintiff had severe

impairments consisting of lumbago, degenerative disc disease, and

COPD (R. 18-19); and (3) Plaintiff’s impairments did not meet or

medically equal the severity of any of the impairments listed in

Appendix 1 of the Social Security regulations (R. 19-20).

The ALJ then determined that Plaintiff had the residual

functional capacity (“RFC”) “to perform light work (per the jobs

identified by the vocational expert) as defined in

20 CFR 404.1567(b).” (R. 20-27.) The vocational expert testified

that Plaintiff could find gainful employment as (1) an inspector

hand packager, (2) an electrical accessories assembler, (3) a

cashier, (4) a photo copy machine operator, and (5) a hand trimmer.

(R. 28.) The ALJ found that Plaintiff “could lift/carry fifty

pounds occasionally and twenty pounds frequently; sit eight hours,

up to four hours at a time; stand eight hours, up to two hours at

a time; and walk eight hours, up to two hours at a time” and that

Plaintiff could “change positions at the workstation, with no

interruption of the work.” (R. 20.) The ALJ further found

Plaintiff (1) “should never climb ladders or scaffolds and should

not work at unprotected heights,” (2) “could frequently tolerate

humidity and wetness,” (3) “should avoid concentrated exposure to

pulmonary irritants (i.e., dust, odors, fumes, gases and poor

ventilation),” and (5) “could tolerate loud (heavy traffic)

noise.” (R. 20.)

Proceeding to steps four and five, the ALJ found that

while (4) Plaintiff was unable to perform his past relevant work

as a recycling worker (R. 27), (5) considering his RFC, age,

education, and work experience, Plaintiff could make a successful

adjustment to work existing in significant numbers in the national

economy as an inspector hand packager, electrical accessories

assembler, cashier, photo copy machine operator, and hand trimmer

(R. 27-28). As a result, the ALJ determined that Plaintiff was

not disabled.* (R. 29.)

A. The ALJ’s RFC Determination

The ALJ addressed Plaintiff’s alleged claims of

disability due to “COPD, lumbar spine (pain), emphysema,

osteoarthritis, venous insufficiency, hepatitis C, cellulitis, and

chronic pneumonia” and referenced his testimony that he is unable

to work “due to breathing problems and pain in his back.”

(R. 20, 24.) However, the ALJ found that Plaintiff “does not

2 On March 7, 2013, Plaintiff filed a separate claim for

disability insurance benefits (the “Prior Disability Claim”)

that was denied on March 13, 2014. (R. 76, 76-86.) Among other

things, the ALJ found that Plaintiff had severe impairments

consisting of COPD, disc bulges, a back sprain/strain, neuroma

and mild osteoarthritis of the feet, venous insufficiency of the

lower extremities, hepatitis C (R. 78-79) and that Plaintiff had

the RFC to perform “the full range of sedentary work” but not

“more physical-demanding work. He is able to sit a total of six

hours in an eight-hour workday and is unable to lift/carry more

than five pounds frequently or ten pounds occasionally.”

(R. 80-84.) On August 14, 2015, Plaintiff filed an appeal to

the Bastern District of New York. (See No. 15-CV-4775, Bianco,

J.) On May 20, 2016, the Prior Disability Claim appeal was

administratively closed and “will be immediately re-opened and

restored to the Court’s active docket upon the full submission

of the motions for judgment on the pleadings.” (No. 15-CV-4775,

D.E. 9.) The Prior Disability Claim appeal remains closed.

appear to have a disabling physical condition” even though

Plaintiff’s impairments could “reasonably be expected to cause the

alleged symptoms” but that “these symptoms are not entirely

consistent with the medical evidence and other evidence in the

record.” (R. 24.)

In deciding Plaintiff’s RFC, the ALJ considered

Plaintiff’s testimony (R. 20-21), the ALJ’s determination from the

Prior Disability Claim (R. 21), and the “objective record evidence”

(R. 21). The ALJ detailed her review of the “objective record

evidence” (R. 21-23) and cited to records from Dr. Aftab Chaudhri,

Plaintiff’s primary care physician (R. 21), Dr. Jerome Caiati, who

performed a consultative examination (R. 22), Dr. Anil Mongia, who

performed consultative examination and conducted pulmonary testing

(R. 22), Dr. Steve Mermelstein, Plaintiff’s treating pulmonologist

(R. 22-23), Dr. Gregory Ajemian, Plaintiff’s treating internist

(R. 23), and Plaintiff’s ear nose and throat medical records

(R. 23).

