Granata v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANNE GRANATA,

Plaintiff,

v. MEMORANDUM & ORDER

ANDREW M. SAUL, Commissioner of 18-cv-5197 (KAM)

Social Security,1

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Anne Granata (“Plaintiff”) appeals the final

decision of the Commissioner of Social Security (the

“Commissioner”), which found her not disabled within the meaning

of the Social Security Act (the “Act”) at any point between

November 10, 2014, the alleged onset of her disability, and

December 31, 2016, her date last insured, and thus not eligible

for Disability Insurance Benefits (“DIB”) under Title II of the

Act for that period. Before the court are the parties’ cross-

motions for judgment on the pleadings. For the reasons set

forth below, the Commissioner’s motion for judgment on the

pleadings is DENIED, Plaintiff’s motion is GRANTED in part and

DENIED in part, and this action is REMANDED for further

proceedings consistent with this Memorandum and Order.

1 Plaintiff sued Nancy A. Berryhill (“Berryhill”) as Acting Commissioner of

Social Security. On June 17, 2019, Andrew M. Saul (“Saul”) became the

Commissioner of Social Security. Because Plaintiff sued Berryhill in only

her official capacity, Saul is automatically substituted for Berryhill as the

named defendant. See Fed. R. Civ. P. 25(d). The Clerk of the Court shall

amend the caption in this case as indicated above.

Background

This action arises from Plaintiff’s application for

social security benefits following an injury she sustained at

work on October 20, 2014. Plaintiff, then working as a slot

ambassador at a casino, sat on an unstable chair and, when the

chair broke, fell to the ground and sustained injuries. The

parties entered a joint stipulation of facts dated May 16, 2019.

(ECF No. 21, Joint Stipulation of Relevant Facts from the

Certified Administrative Record (“Stip.”).) The Court

incorporates the facts contained therein by reference and

details only those relevant to this Memorandum and Order.

I. Procedural History

On April 15, 2015, Plaintiff, then age 28, filed an

application for disability insurance benefits (“DIB”) under

Title II of the Social Security Act (the “Act”).2 (ECF No. 22,

Administrative Transcript (“Tr.”), at 28, 147.) Plaintiff

alleged disability beginning November 10, 2014, due to

impairments of the lumbar spine and left leg, specifically,

lumbar stenosis, lumbar spine impairment, bulging and herniated

disc, and left leg impairment. (Id. at 163.)

Following denial of her application, Plaintiff requested

a hearing before an Administrative Law Judge. (Id. at 71-84.)

2 Plaintiff filed her application on July 10, 2015. (Tr. at 147.) The

application was given a protective filing date of April 15, 2015. (See id.)

On July 24, 2017, Plaintiff appeared with a non-attorney

representative for a hearing before Administrative Law Judge

Charles Woode (“the ALJ”). (Id. at 36-59.) Plaintiff and an

impartial vocational expert, Martin Kranitz (“Mr. Kranitz”),

testified at the hearing. (Id.)

By decision dated August 15, 2017, the ALJ issued a

decision finding Plaintiff not disabled and denying Plaintiff’s

application for DIB on the grounds that Plaintiff could perform

her past work and other sedentary jobs in the national economy.

(Id. at 16-35.) The Appeals Council denied Plaintiff’s request

for review. (Id. at 1-6, 143-46.) This action followed.

II. Relevant Evidence

As noted above, Plaintiff’s alleged disability began

following her fall from a broken chair in late 2014. Subsequent

to her fall, Plaintiff sought treatment from a number of medical

professionals who opined on her ability to return to work. The

following provides an overview of the relevant medical opinions

in this action, as well as the testimony of the vocational

expert, to the extent it is relevant to determination of the

instant cross-motions for judgment on the pleadings.

a. Medical Opinions

i. Alvin Hershfeld, M.D.

On November 12, 2014, Alvin Hershfeld, M.D. (“Dr.

Hershfeld”), examined Plaintiff. (Id. at 318, 335.) Dr.

