# Bowler v. Commissioner of Social Security

> District Court, E.D. New York · January 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10303705

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303705

## How later opinions describe it (automated extraction)

- finding that the selective use of a treating physician’s opinion “undermines any provide “substantial evidence” contradictory to Dr. Mermelstein’s opinion. 16 argument that [the physician’s] opinion was so unreliable that it should not have been assigned controlling weight”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
BRIAN BOWLER,

Plaintiff,
MEMORANDUM & ORDER
-against- 18-CV-5068 (JS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
-----------------------------------X
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).
10

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
12

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.
13

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
15

“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.
16

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
17

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))).
18

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.)
19

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303705. Public record. Not legal advice.