# Granata v. Berryhill

> District Court, E.D. New York · April 22, 2020

URL: https://www.frixlaw.com/law-library/cases/10304107

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 22, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ANNE GRANATA,
Plaintiff,

v. MEMORANDUM & ORDER

ANDREW M. SAUL, Commissioner of 18-cv-5197 (KAM)
Social Security,1
Defendant.
----------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304107. Public record. Not legal advice.