Hershfeld diagnosed lumbar derangement and acute pain, and

opined that Plaintiff was “totally disabled” for an undetermined

period. (Id.) MRI studies of the lumbosacral spine conducted

by Daniel Schusselberg, M.D., the same day, revealed “a lateral

bulge with bilateral neuroforaminal narrowing, lateral recess

stenosis[,] and spinal stenosis” at the L2-L3 vertebrae; “a

bulging disc” at the L4-L5 vertebrae; and “a central disc bulge

with bilateral facet arthropathy and relative spinal stenosis”

at the L5-S1 vertebrae. (Id. at 326.)

On November 24, 2014, Plaintiff presented to Dr.

Hershfeld for a follow-up examination. (Id. at 319, 336.) Dr.

Hershfeld reiterated his opinion that Plaintiff was “totally

disabled” for an undetermined period. (Id.) Dr. Hershfeld

amended his diagnoses to multiple lumbar bulging discs and

lumbar spinal stenosis. (Id.)

On December 8, 2014, Plaintiff presented to Dr.

Hershfeld for another follow-up examination. (Id. at 642.) Dr.

Hershfeld noted that Plaintiff’s symptoms were moderate, but

that there had been a slight worsening of Plaintiff’s symptoms

since onset. (Id.) Dr. Hershfeld noted that Plaintiff’s “gait

is abnormal” due to severe lower back pain. (Id. at 643.) Dr.

Hershfeld again assessed lumbar pain with herniated disc and

spinal stenosis. (Id.)

On February 7, 2015, Plaintiff presented to Dr.

Hershfeld for a final follow-up examination. (Id. at 644.) Dr.

Hershfeld reported that Plaintiff’s gait had returned to normal.

(Id. at 645.) In the other direction, Dr. Hershfeld found that

“[t]here is back abnormality on palpation” and “[p]ain on

palpation,” and that Plaintiff’s “[m]obility is restricted.”

(Id.) Dr. Hershfeld noted that Plaintiff was limping. (Id.)

ii. Alvin Bregman, M.D.

On December 2, 2014, Alvin Bregman, M.D. (“Dr.

Bregman”), completed an independent orthopedic examination of

Plaintiff in conjunction with her workers’ compensation claim.

(Id. at 543-546.) Plaintiff complained of lower back pain with

radiating pain to her left lower extremity to foot. (Id. at

543.) Dr. Bregman noted that Plaintiff “has an abnormal gait

and walks on toes and heels with difficulty.” (Id.) Dr.

Bregman noted tenderness over the lumbosacral region. (Id.)

With respect to the lumbar spine, Dr. Bregman noted:

Straight leg raising is positive to 25 degrees on the right

and positive to 5 degrees on the left. Voluntary range of

motion of the lumbar spine reveals forward flexion 0 to 30

degrees (0 to 90 degrees normal), extension 0 degrees (0 to

30 degrees normal), right lateral flexion 0 to 10 degrees

(0 to 45 degrees normal) and left lateral flexion 0 to 10

degrees (0 to 45 degrees normal).

Neurological examination revealed patellar deep tendon

reflexes to be 2+ on the right and 1+ on the left.

Achilles deep tendon reflexes reveal to be 1 + bilaterally.

Muscle strength of the lower extremities is graded at 5/5

on the right and 4/5 on the left. There is claimed

radiation of pain, numbness and tingling on the left.

(Id. at 544-45.) Dr. Bregman diagnosed internal derangement of

the lumbar spine. (Id. at 545.) Dr. Bregman opined that

Plaintiff had a “moderate partial disability” and could return

to work “with limitations of no lifting, pushing[,] or pulling

objects greater than 15 pounds.” (Id.)

On May 11, 2015, Plaintiff presented to Dr. Bregman

for an independent orthopedic re-examination in connection with

her workers’ compensation claim. (Id. at 560-63.) Plaintiff

complained of “lower back pain radiating to the left lower

extremity with tingling of the left foot,” along with

“difficulty bending and lifting heavy objects.” (Id. at 561.)

Dr. Bregman again noted that Plaintiff “has an abnormal gait and

walks on toes and heels with difficulty.” (Id. at 562.) Dr.

Bregman also reiterated his finding that “[t]here is tenderness

noted over the lumbosacral region.” (Id. at 562.) With respect

to the lumbar spine region, Dr. Bregman made substantially

similar, if slightly more restrictive, findings as to flexion.