The ALJ then addressed Plaintiff’s back impairment and

found that “consultative examination did not reveal any disabling

findings.” (R. 24.) The ALJ next turned to Plaintiff’s pulmonary

impairments and found that the “record does not reveal a work-

precluding pulmonary impairment.” (R. 24.)

The ALJ next considered statements and opinion evidence

(R. 25-26) and ultimately adopted and afforded significant weight

to the opinion of Dr. Edwin Cruz, a non-examining medical expert

who is board certified in internal medicine, pulmonary medicine,

and critical care (R. 26). Based solely on a review of medical

records, Dr. Cruz provided answers to medical interrogatories and

filled out a medical source statement of Plaintiff’s ability to do

work-related activities. (R. 680-92.) Among other things,

Dr. Cruz opined that Plaintiff (1) could occasionally lift/carry

up to 50 pounds (R. 681); (2) stand and walk for two hours at a

time, and sit, stand, and walk for eight hours in an eight-hour

work day (R. 682); and (3) climb stairs continuously (R. 684).

Dr. Cruz also stated that “PFTs [pulmonary function tests] suggest

sufficient reserve to perform mild-moderate activities.”

(R. 690.)

With respect to Plaintiff’s back impairments, (1) the

ALJ afforded some weight to spine specialist Dr. Sebastian

Lattuga’s assessment that Plaintiff should refrain from any

activity that exacerbates his symptoms (R. 25, 255-56) and (2) the

ALJ afforded some weight to the opinion of consultative examiner

Dr. Caiati (R. 25), who submitted an orthopedic medical source

statement (R. 401-04). Dr. Caiati opined that (1) Plaintiff was

unrestricted in “sitting, standing, walking, reaching, pushing,

and pulling” from a “musculosketal point of view,” (2) Plaintiff

had minimal to mild limitations to bend due to low back pain,

(3) Plaintiff had minimal limitations to climb due to bilateral

knee pain, and (4) Plaintiff had mild limitations to lift due to

low back and bilateral knee pain. (R. 404.)

As for Plaintiff’s pulmonary impairments, Dr. Mongia, a

consultative examiner who conducted pulmonary testing, opined,

among other things, that Plaintiff “was restricted from activities

requiring mild or greater exertion because of chronic pneumonia,

emphysema, and chronic bronchitis. He has mild to moderate

restriction for standing and walking, and moderate restriction for

squatting and kneeling because of knee problems.” (R. 410.)

Dr. Mongia also indicated that Plaintiff’s pulmonary function

tests revealed “mild to moderate restrictive pattern” and “moderate

obstruction” (R. 409) and that Plaintiff’s “chest exam does not

correlate with test result” (R. 411). The ALJ afforded

Dr. Mongia’s opinion “limited weight” and described it as “overly

restrictive and not consistent with the overall record.” (R. 25.)

Instead, the ALJ found that “[t]he overall record evidence is

consistent with a range of work included in the [RFC], per”

Dr. Cruz. (R. 25.)

In addition to his treatment notes, Dr. Mermelstein,

Plaintiff’s treating pulmonologist, submitted a “Pulmonary Medical

Source Statement” (R.532-35) and opined that Plaintiff is incapable

of even “low stress” jobs (R. 535) and that Plaintiff could rarely

lift 10 pounds, could only sit for 30 minutes, up to two hours at

a time, before needing to get up, could stand/walk less than two

hours, would take several unscheduled breaks during a working day,

and will be “off task” fifteen percent of the time in a competitive

eight-hour work day (R. 533-34).

The ALJ recognized that Dr. Mermelstein has treated

Plaintiff since 2012 but assigned Dr. Mermelstein’s pulmonary

medical source statement “limited weight” as “inconsistent with

Dr. Mermelstein’s own reports and the overall record evidence.”

(R. 26.) In support, the ALJ articulated that “treatment notes

reflect that [Plaintiff] was doing reasonably well,” that “[s]ome

dyspnea was due to weight gain,” Plaintiff was “only to continue

with monitoring and medications, including inhalers and

nebulizer,” “[f]ollow up was in six months,” and Dr. Mermelstein’s

“assessment appears to be based on the [Plaintiff]’s self-reports,

as the overall record does not corroborate such extreme

limitations.” (R. 26.) Instead, the ALJ found the record evidence

“more consistent with the opinions of Dr. Cruz,” the non-examining

medical expert, “for a range of medium to light work.” (R. 26.)

