Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DANDRA BROWN,1

Plaintiff,

MEMORANDUM AND ORDER

- against - 18-CV-1994 (RRM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiff Dandra Brown brings this action against the Commissioner of the Social

Security Administration (“the Commissioner”) pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3),

seeking review of the Commissioner’s determination that he was not disabled and, therefore, not

eligible for Supplemental Security Income (“SSI”) between December 25, 2013, and November

19, 2016. Brown and the Commissioner now cross-move for judgment on the pleadings pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure. (Pl.’s Mot. (Doc. No. 14); Def.’s Mot.

(Doc. No. 16).) For the reasons set forth below, the Commissioner’s motion is denied, and

Brown’s motion is granted to the extent that it requests that this matter be remanded to the

Commissioner for further proceedings.

BACKGROUND

The following facts are drawn from the parties’ joint stipulation of facts. (Doc. No. 23.)

Brown was born on November 21, 1966. (Tr. 85.)2 He did not complete high school but

obtained a GED in 1995. (Tr. 297.) In the late 90s and early 2000’s, he held a variety of jobs,

1 Brown’s motion for judgment on the pleadings indicates that Brown’s first name is D’Andre, not Dandra. The

Court refers to plaintiff as Dandra Brown because that name appears in the complaint, (Doc. No. 1), and throughout

the Administrative Transcript, (Doc. No. 20).

2 Numbers preceded by “Tr.” denote pages in the Administrative Transcript.

including customer service, laborer, and security. (Id.) In 2006, however, he was convicted of a

crime and was incarcerated until September 2013. (Tr. 47–48, 296.) Following his release, he

worked “‘off the books,’ doing construction, cleaning buildings, and unloading trucks.” (Tr. 46–

48, 355.)

In December 2013, Brown began to experience an ache and tightness in his chest. (Tr.

304.) On December 18, 2013, he underwent a physical examination at Brooklyn Hospital Center

clinic (“BHC”), where he reported a history of hypertension and left knee pain. (Tr. 485.)

Although he was not in acute distress, he had an irregular heartbeat. (Id.)

Over the next few days, Brown experienced lightheadedness, shortness of breath, and

nausea. (Tr. 375.) On December 22, he returned to BHC and reported experiencing shortness of

breath (or dyspnea), which he attributed to a chest cold. (Tr. 385, 467–74.) Upon examination,

the doctor again detected an irregular heartbeat and recommended hospitalization. (Tr. 385.)

Brown refused to be admitted, preferring to wait until after the holidays. (Id.) However, when

he returned to BHC on December 27, he not only had an irregular heartbeat but also had

tachycardia – a condition in which the heart beats faster than normal while at rest. (Tr. 387.)

Brown was admitted Brown was admitted to Brooklyn Hospital and, over the next four

days, underwent a battery of tests. (Tr. 370–84.) He had an electrocardiogram (ECG or EKG),

which established that he had atrial fibrillation (“AFib”) with rapid ventricular rate ("RVR"),

premature ventricular contractions (“PVCs”), and nonspecific ST-wave changes (“NSSTs”). (Tr.

375.)3 He had an echocardiogram which showed mild left ventricular hypertrophy, a mildly

dilated left ventricle (“LV”), moderately impaired LV systolic function, and an ejection fraction

3 During atrial fibrillation, the heart’s two upper chambers (the atria) beat chaotically and irregularly, out of sync

with the heart's two lower chambers (the ventricles). See https:www.mayoclinic.org/diseases-conditions/atrial-

fibrillation/symptoms-causes/syc-20350624. Symptoms of AFib often include heart palpitations, shortness of

breath, and weakness. Id. The term, “nonspecific ST-wave abnormalities,” is frequently used when the clinical data

are not available to correlate with the ECG findings, as such abnormalities may be associated with a number of

conditions. Https://ecg.utah.edu/lesson/10.

(“EF”) between 35 and 40%. (Tr. 420–21.) That same test showed a mildly dilated left atrium,

and mild-to-moderate mitral and tricuspid regurgitation. (Id.) Brown also had a left heart

catheterization, which established that he had non-obstructive coronary artery disease (“CAD”)

and moderate LV dysfunction. (Tr. 371.)

Based on these tests, Brown was diagnosed with Afib, hypertension, cardiomyopathy,

and was discharged from the hospital on December 30, 2013. (Tr. 375.)5 He was prescribed

Coumadin (a/k/a Warfarin), a blood-thinner used to prevent clots. (Tr. 371, 383.)

Medical Records for 2014

On February 4, 2014, Brown returned to BHC, complaining that a persistent cough was

interrupting his sleep. (Tr. 476–79, 595–604.) He denied shortness of breath, dizziness,

weakness, or paresthesia. (Tr. 597). After an examination showed tachycardia, but otherwise

normal heart sounds, the doctor recommended another EKG. (Tr. 477, 600.) Brown refused the

test, stating that he had not taken his medications that day. (Id.) The examining physician

attributed the shortness of breath to acute bronchitis, not CAD, and prescribed prednisone (a

corticosteroid) and an antibiotic. (Tr. 601.)

On March 19, 2014, Mr. Brown had an intake assessment with internist Eddy Cadet,

M.D., at a Federal Rehabilitation Services (“FEDCAP”) WeCARE clinic, apparently in

connection with an application for Public Assistance. Brown stated that he had been working in

a warehouse until he experienced the lightheadedness, palpitations, and shortness of breath that

resulted in his hospitalization. (Tr. 448.) In response to a written question inquiring about the

4 The ejection fraction, which is usually measured only in the left ventricle, refers the percentage of blood leaving

the heart each time it contracts. An LV ejection fraction of 55 percent or higher is considered normal, an LV

ejection fraction of 50 percent or lower is considered reduced, and an LV ejection fraction between 50 and 55

percent is usually considered "borderline." Https://www.mayoclinic.org/ejection-fraction/expert-answers/faq-

2005828.

5 Cardiomyopathy is a disease of the heart muscle which makes it harder to pump blood and which can lead to heart

failure. Https://www.mayoclinic.org/diseases-conditions/cardiomyopathy/symptoms-causes/syc-20370709.

medical problems that prevented him from working, Brown wrote: “AFib, hypertension, left

knee pain, and back pain.” (Tr. 438.) He reported having previously received physical therapy

for his knee problem, (id.), and said he had difficulty walking and climbing stairs, (Tr. 443). He

claimed that he was “facing surgery in the near future,” and that he had been advised to find

employment other than heavy manual work. (Tr. 446, 448.)