(Id.) Dr. Bregman diagnosed internal derangement of the lumbar

spine with lumbar radiculopathy. (Id.) Dr. Bregman found that

Plaintiff had “a moderate disability” and could return to work

“with limitations of no lifting, pushing or pulling of objects

greater than 15 pounds.” (Id. at 563.) The duration of the

limitations was indeterminate in length. (Id.) Plaintiff

returned to Dr. Bregman on October 5, 2015, but Dr. Bregman’s

diagnoses and findings remained unchanged. (Id. at 566-69.)

On May 31, 2016, Dr. Bregman examined Plaintiff and

made diagnoses and impressions largely consistent with those

made at prior visits. (Id. at 574-76.) Dr. Bregman observed

that Plaintiff’s abilities were now more limited and opined that

Plaintiff “should not return to work at this time and should

avoid . . . lifting, pushing[,] or pulling of objects greater

than 5 points.” (Id. at 576.) Dr. Bregman treated Plaintiff

again on October 25, 2016 and March 6, 2017. (Id. at 598-99,

604-06.) On both occasions, Dr. Bregman noted that Plaintiff

had no active range of motion in her lumbar spine; opined that

Plaintiff should not return to work, and should avoid lifting,

pushing, and pulling objects greater than five pounds; and

indicated that Plaintiff had “a marked disability.” (Id.)

iii. Norman Sveilich, D.O.

On December 22, 2014, Plaintiff presented to Norman

Sveilich, D.O. (“Dr. Sveilich”), in conjunction with her

workers’ compensation claim. (Id. at 328-31.) Plaintiff’s gait

and stance were normal. (Id. at 330.) Examination of

Plaintiff’s lumbosacral spine revealed some tenderness on

palpation. (Id. at 329.) Dr. Sveilich also noted lumbar

flexion to 45 degrees, extension to 15 degrees, and bilateral

rotation and lateral flexion to 30 degrees. (Id. at 330.)

Plaintiff’s straight-leg raising tests were negative. (Id.)

Dr. Sveilich noted that X-rays of Plaintiff’s lumbosacral spine

revealed no evidence of any osteoarticular abnormality. (Id.)

Dr. Sveilich further noted that the “[c]linical [exam] and

office x-ray do not agree with MRI [study taken in November

2014] at all.” (Id.) Dr. Sveilich diagnosed lower back pain

herniated nucleus pulposus (“HNP”) at the L3-S1 vertebrae,

lumbar and lower back sprain, and lumbar strain. (Id.) Dr.

Sveilich assessed total temporary disability. (Id. at 331.)

iv. Andrew Cordiale, D.O.

On January 9, 2015, Andrew Cordiale, D.O. (“Dr.

Cordiale”), examined Plaintiff in connection with her lower back

pain complaints. (Id. at 304-05.) Plaintiff’s musculoskeletal

physical examination revealed restricted lumbar ranges of

motion: flexion to 20 degrees (normal is 90 degrees); extension

to 10 degrees (normal is 40 degrees); and bilateral turning to

35 degrees (normal is 60 degrees). (Id.) Examination of

Plaintiff’s lumbar spine revealed abnormal coordination and

antalgic gait. (Id. at 305.) Dr. Cordiale found full motor

strength in Plaintiff’s left quadriceps, left hamstring, right

tibialis anterior, and right extensor hallucis longus (“EHL”).

(Id.) Plaintiff demonstrated 4/5 strength in her hips, right

hamstring, left tibialis anterior, and left EHL. (Id.)

Dr. Cordiale diagnosed lumbar radiculopathy. (Id.)

Dr. Cordiale opined that Plaintiff should refrain from any

activity that exacerbates symptoms, such as heavy lifting,

carrying, or bending. (Id.) Examinations by Dr. Cordiale on

March 19, 2015 and May 7, 2015 revealed similarly restricted

lumbar ranges of motion and similar strength, sensation, and

reflexes. (Id. at 307, 309.) Dr. Cordiale’s opinion remained

identical to his initial assessment. (Id.)

v. Jeffrey Chacko, M.D.