III. Analysis

Plaintiff first contends that the ALJ violated the

treating physician rule by (1) failing to provide good reasons to

discount Dr. Mermelstein’s opinion that Plaintiff is incapable of

even “low stress” jobs; (2) failing to identify the weight afforded

to Dr. Mermelstein’s opinion; and (3) failing to contact

Dr. Mermelstein before according his opinion limited weight.? (Pl.

Mot. at ECF pp. 9-11.) Plaintiff further argues that the ALJ’s

decision “lacks the support of substantial evidence” (Pl. Mot. at

ECF pp. 11-13) and that the ALJ failed to properly evaluate

Plaintiff’s subjective complaints (Pl. Mot. at ECF pp. 13-15).

The Commissioner contends that the ALJ’s RFC finding is

supported by substantial evidence because (1) the ALJ properly

afforded more weight to the consulting medical expert (Comm’r Br.,

D.E. 14, at 20-24), (2) Dr. Mermelstein’s physical function

opinion contradicted his treatment notes and was inconsistent with

medical evidence (Comm’r Br. at 24-27), and (3) the ALJ properly

considered Plaintiff’s subjective complaints (Comm’r Br. at 28-

30.)

A, The Treating Physician Rule?’

The “treating physician rule” provides that the medical

opinions and reports of a claimant’s treating physicians are to be

3 The ALJ addressed Plaintiff’s claim for disability based on his

back impairment and pulmonary impairment. It does not appear

that Plaintiff appeals the portion of the ALJ’s RFC finding with

respect to Plaintiff’s back impairment and thus the Court limits

its inquiry to the ALJ’s RFC finding with respect to Plaintiff’s

pulmonary-related impairment.

[T]he Court reviews the ALJ’s decision under the earlier

regulations because the Plaintiff’s application was filed before

the new regulations went into effect.” Williams v. Colvin, No.

16-CV-2293, 2017 WL 3701480, at *1 (E.D.N.Y. Aug. 25, 2017).

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given “special evidentiary weight.” Clark v. Comm’r of Soc. Sec.,

143 F.3d 115, 118 (2d Cir. 1998). The regulations state:

Generally, we give more weight to medical

opinions from your treating sources . . . .

If we find that a treating source’s medical

opinion on the issue(s) of the nature and

severity of your impairment(s) is well-

supported by medically acceptable clinical and

laboratory diagnostic techniques and is not

inconsistent with the other substantial

evidence in your case record, we will give it

controlling weight.

20 C.F.R. § 404.1527(c)(2) (emphasis supplied; second and third

alterations in original). Thus, the opinion of a treating

physician “need not be given controlling weight where [it is]

contradicted by other substantial evidence in the record.” Molina

v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y. Aug. 7,

2014) (internal quotation marks and citation omitted).

When an ALJ does not afford controlling weight to the

opinion of a treating physician, the ALJ must consider several

factors: “(1) the length of the treatment relationship and

frequency of the examination; (2) the nature and extent of the

treatment relationship; (3) the extent to which the opinion is

supported by medical and laboratory findings; (4) the physician’s

consistency with the record as a whole; and (5) whether the

physician is a specialist.” Schnetzler v. Astrue, 533 F. Supp. 2d

272, 286 (E.D.N.Y. 2008). The ALJ must also set forth “‘good

reasons’ for not crediting the opinion of a [plaintiff’s] treating

physician.” Id. at 287. An ALJ provides “‘good reasons’ for

discounting a treating physician’s opinion that reflect in

substance the factors as set forth in [Section] 404.1527 (2),

even though the ALJ declines to examine the factors with explicit

reference to the regulation.” Crowell v. Comm’r of Soc. Sec., 705

F. App’x 34, 35 (2d Cir. 2017) (“While the ALJ did not explicitly

discuss the treating physician rule, he nonetheless stated that

[the physician’s] opinion .. . was contradictory to the rest of

the record evidence.”). “Ultimately, an ALJ must comprehensively

set forth her reasons for the weight assigned to a treating

physician’s opinion.” Id. (internal quotation marks and citation

omitted).