Dr. Cadet performed an examination, which was normal in most respects. While Brown

got on and off the examination table easily and exhibited a normal range of motion, doctor

detected crepitation – a grating or crackling sound or sensation – in both knees. (Tr. 457.) Dr.

Cadet found that Brown was “limited” in lifting, walking, pulling, and kneeling. (Tr. 458.) The

doctor opined that since Brown had only performed heavy work, which was precluded by his

cardiac condition, “he might not be able to return to gainful work.” (Tr. 462–63.)

On April 23, 2014 in late April 2014, Brown filed an application for SSI benefits,

alleging an onset date of December 25, 2013. (Tr. 255–75.) In that application, Brown alleged

that he was disabled due to AFib with rapid ventricular response, hypertension, left knee pain,

back pain, heart disease, and obesity. (Id.)

On May 8, 2014, Brown went to BHC for a follow-up visit, at which he asked for refills

of all of his medications and to have disability questionnaires filled out. (Tr. 488–96, 605–17.)

He reported shortness of breath after walking 2 to 3 blocks, palpitations “on and off,” and

lightheadedness and nausea with exertion. (Tr. 490.) On examination, Dr. Poras Patel, an

internist, found that Brown, who had not taken his anti-hypertensive medication for a month

because he had run out, had very high blood pressure: 170/105. However, the doctor did not

detect any cardiac arrhythmia. (Tr. 493–94.) Although the musculoskeletal examination

revealed a normal range of motion and no arthralgia, joint swelling, limb pain, myalgia, or

stiffness, Dr. Patel credited Brown’s claims of back and left knee pain. (Tr. 491–94.) The

doctor’s notes reflect that Brown was not only taking blood thinners (Coumadin and aspirin) and

heart medications – Lisinopril (an ACE inhibitor) and Metoprolol (a beta-blocker) – but was also

taking Voltaren – a nonsteroidal anti-inflammatory medication (“NSAID”) prescribed for mild to

moderate pain. (Tr. 492.)

On May 19, 2014, Brown returned to BHC for a follow-up visit and saw Swapna

Katikaneni, M.D., an internist and cardiology clinic resident. (Tr. 503–16, 618–32.) He reported

having palpitations and chest tightness “on and off” and said, that for the preceding 5 months, he

had experienced shortness of breath after walking 3 blocks. (Tr. 503.) He denied experiencing

orthopnea (shortness of breath when lying flat), chest pain, or paroxysmal nocturnal dyspnea

(shortness of breath and coughing occurring at night), and denied gait disturbance, loss of

sensation, weakness, arthralgia, back pain, or joint swelling. (Tr. 505.) On examination, Dr.

Katikaneni did not detect any irregularities in Brown’s heart rate or rhythm but measured his

blood pressure at 160/100. (Id.) Brown admitted that he had not been taking his blood pressure

medication due to insurance problems. (Tr. 516.)

The next day, Brown had a transthoracic echocardiogram. (Tr. 533, 572.) That testing

revealed a severely depressed EF of 35%, a dilated left atrium, concentric LV hypertrophy, and

global hypokinesis (decreased movement). (Tr. 533.) Dr. Ronny Cohen, the cardiologist who

administered the test, assessed diastolic dysfunction grade II. (Id.) 6

Sometime in May 2014, Dr. Patel completed a “Physical Medical Source Statement.” In

that document, Dr. Patel stated that he had been treating Brown for 6 months and listed Brown’s

diagnoses as atrial fibrillation, cardiomyopathy, and hypertension. (Tr. 529.) He listed Brown’s

symptoms as: shortness of breath on exertion, palpitation, nausea, dizziness, back pain, and left

6 The New York Heart Association (“NYHA”) functional classification system helps to categorize patients based on

their symptoms of heart failure. Class II denotes mild symptoms and slight limitations during normal activity such

as ambulating two blocks or two flights of stairs. Https://manual.jointcommission.org/releases/TJC2017B2/

DataElem0439.hmtl.

knee pain. (Id.) He characterized the knee pain as “sharp, 7/10 pain scale, exacerbated by

walking,” and characterized the back pain as “sharp, exacerbated by prolonged standing/sitting.”

(Id.) The doctor opined that Brown would be as unable to sit and stand/walk for more than 2

hours during each 8-hour workday and would be able to walk only 3 city blocks without rest or

severe pain. (Id.) In addition, Dr. Patel opined that Brown was unable to lift or carry any

weight, twist, stoop (bend), crouch/squat, climb stairs, or climb ladders. (Tr. 531.) According to

the doctor, Brown’s symptoms would interfere with attention and concentration to such degree

that he would be off task 25% or more of the workday. (Tr. 532). He would also likely be

absent from work more than 4 days per month as a result of his impairments or treatment. (Id.)

Dr. Patel stated that Brown’s impairments had lasted or were expected to last at least 12 months,

(Tr. 529), and he provided the May 20, 2014, echocardiogram to support his assessments, (Tr.

533).

On May 21, 2014, Brown visited the Woodhull Medical and Mental Health Center

(“WMMHC”). (Tr. 573–75.) Brown saw Sudhir Shah, M.D., an internist who was supervised

by an attending physician, Victor Navarro, M.D., a cardiologist. (Tr. 573.) Dr. Shah noted that

Brown had been seen in January 2014 but had not returned for follow-up. (Tr. 574.)

Brown’s complaints were essentially the same as those he made to Dr. Katikaneni two

days earlier. He said he had experienced palpitations daily, chest tightness the day before, and

could walk only 3 blocks before experiencing shortness of breath. (Id.) Dr. Shah administered

an electrocardiogram which demonstrated multiple atrial premature complexes, SV complexes

with short R-R intervals, and probable left ventricular hypertrophy. (Tr. 571.) The doctor

assessed Brown’s cardiac symptoms as “NYHA class II to III, more like II.” (Tr. 574.)8

On May 21, 2014, Dr. Navarro completed two questionnaires. First, in a “Wellness Plan

Report” required for the continuation of public assistance benefits (Tr. 534–35), Dr. Navarro

diagnosed Brown with dilated cardiomyopathy, heart failure, and AFib. (Tr. 534.) Although the

doctor opined that Brown was “clinically improved,” he opined that Brown was unable to work

for at least 12 months. (Tr. 534–35, 540–41.) Second, Dr. Navarro completed a “Cardiac

Medical Source Statement.” (Tr. 536–39.) In that document, Dr. Navarro stated that he had

been treating Brown every month for three months and that Brown was NYHA Class II-III with

an “unknown” prognosis. (Tr. 536.) The doctor listed Brown’s symptoms as chest pain;

weakness; arrhythmia; exercise intolerance; chronic fatigue; and palpitations. (Tr. 536.) Dr.