On January 19, 2015, Jeffrey Chacko, M.D. (“Dr.

Chacko”), examined Plaintiff in connection with her complaints

of lower back pain. (Id. at 288.) Dr. Chacko’s examination

revealed restricted lumbar range of motion, with flexion to 60

degrees (normal is 90 degrees), extension to 15 degrees (normal

is 40 degrees), and bilateral turning to 40 degrees (normal is

60 degrees). (Id. at 289.)

Dr. Chacko diagnosed lumbar radiculopathy and lumbar

spondylosis. (Id. at 290.) Dr. Chacko opined that Plaintiff

should refrain from any activity that exacerbates symptoms, such

as heavy lifting, carrying, or bending. (Id.) Plaintiff

presented to Dr. Chacko for follow-up visits on February 15,

2015 and April 14, 2015. (Id. at 292-94, 298-300.) Dr.

Chacko’s assessments of Plaintiff’s range of motion, strength,

sensation, and reflexes, and his overall assessment, remained

unchanged from his initial evaluation. (Id.)

vi. Vincent Leone, M.D.

On May 29, 2015, Plaintiff presented to Vincent Leone,

M.D. (“Dr. Leone”), for a second opinion on her back pain. (Id.

at 392-394.) Plaintiff noted that her pain was “10 out of 10,”

and indicated that her symptoms occur while walking, sitting,

standing, and lifting. (Id. at 392.) Dr. Leone observed that

Plaintiff’s gait was antalgic. (Id. at 393.) Dr. Leone also

noted that Plaintiff’s lumbar range of spine was limited and

painful. (Id.) Dr. Leone, however, found that Plaintiff

exhibited full motor strength in her bilateral lower

extremities, and her senses were intact. (Id.) Dr. Leone

assessed lower back pain. (Id.)

vii. Sebastian Lattuga, M.D.

On July 13, 2015, Sebastian Lattuga, M.D. (“Dr.

Lattuga”), examined Plaintiff in connection with her lower back

pain. (Id. at 416-17.) Dr. Lattuga’s examination of

Plaintiff’s lumbar spine revealed abnormal coordination and

antalgic gait. (Id. at 417.) Dr. Lattuga noted restricted

lumbar range of motion, with flexion to 15 degrees (normal is 90

degrees), extension to 5 degrees (normal is 40 degrees), and

left and right turning to 30 degrees (normal is 60 degrees).

(Id. at 416-17.) Dr. Lattuga also noted full motor strength in

Plaintiff’s left quadriceps, left hamstring, right tibialis

anterior, and right EHL. (Id. at 417.) Plaintiff demonstrated

4/5 strength in her hips, right hamstring, left tibialis

anterior, and left EHL. (Id.)

Dr. Lattuga diagnosed lumbar radiculopathy. (Id.)

Dr. Lattuga opined that Plaintiff should refrain from any

activity that exacerbates symptoms such as heavy lifting,

carrying, or bending. (Id.) Plaintiff presented to Dr. Lattuga

for follow-up examinations on October 23, 2015, January 15,

2016, April 4, 2016, and July 18, 2016. (Id. at 310-11, 422-23,

312-13, 314-15.) Dr. Lattuga noted slight fluctuations in

Plaintiff’s pain and range of motion across these subsequent

examinations, but all other findings and Dr. Lattuga’s opinion

remained unchanged. (Id.)

viii. Demetrios Mikelis, M.D.

On January 1, 2017, Plaintiff presented to Demetrios

Mikelis, M.D. (“Dr. Mikelis”), in connection with her lower back

pain. (Id. at 316-17.) Plaintiff indicated that her pain was

“9.5:10.” (Id. at 316.) Dr. Mikelis noted that Plaintiff had

abnormal coordination and antalgic gait. (Id. at 317.)

Plaintiff also had restricted lumbar range of motion, with

flexion to 20 degrees, extension to 10 degrees, and bilateral

turning to 15 degrees. (Id.) Plaintiff’s motor exam remained

unchanged from prior examinations with Dr. Lattuga. (See id.)