As a preliminary matter, Plaintiff’s argument that the

ALJ failed to specify the weight assigned to Dr. Mermelstein’s

opinion necessarily fails. The ALJ explicitly assigned

Dr. Mermelstein “limited weight.” (R. 26.) Thus, the ALJ was

obligated to consider the above-referenced factors when deciding

to assign Dr. Mermelstein’s opinion less than controlling weight.

However, the ALJ failed to follow the treating physician

rule. The ALJ assigned “little weight” to the opinions of

Dr. Mermelstein and Dr. Mongia, the only physicians to treat and

opine on Plaintiff’s pulmonary impairments? and his ability to

° The remainder of the ALJ’s RFC decision either relates to

Plaintiff’s back impairment and/or “merely summarizes the

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engage in work-related functions and whose opinions the ALJ

described as “extreme” (R. 26) and “overly restrictive” (R. 25),

respectively. From a pulmonary perspective, the opinion from

Dr. Cruz, the mnon-examining medical expert, is the least

restrictive medical opinion in the record. See Tanya S. v. Saul,

No. 18-CV-00326, 2019 WL 4727446, at *7 (N.D.N.Y. Sept. 27, 2019);

(R. 690). Yet the ALJ afforded Dr. Cruz’s opinion “significant

weight and [ ] adopted [it] in the” RFC. (R. 26.) Thus, in

“exclusively relying on” and, in fact, adopting Dr. Cruz’s medical

source statement, the ALJ “clearly erred.” Bradley v. Colvin, 110

F. Supp. 3d 429, 444 (EBE.D.N.Y. 2015) (citing Vargas, 898 F.2d at

295; Fernandez, 2013 WL 1291284, at *16; Roman v. Astrue, No. 10-

CV-3085, 2012 WL 4566128, at *16 (E.D.N.Y. Sept. 28, 2012)); Garcia

v. Comm’r of Soc. Sec., No. 17-CV-02715, 2019 WL 1385222, at *20

(E.D.N.Y. Mar. 27, 2019) (“The Second Circuit has indicated that,

by extension of the treating physician rule, ALJs should not rely

heavily on findings by consultative examiners or non-examining

doctors.”).

Moreover, to the extent the ALJ’s finding that Plaintiff

was “only to continue with monitoring and medications, including

medical evidence and [Plaintiff’s] testimony and cites to

treatment notes that do not address how [Plaintiff’s pulmonary]

impairments affect [his physical] ability to perform work-

related functions.” Stein v. Colvin, No. 15-CV-6753, 2016 WL

7334760, at *4 (W.D.N.Y. Dec. 19, 2016); see R. 20-27.

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inhalers and nebulizer” and that “[f]ollow up was in six months”

can be construed as discounting Dr. Mermelstein’s opinion as

“conservative,” that is “not a ‘good reason’ to reject a treating

physician’s medical opinion.” (R. 26 (emphasis added)); Destina

v. Berryhill, No. 17-CV-2382, 2018 WL 4964103, at *6 (E.D.N.Y.

Oct. 15, 2018) (citing Morris v. Colvin, No. 12-CV-5600, 2016 WL

7235710, at *9 (E.D.N.Y. Dec. 14, 2016)). “In this Circuit, the

opinion of a treating physician is not ‘to be discounted merely

because he has recommended a conservative treatment regimen.’”

Destina, 2018 WL 4964103, at *6 (quoting Burgess v. Astrue, 537

F.3d 117, 129 (2d Cir. 2008)) (subsequent citation omitted). “Such

a reason ‘falls far short of the standard for contradictory

evidence required to override the weight normally assigned the

treating physician’s opinion.’” Id. (quoting Shaw v. Chater, 221

F.3d 126, 134 (2d Cir. 2000)).