Navarro opined that stress increased Brown’s symptoms and that he was incapable of tolerating

even “low stress” work. (Tr. 537.) The doctor further opined that Brown could only walk 3 city

blocks without rest or severe pain, could sit or stand/walk less than 2 hours each in an 8-hour

workday, could never lift or carry any weight, and could rarely twist, stoop, bend, crouch/squat,

or climb stairs or ladders. (Tr. 537–38.) In addition, Dr. Navarro estimated that Brown would be

“off task” 25% of the workday and would absent more than four times per month. (Tr. 537,

539.)

On May 21, 2014, Dr. Olumide Osoba completed a Treating Physician’s Wellness Plan

Report for the New York City Human Resources Administration’s (“HRA”) public assistance

program. (Tr. 464–65.) Dr. Osoba listed Brown’s “Current Diagnoses” as: atrial fibrillation

7 These terms refer to various heart irregularities.

8 Class III denotes a marked limitation in activity due to symptoms exertion such as ambulating one block or one

flight of stairs, but no symptoms at rest. Https://manual.jointcommission.org/releases/TJC2017B2/

DataElem0439.html.

with onset of December 2013, cardiomyopathy with EF 35-40% with onset of December 2013,

and hypertension with onset in 2012. (Tr. 464.) Although Dr. Osoba opined that the

impairments had been resolved or stabilized, the doctor opined that Brown would be unable to

work for at least 12 months. (Tr. 465.)

On July 3, 2014, Brown returned to BHC for a hypertension follow-up. (Tr. 633-41.) He

said he had not taken his medication for two days and was continuing to experience intermittent

chest pains and palpitations on a daily basis. (Tr. 636.) He also reported experiencing shortness

of breath when climbing one flight of stairs and walking two blocks, and claimed that, for the

previous 6 months, he had been coughing for an hour a night, producing mainly phlegm. (Tr.

636.) Examination showed that Brown had very high blood pressure – 183/102 – and an

irregular heart rhythm. (Tr. 633.) Although the range of motion was normal in both knees, and

there was no swelling or other abnormalities, the doctor prescribed Voltaren. (Tr. 633, 639.)

On July 21, 2014, Brown returned to WMMHC. (Tr. 576–77.) The medical notes for

that date indicate that he had previously been referred for an automated implantable cardioverter

defibrillator, but he had not followed up. (Tr. 576.) Brown denied chest pain or shortness of

breath and said he could walk four blocks. (Id.) On examination, Brown’s blood pressure was

139/75, and no cardiac arrhythmia or heart murmur was detected. (Id.) There was also no

swelling in his legs. (Id.) Nonetheless, Brown was directed to return in two weeks. (Tr. 577.)

Brown returned to WMMHC on August 4, 2014, and was examined by Dr. Berilonson S.

Osiro, M.D., who was supervised by Dr. Abdul Ansari. (Tr. 578–79.) According to Dr. Osiro’s

notes, Brown was “asymptomatic,” with a regular cardiac rhythm and no murmurs. (Tr. 578.)

Brown complained that Lisinopril was causing him to cough, so Dr. Osiro substituted Losartan,

another ACE inhibitor. (Tr. 579.)

The Consultative Examination

On August 8, 2014, Brown went to see Ram Ravi, M.D., an internist, for a consultative

examination ordered by the Social Security Administration (“SSA”). (Tr. 545–48.) Brown told

Dr. Ravi that he was currently asymptomatic and stable on his medications, and denied having

chest pain, shortness of breath, dizziness, or lightheadedness. (Tr. 545–46.) He said his

cardiologist had limited him from only bending, lifting, squatting, and other strenuous activities,

but he also reported a ten-year history of low back pain and a four-year history of left knee pain.

(Tr. 545.)

The examination proved largely normal, though Brown declined to perform heel and toe

walking or squatting “due to his cardiac condition.” (Tr. 547.) Lumbar X-rays and left knee X-

rays showed some degree of degenerative changes. (Tr. 550–51.) Based on the history provided

by Brown, Dr. Ravi diagnosed him with congestive heart failure, AFib, hypertension, low back

pain, and left knee pain. (Tr. 548.) Dr. Ravi not only opined that Brown’s prognosis was

guarded, but stated:

Based upon the examination, the claimant has severe limitations to

all activities due to his cardiac condition. He will require cardiac

clearance. The claimant should avoid activities requiring mild or

greater exertion due to his cardiac condition. (Tr. 548.)

Dr. Ravi also required Brown to sign a legal waiver indicating that he had been notified of his

elevated blood pressure and acknowledging Dr. Ravi’s recommendation that he see his

cardiologist within 24 hours or present to the emergency department if his symptoms worsened.

(Tr. 552.)

The State Examiner’s Decision

On August 14, 2014, the State Disability Examiner denied Brown’s application for SSI,

finding that he was not disabled. (Tr. 93.) Although the SSA’s own Consultative Examiner had

just opined that Brown had severe limitations as to all activities and the treating physicians

uniformly opined that Brown could not lift or carry any weight and could not sit for more than 2

hours in an 8-hour workday, the examiner found that Brown could occasionally lift and carry 10

pounds, frequently lift and carry less than 10 pounds, and could sit for 6 hours in an 8-hour

workday. (Tr. 90–91.) Based on these findings, the examiner concluded that Brown was

capable of sedentary work. (Tr. 92.) Brown requested an ALJ hearing. (Tr. 103-06.)

Medical Records for 2015

Brown went to the emergency room twice in early 2015 with chest-related complaints.

On February 7, 2015, he presented at the BHC emergency department with complaints of “off

and on” chest tightness and shortness of breath since that morning. (Tr. 644–60.) His blood

pressure was 184/92, and he was in mild acute distress. (Tr. 649–50.) However, a cardiac

examination revealed a regular heart rate and rhythm and no murmur, (Tr. 650), his EKG and

chest x-rays were unremarkable, and his cardiac enzymes were negative, (Tr. 654). The

emergency room staff recommended that he be hospitalized for observation, but Brown declined

and left against medical advice. (Tr. 653–54.)