Dr. Mikelis diagnosed lumbar herniated nucleus pulposus with

radiculopathy. (Id.) Dr. Mikelis opined that Plaintiff should

refrain from any activity that exacerbates symptoms, including

heavy lifting, carrying or bending. (Id.)

On March 3, 2017, Plaintiff presented to Dr. Mikelis

for a follow-up examination. (Id. at 321-22.) Plaintiff’s pain

had decreased to 6 out of 10, and her flexion range of motion

had improved to 25 degrees. (Id.) All other examination

findings remained consistent with the prior examination, and Dr.

Mikelis’ opinion remained unchanged. (Id. at 322.)

b. Vocational Expert Testimony

Mr. Kranitz, a vocational expert, testified at

Plaintiff’s hearing at the Commissioner’s request. (Id. at 51-

58.) Mr. Kranitz noted that evidence in the record reflected

Plaintiff’s past work as a: ticket agent, Dictionary of

Occupational Title (“DOT”) 248.382-010, SVP-4 and sedentary

(medium, as typically performed); waitress, DOT 211.477-030,

SVP-3 and light; and slot ambassador (arcade attendant), DOT

342.667-014, SVP-2 and light. (Id. at 52.)

Mr. Kranitz testified that an individual with

Plaintiff’s age and education, limited to sedentary work with

the additional limitations of occasional stooping, kneeling,

crouching, climbing, pushing/pulling controls with their lower

extremities, and never climbing ladders, ropes, or scaffolds,

could perform Plaintiff’s past work as a ticket agent as the job

was described in the DOT (but not as performed3). (Id. at 53.)

Mr. Kranitz also testified that this individual could find work

in the national economy as an information clerk, DOT 237.367-

046, SVP-2; inspector, DOT 739.687-182, SVP-2; and assembler,

DOT 700.687-062, SVP-2. (Id.)

Mr. Kranitz further testified that this individual

could perform Plaintiff’s past work as a ticket agent, or find

work in the national economy, even with the additional

limitation that she be required to have the opportunity to

elevate the left leg to waist level, for 15 to 30 minutes at a

time, three to four times a day. (Id. at 55-56.) Mr. Kranitz,

however, stated that there would be no available jobs in the

national economy if the hypothetical were changed from

occasional stooping to never stooping. (Id. at 56-58.)

Standard of Review

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3). The reviewing court does not have the authority to

conduct a de novo review, and may not substitute its own

judgment for that of the ALJ, even when it might have

3 Mr. Kranitz briefly inquired of Plaintiff how much weight she was required

to lift as a ticket agent. (Tr. at 52.) Plaintiff responded that she had to

lift 50 pounds, as she was required to lift checked luggage. (Id.)

justifiably reached a different result. Cage v. Comm’r, 692

F.3d 118, 122 (2d Cir. 2012). Rather, “‘[a] district court may

set aside the Commissioner’s determination that a claimant is

not disabled only if the factual findings are not supported by

‘substantial evidence’ or if the decision is based on legal

error.’” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)

(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).

“Substantial evidence means ‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)).

If there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive . . . .”). Inquiry into legal error

requires the court to ask whether “‘the claimant has had a full

hearing under the [Commissioner’s] regulations and in accordance

with the beneficent purposes of the [Social Security] Act.’”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz

v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

Discussion

I. The Commissioner’s Five-Step Analysis of Disability Claims

A claimant must be “disabled” within the meaning of

the Act to receive disability benefits. See 42 U.S.C. §§

423(a), (d). A claimant qualifies as disabled when she is

unable to “engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than

12 months.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131–32. The

impairment, or combination of impairments, must be of “such

severity” that the claimant is unable to do her previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A).

The regulations promulgated by the Commissioner

prescribe a five-step sequential evaluation process for

determining whether a claimant meets the Act’s definition of

disability. See 20 C.F.R. § 404.1520. The Commissioner’s

process is essentially as follows:

The first step of this process requires the [Commissioner]

to determine whether the claimant is presently employed.