Thus, the ALJ traversed the treating physician rule and

on remand the ALJ should “endeavor to obtain enough information to

determine whether the opinion” of Dr. Mermelstein is entitled to

controlling weight. Murphy v. Saul, No. 17-CV-1757, 2019 WL

4752343, at *7 (E.D.N.Y. Sept. 30, 2019); Balodis v. Leavitt, 704

F. Supp. 2d 255, 268 (E.D.N.Y. 2010).

B. Substantial Evidence

The Court also finds that Plaintiff’s pulmonary-related

RFC is not supported by substantial evidence. The Commissioner

argues that the “ALJ’s detailed RFC finding is supported by

substantial evidence, in particular the opinions of médical expert

pulmonologist Dr. Cruz and consulting physician

Dr. Caiati ... .” (Comm’r Br. at 21.) “In order for the Court

to determine whether a treating physician’s opinion is consistent

with other substantial evidence in the administrative record, the

Court must keep in mind that ‘genuine conflicts in the medical

evidence are for the ALJ to resolve.’” Winder v. Berryhill, 369

F. Supp. 3d 450, 457 (E.D.N.Y. 2019) (quoting Gunter v. Comm’r of

Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010)) (subsequent

Citation omitted). However, “in determining a claimant’s RFC,

‘even where a nonexamining opinion is afforded weight, it alone

cannot be considered substantial evidence’” and “may not be

accorded significant weight.’” Ciambra v. Colvin, No. 15-CV-3474,

2017 WL 1323758, at *10, 12 (E.D.N.Y. Mar. 27, 2017) (quoting

D’Augustino v. Colvin, No. 15-CV-6083, 2016 WL 5081321, at *2

(W.D.N.Y. Sept. 16, 2016) and Roman v. Astrue, 2012 WL 4566128, at

*16 and collecting cases)). Thus, “the evidence that purportedly

contradicted [Dr. Mermelstein’s] opinion was not substantial

evidence”® and the limitations identified by Dr. Mermelstein are

6 Dr. Caiati, a consultative physician, submitted an orthopedic

examination report and not a pulmonary examination report.

(R. 401-04.) As stated above, the Court’s inquiry is cabined to

the ALJ's RFC finding with respect to Plaintiff’s pulmonary-

related impairments and thus Dr. Caiati’s opinion does not

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“inconsistent with retaining the ability to perform” light work.

See, e.g., Ingrassia v. Colvin, 239 F. Supp. 3d 605, 627 (E.D.N.Y.

2017); Ciambra, 2017 WL 1323758, at *12.

The ALJ also found that Dr. Mermelstein’s opinion is

“inconsistent with Dr. Mermelstein’s own reports,” including

treatment notes that Plaintiff was doing “reasonably well.”

(R. 26.) However, Dr. Mermelstein’s “records contain only raw

medical evidence from each particular visit,” such as that

Plaintiff was doing “reasonably well,” and “do not assess

[Plaintiff’s] ability to engage in competitive work on a regular

and continuing basis despite” his impairments. Stein, 2016 WL

73347600, at *4; see 20 C.F.R. § 416.945(b) (stating that the SSA

will evaluate the claimant’s ability to work on a “regular and

continuing basis” when assessing his or her physical abilities).

Thus, it is not entirely clear that Dr. Merlmelstein’s treatment

notes and medical source statement are inconsistent.

Nonetheless, “even if [Dr. Mermelstein’s] treatment

notes were inconsistent with his medical opinions, the ALJ

inappropriately ‘cherry picked’ the notes that supported his

conclusion while ignoring those that did not.” Destina, 2018 WL

4964103, at *6 (citing Shaw, 221 F.3d at 135 (finding that the

selective use of a treating physician’s opinion “undermines any

provide “substantial evidence” contradictory to

Dr. Mermelstein’s opinion.

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argument that [the physician’s] opinion was so unreliable that it

should not have been assigned controlling weight”)). Therefore,

“[TijJf the ALJ believed that there was a discrepancy in the

physician’s opinions, he should have exercised his discretion to

develop the record to resolve any conflict,” including evidence

that Plaintiff was doing “reasonably well” (R. 498) with

Plaintiff’s inability to tolerate “even ‘low stress’ jobs”

(R. 535). Destina, 2018 WL 4964103, at *6 (citing Jimenez v.

Astrue, No. 12-CV-3477, 2013 WL 4400533, at *11 (S.D.N.Y. Aug. 14,

2013) (parenthetical and subsequent citations omitted)); Pensiero

v. Saul, No. 19-CV-0279, 2019 WL 6271265, at *4 (D. Conn. Nov. 25,

2019) (“[W]hen the treatment notes and test results from the

claimant’s treating physicians do not assess how the claimant’s

symptoms limit [her] functional capacities, remand is warranted.”)

(alterations in original) (citation omitted); Corrigan v. Comm’r

of Soc. Sec. Admin., No. 18-CV-5686, 2019 WL 5212850, at *5

(EB.D.N.Y. Oct. 16, 2019); Delacruz v. Astrue, No. 10-CV-05749,

2011 WL 6425109, at *15 (S.D.N.Y. Dec. 1, 2011), R&R adopted, 2011

WL 6425101 (S.D.N.Y. Dec. 21, 2011); Newson v. Comm’r of Soc. Sec.,

No. 17-CV-2718, 2019 WL 6173400, at *3 (E.D.N.Y. Nov. 20, 2019

(“It is the ALJ’s job to grapple with inconsistencies and develop

an incomplete record further.”); Murphy, 2019 WL 4752343, at *7.?