On April 19, 2015, Brown returned to the same emergency department with complaints

of “chest tightness” and right chest pain of three days duration that started at rest. (Tr. 666.) On

examination, a palpable mass in the right breast, tender to the touch, was noted. (Tr. 665–66.)

Brown reported having moderate intermittent pain, but denied dizziness, headache, palpitations,

or shortness of breath. (Tr. 665–66, 674.) Brown’s blood pressure was 178/76, but a cardiac

examination revealed only normal heart sounds, rate, and rhythm, with no murmurs or gallop.

(Tr. 663, 668.) After an EKG and chest x-ray proved negative, and after his chest pain improved

with Motrin, the emergency room staff concluded that the chest pain was likely caused by

inflammation of the pleura – the membranes surrounding the lungs. (Tr. 669, 672–73.)

On August 25, 2015, Brown returned to BHC clinic in order to have some forms

completed. (Tr. 684–94.) Brown reported that he still had intermittent chest pain, not related to

exertion or relieved by rest, and shortness of breath when walking 2 blocks. (Tr. 684.) He

admitted he was still not compliant with medications. (Id.) On examination, he had blood

pressure of 139/79, and an irregular heart rhythm. (Tr. 684, 686.) Although he complained of

left knee symptoms, an examination of the knees did not reveal any abnormal findings. (Tr.

686.)

Brown was referred to a cardiologist, Dr. Cesar Ayala-Rodriguez, for an evaluation

regarding systolic heart failure, and visited him on August 26, 2015. (Tr. 588.) Brown

complained that he was experiencing shortness of breath after walking 2 to 3 blocks, with

lightheadedness and palpitations. (Id.) Dr. Ayala-Rodriguez ordered an EKG which showed

mild right and left atrial enlargement; moderate LV hypertrophy; an EF of 55-60%; mild mitral

regurgitation; mild-to-moderate tricuspid regurgitation; and mild pulmonary hypertension. (Tr.

556, 755.) On physical examination, Brown’s blood pressure was 144/90, but no cardiac

abnormalities were detected aside from “a systolic ejection murmur.” (Tr. 589.) Dr. Ayala-

Rodriguez diagnosed Brown with non-ischemic cardiomyopathy, (recovered), NYHA Class II

symptoms; mild non-obstructive CAD; and AFib. (Tr. 590.) The doctor proposed conducting

further tests using a halter monitor, but Brown declined. (Id.)

On the day of his examination, Dr. Ayala-Rodriguez completed a Cardiac Impairment

Questionnaire. (Tr. 558–63.) The doctor reported the same diagnosis set forth in the preceding

paragraph and identified clinical findings that supported his diagnoses: chest pain, shortness of

breath, fatigue, weakness, palpitations, cough, nausea, and dizziness. (Tr. 558–59.) Dr. Ayala-

Rodriguez opined that in an eight-hour workday, Brown could sit and stand/walk for less than

one hour each; rarely/occasionally lift five pounds; and never carry any weight. (Tr. 560.) In

support of his opinion, Dr. Ayala-Rodriguez cited to various objective tests, including the

December 2013 catheterization, the December 2013 echocardiogram, and the 2015

echocardiogram. (Tr. 558.)

The doctor opined that Brown’s symptoms would likely increase in a competitive work

environment. (Tr. 561.) He believed that pain, fatigue, or other symptoms would occasionally

interfere with Brown’s concentration, and that he would need to take breaks every 2 hours. (Tr.

561–62). The doctor estimated that Brown would likely be absent more than 3 times per month

as a result of his impairments or treatment, and stated that his opinions applied as far back as

December 27, 2013. (Tr. 562.)

On September 3, 2015, Brown returned to BHC after blood testing showed a sub-

therapeutic international normalized ratio (“INR”) – i.e., that Brown was not taking enough

blood-thinners to prevent a clot. (Tr. 690–94.) Brown admitted that he was noncompliant with

his anticoagulant and stated that he had chronic exertional chest pain and occasional palpitations.

(Tr. 690.) However, he denied currently having palpitations, chest pain, or shortness of breath,

and he denied having any musculoskeletal pain, swelling, or stiffness. (Tr. 690–91.) On

examination, his blood pressure was 154/79, and he had regular cardiac rate and rhythm. (Tr.

692.) The BHC doctor discussed the importance of medication compliance. (Tr. 692–93.)

Medical Records for 2016

Brown was still non-compliant when he returned to BHC on March 4, 2016, telling Dr.

Tatiana Bernde C. Aime Noel, M.D. – a resident supervised by Dr. Osoba – that he had stopped

taking his heart and blood pressure medications due to insurance issues that caused him to be

unable to afford the medication. (Tr. 697–99.) However, he reported no chest pain, dyspnea, or

palpitations. (Tr. 697.) Although his blood pressure was high – 171/91 – his heart rate was

regular and there were no murmurs detected. (Tr. 697–98.)

Brown returned to BHC thrice in early April 2016. On April 7, 2016, he denied chest

pain, palpitations, or shortness of breath, (Tr. 704), but claimed to have back and knee pain that

made it difficult to walk. (Tr. 704, 706.) His blood pressure was 159/89, and he had an irregular

heart rhythm. (Tr. 706.) He claimed to be taking his medications but admitted that he had not

been able to go to the Coumadin clinic because of insurance issues. (Tr. 704.) The doctor

advised him to participate in the Coumadin clinic and prescribed Tramadol – a narcotic used to

relieve moderate to moderately severe pain – for his back. (Tr. 706–07.)

The next day, Brown was seen at the Pharmacotherapy Clinic for an anti-coagulation

counseling and therapy. (Tr. 709–10.) The pharmacist noted that Brown had last taken Warfarin

seven months earlier. (Id.) Although Brown was assessed to be at low risk of a stroke based on

his CHA₂DS₂-VASc score – a score which calculates the stroke risk for patients with AFib – he

was re-started on the blood-thinning medication. (Tr. 710–11.)

On April 21, 2016, Brown returned to BHC to have a disability form completed and was

examined by Dr. Michael Grillo, another resident supervised by Dr. Osoba. (Tr. 713–22.) He

reported that he was not taking Coumadin because a “prescription was never given,” but was

taking Tramadol to control his back pain. (Tr. 715, 717–18.) He specifically denied chest pains,

palpitations, vomiting, dizziness, weakness, or shortness of breath, but he reported difficulty

walking and climbing up and down stairs. (Tr. 715.) His blood pressure was 156/92 but the

cardiac examination was unremarkable. (Tr. 713, 716.) There was crepitus in the left knee and

mild tenderness in the lower back, but his muscle strength and sensation were intact. (Id.)