If the claimant is not employed, the [Commissioner] then

determines whether the claimant has a “severe impairment”

that limits [his] capacity to work. If the claimant has

such an impairment, the [Commissioner] next considers

whether the claimant has an impairment that is listed in

Appendix 1 of the regulations. When the claimant has such

an impairment, the [Commissioner] will find the claimant

disabled. However, if the claimant does not have a listed

impairment, the [Commissioner] must determine, under the

fourth step, whether the claimant possesses the [RFC] to

perform [his] past relevant work. Finally, if the claimant

is unable to perform [his] past relevant work, the

[Commissioner] determines whether the claimant is capable

of performing any other work.

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Perez v.

Chater, 77 F.3d 41, 46 (2d Cir. 1996)).

The claimant bears the burden of proof on the first

four steps, while the Social Security Administration bears the

burden on the last step. Burgess, 537 F.3d at 128 (internal

quotation marks and citations omitted). “[B]ecause a hearing on

disability benefits is a nonadversarial proceeding, [however,]

the ALJ generally has an affirmative obligation to develop the

administrative record.” Id. (internal quotation marks omitted).

“The burden falls upon the Commissioner at the fifth step of the

disability evaluation process to prove that the claimant, if

unable to perform her past relevant work [and considering her

residual functional capacity, age, education, and work

experience], is able to engage in gainful employment within the

national economy.” Sobolewski v. Apfel, 985 F. Supp. 300, 310

(E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)). If

the Commissioner finds a combination of impairments, the

Commissioner must also consider whether “the combined effect of

all of [a claimant’s] impairment[s]” establish the claimant’s

eligibility for Social Security benefits. 20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).

II. The ALJ’s Application of the Five-Step Analysis

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ made the following determinations:

At step one, the ALJ determined that Plaintiff “did

not engage in substantial gainful activity during the period

from her alleged onset date of November 10, 2014 through her

date last insured of December 31, 2016.”4 (Id. at 21.)

At step two, the ALJ determined that Plaintiff

suffered from the severe impairments of lumbar degenerative disc

disease and obesity. (Id. at 22.)

4 The ALJ noted that although Plaintiff attempted to return to her old job as

a slot ambassador for a three-month period in late 2015, she was unable to

sustain her old job and did not earn sufficient wages to constitute

substantial gainful activity. (Tr. at 21-22.)

At step three, the ALJ determined that Plaintiff did

not have an impairment, or combination of impairments, which met

or medically equaled the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, though

the ALJ considered Listing 1.04 (Disorders of the Spine). (Id.)

With respect to Plaintiff’s RFC, the ALJ determined

that Plaintiff could perform “sedentary work . . . except that

she can occasionally stoop, kneel, crouch, crawl, climb ramps or

stairs, and push or pull controls with her left lower extremity.

She cannot climb ladders, ropes or scaffolds. She requires the

opportunity to elevate her leg below waist level for 15-30

minutes at a time, 3-4 times per day.” (Id.) The ALJ accorded

limited weight to the opinions of Dr. Bregman and Dr. Hershfeld.

(Id. at 26.) The ALJ did not expressly note the weight given to

the remaining medical opinions. (See generally id. at 26-27.)

At step four, the ALJ determined that Plaintiff could

perform her past relevant work as a ticket agent “as generally

performed.” (Id. at 27.) Although the ALJ found that Plaintiff

could perform her past relevant work, he proceeded to step five

and made alternative findings. (Id. at 28.)

At step five, the ALJ noted that Plaintiff could

perform jobs available in substantial numbers in the national

economy of Information Clerk, DOT 237.687-182; Inspector, DOT

739.687-182; and Assembler, DOT 700.687-062. (Id. at 29.)

Based on the foregoing analysis, the ALJ found

Plaintiff not disabled within the meaning of the Act at any time

from November 10, 2014, the alleged onset date, through December

31, 2016, the date last insured. (Id.)

III. The ALJ’s Error in Applying the Five-Step Analysis

“[A]n ALJ should defer to ‘to the views of the

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F. App’x 71, 74 (2d Cir.

2013) (quoting Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d

Cir. 2003)).5 “However, ‘[a] treating physician’s statement that

the claimant is disabled cannot itself be determinative.’” Id.

(quoting Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)).