7’ The Commissioner argues that Dr. Mermelstein’s opinion is

inconsistent with his treatment notes because he “repeatedly

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With respect to Plaintiff’s pulmonary impairments,

Dr. Cruz cited unspecified pulmonary function tests to opine that

Plaintiff has “sufficient reserve to perform mid-moderate

activities.” (R. 690.) Even assuming Dr. Cruz’s opinion

constitutes “substantial evidence,” which it does not, this

finding is nonetheless “unhelpful because [it was] vague regarding

the Plaintiff’s limitations.” Ingrassia, 239 F. Supp. at 625.

The “Second Circuit has explicitly said that a ‘[doctor]’s use of

the terms ‘moderate’ and ‘mild,’ without additional information,

does not permit the ALJ, a layperson notwithstanding [his]

considerable and constant exposure to medical evidence, to make

the necessary inference that [the plaintiff] can perform the

exertional requirements of [light] work.’” Id. at 625-26 (quoting

Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000) superceded by

statute on other grounds, 20 C.F.R. § 404.1560(c) (2) and citing

Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013)) (alterations

in original). Here, Dr. Cruz’s assessment that Plaintiff has

“sufficient reserve to perform mild-moderate activities” (R. 690)

found that Plaintiff was not in respiratory distress and did not

exhibit ‘increased work of breathing.’” (Comm’r Br. at 25.)

The ALJ did not cite to these records as inconsistent and, for

the reasons articulated above, the Court does not consider these

records as contradictory as the Commissioner argues them to be.

Newbury v. Astrue, 321 F. App’x 16, 18 (2d Cir. 2009) (‘A

reviewing court ‘may not accept appellate counsel’s post hoc

rationalizations for agency action.’” (quoting Snell v. Apfel,

177 F.3d 128, 134 (2d Cir. 1999))).

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does not “have any meaning and is not substantial evidence.”®

Ingrassia, 239 F. Supp. at 626.

Moreover, the Court recognizes that Dr. Cruz did not

provide a “pulmonary medical source statement” (see, e.g., R. 532-

35) but rather a “medical source statement of ability to do work-

related activities” (R. 681-92) and opined on Plaintiff's

complaints of pulmonary disease, lumbago, and radiculopathy

(R. 692). The Court cannot determine whether Dr. Cruz’s opinion

regarding Plaintiff’s ability to sit, stand, and walk were limited

to Plaintiff’s back impairments or in combination with Plaintiff’s

pulmonary impairments. (Compare Comm’r Br. at 24 (“No treating

doctor opined that Plaintiff was unable to work due to his back

impairment, Dr. Cruz, however, evaluated the evidence pertaining

specifically to Plaintiff’s back [ ] and opined [ ] that he could

perform a range of light work”) with Comm’r Br. at 22 (“Dr. Cruz

noted that Plaintiff’s pulmonary function testing, despite some

negative findings that a layperson may conclude prevent working,

opined that Plaintiff had sufficient reserve to perform mild-

moderate activities.”) .)

Accordingly, “the ALJ’s determination of [Plaintiff’s]

RFC was not supported by substantial evidence, and must be

overturned.” Bradley, 110 F. Supp. 3d at 445 (citing McKissick v.

® For the same reasons, Dr. Mongia’s opinions are similarly

vague. (See R. 410-11.)

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Barnhart, No. 01-CV-1550, 2002 WL 31409933, at *16 (E.D.N.Y

Sept. 30, 2002) (finding Commissioner’s decision not supported by

substantial evidence where non-examining medical expert disagreed

with treating physicians’ limitations opinions)).

In light of these findings, the Court need not address

Plaintiff’s additional contentions. Plaintiff may address those

issues on remand.

CONCLUSION

Accordingly, Plaintiff’s motion (D.E. 9) is GRANTED and

the Commissioner’s motion (D.E. 13) is DENIED. This matter is

REMANDED for proceedings consistent with this Memorandum and

Order. The Clerk of the Court is directed to mark this case

CLOSED.

SO ORDERED

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: January 7__, 2020

Central Islip, New York