That same day, Dr. Osoba completed a Disability Impairment Questionnaire. (Tr. 565–

69.) Dr. Osoba diagnosed Brown with AFib, uncontrolled hypertension, congestive heart failure,

and osteoarthritis. (Tr. 564.) In support of these diagnoses, Dr. Osoba cited the 2014

echocardiogram finding an EF of 35-40%. (Id.) The doctor described Brown’s primary

symptoms as “palpitations, shortness of breath, fatigue, lower back pain,” but noted that he also

had left knee and lower back pain brought on by lifting heavy objects. (Tr. 565–66.) With

respect to limitations, Dr. Osoba opined that Brown could not sit for more than 3 hours or

stand/walk for more than 1 hour in an 8-hour workday. (Tr. 567.) The doctor further opined that

Brown needed to get up from a seated position and move around every hour. (Tr. 567.)

According to the doctor, Brown could occasionally lift up to 20 pounds, occasionally carry up to

ten pounds, and frequently lift up to five pounds. (Id.) Dr. Osoba thought Brown’s symptoms

would likely increase in a competitive work environment and explained that stress could trigger

AFib. (Tr. 568.) In addition, the doctor opined that Brown’s symptoms could occasionally

interfere with his attention and concentration, that he would need unscheduled breaks of 1 or 2

hours to rest during the day, and that Brown was likely to be absent from work 2 to 3 times per

month as a result of his impairments or treatment. (Tr. 568–69.)

On May 4, 2016, Brown had an appointment with Dr. Ayala-Rodriguez, at which he

reported episodic chest pain, shortness of breath after walking less than 2 blocks, and almost-

daily palpitations lasting a few seconds at a time. (Tr. 586–87, 741–42, 749–50.) He claimed

that he was compliant with his medications, (Tr. 586), a claim that was partially substantiated by

records indicating that he had visited BHC to refill his Coumadin prescription two days earlier.

(Tr. 720–22.) On examination, Dr. Ayala-Rodriguez detected a systolic ejection murmur, though

Brown had a regular cardiac rhythm with no other abnormal sounds. (Tr. 587.) Dr. Ayala-

Rodriguez again assessed Brown with NYHA Class II symptoms and stated that he was able to

exercise. (Id.) Brown again refused a halter monitor. (Id.)

ALJ Solomon’s Decision

On February 9, 2017, ALJ Solomon issued a partially favorable decision, finding that

Brown was not disabled from December 25, 2013, to November 19, 2016, but was disabled from

November 20, 2016 through the date of the ALJs decision. (Tr. 19.) ALJ Solomon’s decision

followed the familiar five-step process for making disability determinations, which the Second

Circuit has described as follows:

First, the Commissioner considers whether the claimant is

currently engaged in substantial gainful activity. If he is not, the

Commissioner next considers whether the claimant has a “severe

impairment” which significantly limits his physical or mental

ability to do basic work activities. If the claimant suffers such an

impairment, the third inquiry is whether, based solely on medical

evidence, the claimant has an impairment which is listed in

Appendix 1 of the regulations. If the claimant has such an

impairment, the Commissioner will consider him [per se]

disabled.... Assuming the claimant does not have a listed

impairment, the fourth inquiry is whether, despite the claimant’s

severe impairment, he has the residual functional capacity to

perform his past work. Finally, if the claimant is unable to perform

his past work, the Commissioner then determines whether there is

other work which the claimant could perform.

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting DeChirico v. Callahan, 134 F.3d

1177, 1179–80 (2d Cir. 1998)).

At step one, the ALJ determined that Brown had not engaged in substantial gainful

activity since the alleged onset date of December 25, 2013. (Tr. 20.) At step two, ALJ Solomon

found that Brown had several severe impairments as of the alleged onset date: non-obstructive

CAD, atrial fibrillation, and a left knee impairment. (Id.) However, the ALJ found that Brown

did not have an impairment or combination of impairments that met or medically equaled the

severity of one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 20.)

At step four of the analysis, the ALJ concluded that Brown had the residual functional capacity

“RFC” to perform the full range of sedentary work as defined in 20 C.F.R. § 416.967(a). In

reaching this conclusion, the ALJ first discounted Brown’s testimony that he was unable to sit or

stand for an hour or more and experienced such shortness of breath while walking that he had to

stop every 10 to 15 minutes. (Tr. 22.) He found that Brown’s statements concerning the

intensity, persistence, and limiting effects of his symptoms were “not fully supported” by the

medical evidence. (Id.) However, in reviewing the medical evidence that allegedly supported

his opinion, the ALJ discounted the medical opinions of each and every physician who had

actually treated Brown – all of whom opined that Brown was disabled.

First, the ALJ acknowledged that Dr. Cadet, the FEDCAP internist who examined Brown

in March 2014, found that Brown had “exertional limitations with lifting and walking.” (Tr. 22.)

However, after noting that Dr. Cadet had not quantified the limitations, the ALJ gave “little

weight” to the doctor’s “conclusory” opinion because it was based on a one-time examination

and did not state that Brown would have such limitations for 12 months. (Id.)

Second, the ALJ gave “only partial weight” to Dr. Patel’s physical medical source

statement dated May 8, 2014, in which the doctor opined that Brown could not lift and carry any

weight and could sit, stand, and walk for less than 2 hours in an 8-hour workday due to his

impairments. (Tr. 23.) Although this opinion was consistent with Dr. Cadet’s, the ALJ found it

“significantly disproportionate to any actual physical findings, particularly as there is no

condition for which the claimant is being treated that would significantly limit his ability to sit.”

(Id.) The ALJ also noted that Dr. Patel had only known the claimant for the six months “post

cardio surgery, so there is [a] question of duration.” (Id.)

Third, the ALJ gave “only little weight” to Dr. Navarro’s May 21, 2014, Wellness Plan

Report, in which the doctor opined that Brown was totally disabled for 12 months. (Id.) The

ALJ characterized the report as “conclusory,” noting that “functional limitations were not

stated,” and were unsupported by the treatment notes which did not indicate “that the claimant

was totally disabled, at least until the established onset date.” (Id.)

Fourth, the ALJ gave “only partial weight” to the opinion of Dr. Ravi, the consultative

examiner who found that Brown had “severe limitations as to all activities due to his cardiac

condition.” (Tr. 23–24.) The ALJ noted that Dr. Ravi’s opinion was “based on a one-time

examination,” which was itself normal. (Tr. 24.) Since the doctor did not identify “specific

limitations,” the ALJ found there was “no credible basis for finding the claimant would be

incapable of performing sedentary work.” (Id.)

Fifth, the ALJ gave “little weight” to the Cardiac Impairment Questionnaire completed

by Dr. Ayala-Rodriguez on August 26, 2015, which opined that Brown could not lift and carry

any weight and could not sit, stand, and/or walk for even an hour in an 8-hour workday. (Tr. 24.)

The ALJ stated that Dr. Ayala-Rodriguez “was not a long term treating physician at the time of

this evaluation,” and that his opinion “was grossly disproportionate to any condition.” (Id.) In

support of the latter proposition, the ALJ stated: “Limits as to sitting less than one hour based on

his condition are so totally unsupported by any credible evidence that the entire opinion is

specious.” (Id.)

Sixth, ALJ Solomon discounted Dr. Osoba’s disability impairment questionnaire dated

April 21, 2016. The ALJ noted that Dr. Osoba had diagnosed Brown with, among other things,

“congestive heart failure,” even though there was “no diagnosis of chronic heart failure by a

cardiologist” and Dr. Osoba was “not a specialist.” (Id.) ALJ Solomon did not expressly state

how much weight he would give Dr. Osoba’s opinion, but he stated: “The limitations stated by

Dr. Osoba are grossly disproportionate to any clinical findings and objective diagnostic testing.”

(Id.)

After discounting the opinions of each and every physician named in the record, the ALJ

made his own assessment of the medical evidence, finding that it failed “to support the claimant's

assertion of total disability” during the period prior to November 20, 2016. (Id.) ALJ Solomon

found that Brown retained “the residual functional capacity to perform sedentary work, which

requires carrying objects weighing up to 10 pounds on an occasional basis, standing and walking

up to two hours in an eight-hour workday, and sitting up to six hours in an eight-hour workday.”

(Tr. 25.) The ALJ based his assessment “on the findings from the physical examinations and the

diagnostic tests as well as the treatment notes,” which he found to contain “no credible evidence

of ability to perform less than sedentary work.” (Id.)

With respect to step five of the five-step analysis, the ALJ found that Brown had “no past

relevant work.” (Id.) He also found that prior to November 20, 2016, there were jobs in

significant numbers in the national economy that Brown could have performed, given his age,

education, work experience, and RFC. (Id.) However, on November 20, 2016, Brown’s age

category changed to “an individual closely approaching advanced age.” (Id.) Because of that

change, Medical-vocational Rule 201.12 dictated a finding of disabled for the period after

November 20, 2016. (Id.)

The Instant Action

On February 14, 2018, the Appeals Council denied Brown’s request for review, rendering

the ALJ’s decision the final determination of the Commissioner. (Tr. 1–6.) On April 3, 2018,

Brown commenced this action, seeking review of the decision of the Commissioner of Social

Security pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g).

Brown and the Commissioner now cross-move for judgment on the pleadings pursuant to Rule

12(c) of the Federal Rules of Civil Procedure. In his Memorandum of Law in Support of

Brown’s Motion for Judgment on the Pleadings (“Pl. Memo”), Brown principally argues that the

ALJ failed to properly evaluate the opinion evidence, resulting in an RFC determination that is

not based on substantial evidence. (Pl. Memo (Doc. No. 15) at 12–21.) Specifically, Brown

argues 1) that the Commissioner violated the “treating physician rule” by failing to give

controlling weight to the opinions of Drs. Patel, Navarro, and Osoba, and that the ALJ

substituted his own assessment of the medical evidence for that of the doctors. (Id.) The

Commissioner controverts those arguments in his Memorandum of Law in Support of the

Defendant’s Cross-Motion for Judgment on the Pleadings (“Def. Memo”), arguing that the ALJ

properly disregarded the doctor’s opinions and correctly determined that Brown has the residual

functional capacity to perform sedentary work. (Def. Memo (Doc. No. 17) at 20–27.)

STANDARD OF REVIEW

A final determination of the Commissioner of Social Security upon an application for SSI

benefits is subject to judicial review as provided in 42 U.S.C. § 405(g). See 42 U.S.C. §

1383(c)(3). A court’s review under 42 U.S.C. § 405(g) of a final decision by the Commissioner

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

in the record and were based on a correct legal standard. Lamay v. Comm’r of Soc. Sec., 562

F.3d 503, 507 (2d Cir. 2009); see Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The

district court has the “power to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or

without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

“Substantial evidence” connotes “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971); see also Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

“In determining whether substantial evidence supports a finding of the Secretary [now,

Commissioner], the court must not look at the supporting evidence in isolation, but must view it

in light of the other evidence in the record that might detract from such a finding, including any

contradictory evidence and evidence from which conflicting inferences may be drawn.” Rivera

v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991). The “substantial evidence” test applies

only to the Commissioner’s factual determinations. Similar deference is not accorded to the

Commissioner’s legal conclusions or to the agency’s compliance with applicable procedures

mandated by statute or regulation. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)

“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles,

application of the substantial evidence standard to uphold a finding of no disability creates an

unacceptable risk that a claimant will be deprived of the right to have her disability

determination made according to the correct legal principles.” Johnson, 817 F.2d at 986.

However, where application of the correct legal principles to the record could lead only to the

same conclusion reached by the Commissioner, there is no need to remand for agency

reconsideration. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010).

Eligibility for SSI

In order to be eligible for SSI, an individual must be blind, aged or disabled and fall

within certain income and resource limits. See 42 U.S.C. §§ 1381, 1382(a). An adult individual

is “considered to be disabled ... if he 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 twelve months.” 42 U.S.C. §§ 1382c(a)(3)(A). The physical or mental impairment or

impairments must be “of such severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy . . . .” 42 U.S.C. §§

1382c(a)(3)(B). The term, “work which exists in the national economy,” is defined to mean

“work which exists in significant numbers either in the region where such individual lives or in

several regions of the country.” Id.

In deciding whether a claimant is disabled, the Commissioner is required by the Social

Security regulations to use the five-step framework set forth in 20 C.F.R. § 416.920(a)(4) and

described above. See p. 15, ante. “The claimant has the general burden of proving that he or she

has a disability within the meaning of the Act, see, e.g., Draegert v. Barnhart, 311 F.3d at 472,

and ‘bears the burden of proving his or her case at steps one through four’ of the sequential five-

step framework…. Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004).” Burgess v. Astrue, 537

F.3d 117, 128 (2d Cir. 2008). Nonetheless, “[b]ecause a hearing on disability benefits is a

nonadversarial proceeding, the ALJ generally has an affirmative obligation to develop the

administrative record.” Id. (quoting Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999)).

The Treating Physician Rule

“The SSA recognizes a rule of deference to the medical views of a physician who is

engaged in the primary treatment of a claimant.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.

2015). Under this “treating physician rule,” the “opinion of a claimant’s treating physician as to

the nature and severity of the impairment is given ‘controlling weight’ so long as it ‘is well-

supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record.’” Burgess, 537 F.3d at 128

(quoting 20 C.F.R. § 404.1527(d)(2)). “‘[M]edically acceptable clinical and laboratory

diagnostic techniques’ include consideration of ‘[a] patient’s report of complaints, or history, [a]s

an essential diagnostic tool.’” Id. (quoting Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d

Cir. 2003)).

A physician does not qualify as a treating physician merely by virtue of having treated

the claimant. “[T]he opinion of a treating physician is given extra weight because of his unique

position resulting from the ‘continuity of treatment he provides and the doctor/patient

relationship he develops.’” Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (quoting

Monguer v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir. 1983)) (emphasis added in Monguer). A

physician who only examines a claimant “once or twice” may not develop a physician/patient

relationship and, therefore, may not qualify as a “treating physician” for purposes of the rule. Id.

Conversely, the Second Circuit has recognized that it is possible for a physician to develop a

treating physician relationship over a period of months. See, e.g., Snell v. Apfel, 177 F.3d 128,

130 (2d Cir. 1999) (doctor who saw claimant three times over a six-month period was a treating

physician).

“A treating physician’s statement that the claimant is disabled cannot itself be

determinative.” Green-Younger, 335 F.3d at 106. In addition, “[t]here are … circumstances

when it is appropriate for an ALJ not to give controlling weight to a treating physician's

opinion.” Greek, 802 F.3d at 375. “[T]he opinion of the treating physician is not afforded

controlling weight where ... the treating physician issued opinions that are not consistent with

other substantial evidence in the record, such as the opinions of other medical experts.”

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (citing Veino, 312 F.3d at 588). When a

treating physician’s opinion is not given controlling weight, however, “SSA regulations require

the ALJ to consider several factors in determining how much weight the opinion should receive.”

Greek, 802 F.3d at 375 (citing 20 C.F.R. § 404.1527(c)(2)(i), (2)(ii), (3)–(6)). Specifically, “to

override the opinion of the treating physician, … the ALJ must explicitly consider, inter alia: (1)

the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence

supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence;

and, (4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)

(per curiam). “After considering the above factors, the ALJ must ‘comprehensively set forth

[his] reasons for the weight assigned to a treating physician’s opinion.’” Burgess, 537 F.3d at

129 (alteration in original) (quoting Halloran, 362 F.3d at 33). The Second Circuit has stated that

it will “not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the

weight given to a treating physician’s opinion and . . . will continue remanding when . . .

encounter[ing] opinions from ALJ’s that do not comprehensively set forth reasons for the weight

assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33.

“Genuine conflicts in the medical evidence are for the Commissioner to resolve.” Veino,

312 F.3d at 588. However, [a]n ALJ must both “develop the proof” and “carefully weigh it”

before deciding which medical expert to credit. Donato v. Sec’y of Dep’t of Health & Human

Servs., 721 F.2d 414, 419 (2d Cir. 1983). “[A]n ALJ cannot reject a treating physician’s

diagnosis without first attempting to fill any clear gaps in the administrative record.” Rosa v.

Callahan, 168 F.3d 72, 79 (2d Cir. 1999).

Furthermore, while an ALJ is “free to resolve issues of credibility as to lay testimony or

to choose between properly submitted medical opinions,” McBrayer v. Sec’y of Health & Human

Servs., 712 F.2d 795, 799 (2d Cir. 1983), an ALJ, despite having “considerable and constant

exposure to medical evidence,” remains a layperson. Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.

2000). As such, an ALJ is not “permitted to substitute his own expertise or view of the medical

proof for the treating physician’s opinion.” Burgess, 537 F.3d at 131 (quoting Shaw v. Chater,

221 F.3d 126, 134 (2d Cir. 2000)). Similarly, an ALJ cannot “set his own expertise against that

of a physician who [submitted an opinion to or] testified before him.” Balsamo v. Chater, 142

F.3d 75, 81 (2d Cir. 1998) (quoting McBrayer, 712 F.2d at 799) (brackets added in Balsamo).

The Defects in the ALJ’s Decision

In this case, ALJ Solomon decision was defective in two respects. First, he violated the

treating physician rule. Second, he substituted his own expertise or view of the medical proof for

that of the doctors.

The ALJ Violated the Treating Physician Rule

In this case, ALJ Solomon violated the treating physician rule by failing to give

controlling weight to the opinions of Drs. Patel, Navarro, and Osoba, all of whom opined that

Brown had functional limitations which would preclude even sedentary work. (Tr. 529–33, 536–

39, and 565–70). The ALJ failed to explicitly consider the factors set forth in Selian and failed

to provide “good reasons” for giving the treating physicians’ opinions little or partial weight.

To begin, the ALJ gave “only partial weight” to Dr. Patel’s physical medical source

statement dated May 8, 2014, in which the doctor opined that Brown could not lift and carry any

weight and could sit, stand, and walk for less than two hours in an 8-hour workday due to his

impairments. (Tr. 23.) The ALJ gave only two reasons for doing so. First, he implied that Dr.

Patel did not qualify as a treating physician because had only known Brown for the six months

“post cardio surgery.” (Id.) Second, the ALJ found Dr. Patel’s opinions “significantly

disproportionate to any actual physical findings, particularly as there is no condition for which

the claimant is being treated that would significantly limit his ability to sit.” (Id.)

Neither was a good reason. The Second Circuit has held that it is possible for a physician

to develop a treating physician relationship over six months. See Snell, 177 F.3d at 130, 133.

And Dr. Patel’s opinion was supported by objective evidence. The doctor not only provided the

May 20, 2014, echocardiogram to support his cardiac assessments, (Tr. 533), but described

Brown’s other symptoms in considerable detail. Notably, he described Brown’s back pain as

“sharp, exacerbated by prolonged standing/sitting,” (Tr. 529) – a description which could only

have been drawn from taking Brown’s medical history. This history was “an essential diagnostic

tool” and a “medically acceptable clinical and laboratory diagnostic technique” sufficient to

support the doctor’s finding that Brown could only sit for 2 hours in an 8-hour workday. See

Burgess, 537 F.3d at 128; Green-Younger, 335 F.3d at 107. Moreover, Dr. Patel’s opinion that

Brown had severe limitations in his ability to sit for a prolonged period was consistent with the

views of every other doctor who examined Brown.

In determining that Dr. Navarro’s opinion deserved “only little weight," the ALJ

considered only the Wellness Plan Report, and not the doctor’s much more extensive “Cardiac

Medical Source Statement.” Both documents were completed on the same day – May 21, 2014 –

but they were addressed to different audiences. The Wellness Plan Report, which was required

to determine Brown’s eligibility for public assistance, was indeed conclusory; it stated only that

Brown would be totally disabled for 12 months and did not provide details regarding his

functional limitations. Those details were included in the “Cardiac Medical Source Statement,”

which was geared towards the SSA’s requirements. (Tr. 536–39.) In that document, Dr.

Navarro, a cardiologist, stated that Brown was NYHA Class II-III with an “unknown” prognosis.

(Tr. 536.) The doctor listed Brown’s symptoms as chest pain; weakness; arrhythmia; exercise

intolerance; chronic fatigue; and palpitations. (Id.) Dr. Navarro opined that stress increased

Brown’s symptoms, making him incapable of tolerating even “low stress” work. (Tr. 537.) The

doctor further opined that Brown could only walk 3 city blocks without rest or severe pain, could

sit or stand/walk less than two hours each in an 8-hour workday, could never lift or carry any

weight, and could rarely twist, stoop, bend, crouch/squat, or climb stairs or ladders. (Tr. 537–

38.) In addition, Dr. Navarro estimated that Brown would be “off task” 25% of the workday and

would absent more than four times per month. (Tr. 537, 539.) These functional limitations,

which were supported by the doctor’s observations in treating Brown monthly, amply supported

the view that Brown was disabled.

ALJ Solomon did not specify the weight to be given to Dr. Osoba’s Disability

Impairment Questionnaire dated April 21, 2016. The ALJ supplied a reason for disregarding the

doctor’s diagnosis of “congestive heart failure,” noting that there was “no diagnosis of chronic

heart failure by a cardiologist” and that Dr. Osoba was “not a specialist.” (Tr. 24.) But the ALJ

did not provide a “good reason” for discounting the rest of Dr. Osoba’s opinion. Although the

ALJ deemed the doctor’s assessment of Brown’s limitations “grossly disproportionate to any

clinical findings and objective diagnostic testing,” (id.), he did not specify the clinical findings

and diagnostic tests. In fact, Dr. Osoba pointed to the 2014 echocardiogram and symptoms that

the doctor either observed or that Brown had described. Moreover, Dr. Osoba’s assessment of

Brown’s limitations was consistent with the assessment of each and every other doctor who

examined Brown.

The ALJ Substituted his Medical Opinion for the Doctors’

Even if the ALJ had not violated the treating physician rule thrice over, the Court would

remand this matter because the ALJ’s RFC determination was wholly unsupported by any of the

six doctors who treated Brown. ALJ Solomon found that Brown retained “the residual

functional capacity to perform sedentary work, which requires carrying objects weighing up to

10 pounds on an occasional basis, standing and walking up to two hours in an eight-hour

workday, and sitting up to six hours in an eight-hour workday.” (Tr. 25.) The ALJ based his

assessment “on the findings from the physical examinations and the diagnostic tests as well as

the treatment notes,” which he – unlike the physicians who conducted the tests and wrote the

notes – found to contain “no credible evidence of ability to perform less than sedentary work.”

(Id.)

In making this determination, the ALJ was not merely choosing “between properly

submitted medical opinions,” as he was entitled to do. See McBrayer, 712 F.2d at 799 (2d Cir.

1983). None of the physicians who treated or examined Brown supported his assessment. Dr.

Osoba opined that Brown could occasionally carry up to 10 pounds but that Brown could not sit

for more than 3 hours in an 8-hour workday. (Tr. 567.) Dr. Patel opined that Brown was unable

to lift or carry any weight, (Tr. 531), and would be unable to sit for more than 2 hours during

each 8-hour workday, (T. 529). Dr. Navarro agreed with Dr. Patel, opining that Brown could

never lift or carry any weight and could sit less than two hours each in an 8-hour workday. (Tr.

537–38.) And Dr. Ayala-Rodriguez stated that Brown could rarely/occasionally lift five pounds,

could never carry any weight, and could sit for less than an hour in an eight-hour workday. (Tr.

560.)

While the SSA’s consultative examiner disagreed with the assessments of these four

doctors, Dr. Ravi’s assessment of Brown’s RFC was even more bleak. Dr. Ravi believed that

Brown had “severe limitations to all activities due to his cardiac condition” and needed to “avoid

activities requiring mild or greater exertion.” (Tr. 548.) Indeed, Dr. Ravi was so concerned for

Brown’s health that the doctor demanded a legal waiver indicating that Brown had been notified

of his elevated blood pressure and acknowledging Dr. Ravi’s recommendation that he see his

cardiologist within 24 hours or present to the emergency department if his symptoms worsened.

(Tr. 552.)

In sum, not one of the doctors who actually examined Brown believed that he was

capable of even sedentary work at the various times they examined him in 2014, 2015, and 2016.

In finding that Brown could perform such work from the alleged onset date of December 25,

2013, until November 19, 2016, ALJ Solomon was relying on his own assessment of the medical

evidence, or perhaps the assessment of his fellow layman – the State Examiner. Even though the

ALJ and State Examiner were likely very experienced in reviewing medical evidence, neither

was permitted to substitute his own expertise or view of the medical proof against the uniform

view of the doctors. See Burgess, 537 F.3d at 131; Shaw, 221 F.3d at 134; Balsamo, 142 F.3d at

81; McBrayer, 712 F.2d at 799.

CONCLUSION

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

pleadings is denied, and Brown’s motion for judgment on the pleadings is granted to the extent it

seeks remand. This matter is remanded to the Commissioner of Social Security for further

proceedings consistent with this Memorandum and Order. The Clerk of Court is respectfully

directed to enter judgment in accordance with this Memorandum and Order and to close this

case.

SO ORDERED.

Dated: Brooklyn, New York

May 28, 2020 Roslynn R. Mauskopf

____________________________________

ROSLYNN R. MAUSKOPF

Chief United States District Judge