“Rather, ‘a treating source’s opinion on the issue(s) of the

nature and severity of [a claimant’s] impairment(s)’ will be

given ‘controlling weight’ if the opinion is ‘well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.’” Id. (quoting 20

C.F.R. § 404.1527(c)(2)).

5 The Commissioner has revised its rules to eliminate the treating physician

rule, and ALJs are now to weigh all medical evaluations, regardless of their

sources, based on how well supported they are and their consistency with the

remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c. Claims filed

before March 27, 2017, however, are still subject to the treating physician

rule, see id. § 404.1527(c)(2), and the Court accordingly applies the rule to

this case, as Plaintiff filed her claim on April 15, 2015. See, e.g.,

Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y. 2019).

“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,’ including: ‘(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 Social Security Administration’s

attention that tend to support or contradict the opinion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).

“The ALJ must then ‘comprehensively set forth his reasons for

the weight assigned to a treating physician’s opinion.’” Id.

(quoting Burgess, 537 F.3d at 129).

In this analysis, although an ALJ should generally

explain the weight given to each opinion, remand is not required

where application of the proper legal standards would lead to

the same conclusion previously reached. See Zabala v. Astrue,

595 F.3d 402, 409 (2d Cir. 2010). Failure to consider the

opinion of a treating physician “ordinarily requires remand to

the ALJ for consideration of the improperly excluded evidence,

at least where the unconsidered evidence is significantly more

favorable to the claimant than the evidence considered.” Id. at

409. “Remand is unnecessary, however, ‘[w]here application of

the correct legal standard could lead to only one conclusion.’”

Id. (quoting Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)).

For instance, in Zabala, the court found it was harmless error

to “the exclude[] evidence [was] essentially duplicative of

evidence considered by the ALJ,” as there would be no reasonable

likelihood that consideration of the unconsidered report would

change the outcome. Id. at 409-10 (noting that “[t]he

[unconsidered] report [was] largely identical to a [different]

report by the same doctor, which the ALJ did consider,” and

which set forth substantially identical findings).

Here, the ALJ noted, incorrectly, that Plaintiff

visited her “primary care” doctor, Dr. Hershfeld, on only three

occasions. (Tr. at 26-27.) Plaintiff argues that the ALJ

failed to properly evaluate the opinions of Drs. Cordiale,

Chacko, Lattuga, Mikelis, and Sveilich and did not provide any

explanation for his failure to do assign them any weight. (ECF

No. 18, Pl.’s Mot. for J. on the Pleadings, at 14-15.) The

Commissioner appears to concede that the ALJ failed to expressly

accord any weight to these doctors’ opinions, but argues that

any error was harmless as “the opinions of each of these doctors

were identical, and the ALJ properly incorporated [their]

findings into his RFC finding.” (ECF No. 20, Comm’r’s Mot. for

J. on the Pleadings, at 10.) The Commissioner’s arguments are

unavailing.

First, the Commissioner appears to argue that the ALJ

did not err because the unconsidered opinions are duplicative.

The opinions of Drs. Chacko, Cordiale, Lattuga, Mikelis, and

Svelich may be identical and duplicative of one another. None,

however, was actually weighed by the ALJ, and these opinions

remain unconsidered. To the extent the Commissioner argues the

unconsidered opinions are duplicative of opinions which the ALJ

considered but accorded little weight (e.g., the opinions of Dr.

Hershfeld or Dr. Bregman), the ALJ failed to provide any reason

for according little weight to each of the unconsidered

opinions, whatever the reason.

Second, and more substantially, the Commissioner

argues that the ALJ’s RFC determination incorporates the

limitations set forth in the unconsidered opinions, namely, that

Plaintiff refrain from any activity that exacerbates symptoms,

such as heavy lifting, carrying, or bending. (See, e.g., Tr. at

305 (Dr. Cordiale).) The Commissioner is correct that the ALJ’s

RFC determination accounts for Plaintiff’s limitations as to

heavy lifting and carrying by restricting Plaintiff to sedentary

work, which by its very requirements involve lifting no more

than 10 pounds. See 20 C.F.R. § 404.1567(a). But the ALJ’s RFC

determination does not expressly account for Plaintiff’s ability

to bend in light of medical findings that examining physicians

found limited ranges of motion, and Plaintiff’s ability to do so

is not meaningfully addressed in the ALJ’s decision.

The Commissioner, nevertheless, argues that the ALJ

incorporated the bending restriction noted by the ostensibly

unconsidered opinions by limiting Plaintiff to “occasional

stooping.” (Comm’r’s Mem. at 11.) This argument reads too much

into the ALJ’s decision. The ALJ’s RFC determination presumed

that Plaintiff could occasionally stoop, crouch, kneel, and

crawl. (See Tr. at 22.) This appears to be inconsistent with

the unconsidered opinions’ determination that Plaintiff should

“refrain from any activity that exacerbates symptoms such as . .

. bending” (see, e.g., id. at 305 (Dr. Cordiale); id. at 290

(Dr. Chacko); id. at 417 (Dr. Lattuga)), given that almost all

of the aforementioned activities would require bending. Indeed,

these opinions indicate that Plaintiff should refrain from

bending entirely, but the ALJ sought no clarification from

Plaintiff’s treating physicians as to whether occasional bending

would be permissible, or whether the bending restriction meant

that Plaintiff could never stoop.

Because the ALJ did not address Plaintiff’s ability to

bend in any meaningful way in the RFC determination itself, the

court cannot ascertain whether the ALJ: (1) assessed no such

limitations, or only some limitations; or (2) failed to assess

whether such limitations were present, and the impact on her

functioning. See SSR 96-8P, 1996 WL 374184, at *4 (“[A] failure

to first make a function-by-function assessment of the

individual’s limitations or restrictions could result in the

adjudicator overlooking some of an individual’s limitations or

restrictions.”); Welch v. Comm’r of Soc. Sec., No. 17-CV-6764

(JS), 2019 WL 4279269, at *3 (E.D.N.Y. Sept. 10, 2019). The

court cannot find that the ALJ’s RFC finding is supported by

substantial evidence. Moreover, Mr. Kranitz testified that,

given Plaintiff’s RFC, as determined by the ALJ, Plaintiff would

be unable to work at any position available in the national

economy if she could “never” stoop. (Id. at 56 (“Q. [I]f I

change . . . stooping from occasional to never, you’re saying

there’re no jobs? A. Yes, Your Honor.”).) This appears to be

in line with SSA regulations. See, e.g., SSR 96-9P, 1996 WL

374185 (“A complete inability to stoop would significantly erode

the unskilled sedentary occupational base and a finding that the

individual is disabled would usually apply . . . .” (emphasis in

original)).

Consequently, remand is warranted for further

development of the record and explanation as to why the ALJ’s

decision did not expressly account for Plaintiff’s other medical

findings, and her bending restriction, as noted by the

unconsidered opinions cited above. Cichocki v. Astrue, 729 F.3d

172, 177 (2d Cir. 2013) (“Remand may be appropriate . . . where

an ALJ fails to assess a claimant’s capacity to perform relevant

functions, despite contradictory evidence in the record, or

where other inadequacies in the ALJ’s analysis frustrate

meaningful review.”). Because the court remands the action on

the basis of the foregoing failure to consider medical opinions,

and because a proper consideration of all medical opinions will

likely influence the ALJ’s determination as to Plaintiff’s

credibility and must be considered in determining whether

Plaintiff met or equaled a listing, the court need not consider

Plaintiff’s remaining arguments regarding those issues at this

time.

Conclusion

Federal regulations explicitly authorize a court, when

reviewing decisions of the Social Security Administration, to

order further proceedings when appropriate. Remand is warranted

where “there are gaps in the administrative record or the ALJ

has applied an improper legal standard,” Rosa, 168 F.3d at 82–83

(quoting Pratts, 94 F.3d at 39) (internal quotation marks

omitted), particularly where further findings or explanation

will clarify the rationale for the ALJ’s decision, Pratts, 94

F.3d at 39. As the court finds that the ALJ erred in his

decision, and that further development and consideration of the

record, and clarification of the rationale of the ALJ’s

decision, are necessary to facilitate proper review, this case

is remanded for further proceedings in accordance with this

Memorandum and Order.

SO ORDERED.

Dated: Brooklyn, New York

April 22, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge