Knight v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DONOVAN KNIGHT,

Plaintiff,

MEMORANDUM AND ORDER

-against- 18-CV-2474 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Donovan Knight (“plaintiff”) appeals the

final decision of the Commissioner of Social Security

(“defendant” or “Commissioner”), which found that plaintiff was

not disabled, and therefore, not entitled to supplemental

security income benefits (“SSI”) under Title II of the Social

Security Act (“the Act”). Plaintiff raises three points of

error. First, plaintiff contends that the ALJ failed to

properly weigh the medical opinion evidence. Second, plaintiff

asserts the ALJ failed to properly determine plaintiff’s

residual functional capacity (“RFC”). Third, plaintiff

maintains that the ALJ failed to properly credit plaintiff’s

testimony regarding his symptoms.

For the reasons set forth below, plaintiff’s motion

for judgment on the pleadings is GRANTED and the Commissioner’s

motion is DENIED.

BACKGROUND

The parties to this action have submitted a Joint

Stipulation of Facts detailing plaintiff’s medical history and

the administrative hearing testimony, which the court hereby

incorporates by reference. (See ECF No. 21-1, Joint Stipulation

of Facts (“Stip.”).)

Plaintiff filed an application for SSI on August 12,

2014, alleging a disability onset date of November 1, 2013.

(ECF No. 24, Administrative Transcript (“Tr.”) 15.) His claim

was denied on March 13, 2015. (Id. 88-97.) On March 23, 2015,

plaintiff requested a hearing before an Administrative Law Judge

(“ALJ”). (Stip. 1.) Plaintiff’s hearing took place before ALJ

Mark Solomon on January 27, 2017. (Id. 2; Tr. 48-77.) At the

hearing, the ALJ heard testimony by plaintiff and Melissa Fass

Karlin, a vocational expert (“VE”). (See generally Tr. 48-77.)

On April 21, 2017, after the hearing concluded, the

ALJ found plaintiff was not disabled. (Id. 12-24.) On April

26, 2017, plaintiff requested review of the ALJ’s decision (id.

162), which the Appeals Council denied on March 1, 2018, thus

making the ALJ’s decision the Commissioner’s final action in the

case. (Id. 1-5.) This appeal followed. (See generally ECF No.

1, Compl.)

STANDARD OF REVIEW

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 v. Chater, 221 F.3d 126,

131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his 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

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

is essentially as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that [s]he has a ‘severe

impairment,’ (3) that the impairment is not one

[listed in Appendix 1 of the regulations] that

conclusively requires a determination of disability,

and (4) that the claimant is not capable of continuing

in [her] prior type of work, the Commissioner must

find [her] disabled if (5) there is not another type

of work the claimant can do.

Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003));

accord 20 C.F.R. § 404.1520(a)(4).

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential

five-step framework established in the SSA regulations.”

Burgess, 537 F.3d at 128 (internal quotation marks and citations

omitted). “However, [b]ecause a hearing on disability benefits

is a nonadversarial proceeding, 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 [his]

past relevant work [and considering his 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).

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

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, 537 F.3d at 127 (quoting Shaw, 221 F.3d at

131 (citation omitted)). “The substantial evidence standard

means once an ALJ finds facts, we can reject those facts ‘only

if a reasonable factfinder would have to conclude otherwise.’”

Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir.

2012) (citations omitted, emphasis in original). 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)).

THE ALJ’S DISABILITY DETERMINATION

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the SSA

regulations, the ALJ made the following determinations.

At step one, the ALJ concluded that plaintiff had not

engaged in substantial gainful activity since August 12, 2014,

the application date. (Tr. 17.) At step two, the ALJ found

that plaintiff had the severe impairments of lumbar and cervical

degenerative disc disease and right knee status post

arthroscopic surgery. (Id.) The ALJ did not find, however,

that plaintiff had a medically determinable left shoulder

impairment, as reported by Dr. Folk, plaintiff’s treating

physician. (Id.) The ALJ explained that (1) the record did not

contain any radiographic evidence of a shoulder impairment; (2)

the consultative doctors who examined plaintiff in March 2015

and December 2016 did not report any such impairment; and (3)

plaintiff did not allege any left shoulder impairment at the

January 2017 hearing. (Id.)

At step three, the ALJ found that plaintiff did not

have an impairment or combination of impairments that met or

medically equaled the severity of the listed impairments in 20

CFR Part 404, Subpart P, App’x 1. (Tr. 18.) The ALJ initially

considered plaintiff’s injuries under 1.04 Disorders of the

Spine and 1.02A Major Dysfunction of a Joint, but determined

that the record did not establish that plaintiff’s impairments

met either listing. (Id.) The ALJ then determined that

plaintiff’s RFC allowed him to perform light work,1 “with the

following additional limitations: he is limited to occasional

climbing, balancing, stooping, kneeling, crouching, and

crawling.” (Id.) In arriving at this conclusion, the ALJ

accorded “limited weight” to the opinions of Dr. Folk,

plaintiff’s treating physician and “partial weight” to the

opinions of Drs. Tranese and Meisel, the consultative examiners,

as well as limited weight to plaintiff’s statements. (Id. 21-

22.)

The ALJ acknowledged that Dr. Folk began treating

plaintiff in December 2013 after plaintiff’s slip-and-fall.

(Tr. 20.) The ALJ noted that Dr. Folk’s CT scan of plaintiff’s

1 Light work “involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds. Even though

the weight lifted may be very little, a job is in this category when it

requires a good deal of walking or standing, or when it involves sitting most

of the time with some pushing and pulling of arm or leg controls.” 20

C.F.R. § 416.967(b). Light work has been further interpreted to include work

that “requires standing or walking, off and on, for a total of approximately

6 hours of an 8–hour workday.” See Social Security Ruling (“SSR”) 83–10, 1983

WL 31251, at *6 (Jan. 1, 1983).

lumbar spine in January 2014 showed that plaintiff had

“significant” and “severe” spinal impingement, and that Dr. Folk

treated plaintiff with hydro collation physical therapy and pain

medication. (Id.) Dr. Folk’s MRI of plaintiff’s cervical

spine, taken in December 2016, further showed that plaintiff had

multiple spinal stenoses and bulging discs. (Id. 21.) The ALJ

cited Dr. Folk’s October 2016 medical report findings that

plaintiff: was unable to stand on heels and toes; had tenderness

and reduced range of motion of the left shoulder and of the

right knee; had numbness and weakness in the right lower

extremity and loss of sensation in the L3-4 distribution; and,

was “totally disabled and unable to work.” (Id.) The ALJ

further cited to Dr. Folk’s January 2017 Medical Source

Statement, which reported that plaintiff: could lift ten pounds

occasionally, sit for twenty minutes continuously and for two

hours in an eight-hour workday, and stand/walk for five to ten

minutes continuously and for one hour in an eight-hour workday;

could never operate foot controls; could never reach overhead;

could never push/pull; could never climb stairs, balance, stoop,

kneel, crouch, or crawl, and; could never work in environments

with exposure to respiratory irritants. (Id.)

The ALJ acknowledged that Dr. Folk was plaintiff’s

“long-term treating doctor,” and so his opinions were entitled

to controlling weight “if supported by the treatment notes and

there is no substantial evidence to the contrary.” (Tr. 22.)

Still, the ALJ accorded Dr. Folk’s opinions “limited weight”

because of apparent inconsistencies with other medical evidence

in the record. (Id.) First, Dr. Dowd, the orthopedic surgeon

who performed plaintiff’s knee surgery, reported “substantially

normal findings one month following the surgery.” (Id.)

Second, Dr. Folk diagnosed a shoulder injury and related

limitations in reaching, pulling, and pushing without any

radiographic evidence. (Id.) Third, plaintiff denied having

any musculoskeletal issues during a 2014 hospital visit. (Id.)

Fourth, Dr. Folk’s indications of the severity of plaintiff’s

symptoms were inconsistent with those of Drs. Tranese and

Meisel. (Id.) The ALJ also believed that the “conservative”

nature of Dr. Folk’s treatment of plaintiff—that is, the use of

a TENS unit and hot pack with one epidural injection—further

suggested that plaintiff’s condition was not as severe as Dr.

Folk claimed. (Id.)

Dr. Tranese examined plaintiff once, on March 3, 2015,

and found that plaintiff: was in no acute distress and had

normal gait; did not have a cane and was able to get on and off

the exam table and his chair without difficulty; complained of

back pain but did not mention problems with his right knee;

complained of neck and back pain exacerbated by heavy lifting,

frequent bending, excessive stair climbing, walking long

distances, and standing for long periods; did not mention

difficulty sitting; and, could perform activities of daily

living but needed help with cleaning, laundry, and shopping.

(Tr. 19.) The physical examination showed plaintiff had reduced

range of motion, tenderness, and muscle spasm of the cervical

and lumbar spines, as well as positive straight leg raising in

the supine position. (Id. 19-20.) An x-ray of the lumbar spine

showed disc space narrowing, and an x-ray of the cervical spine

showed degenerative changes and an old compression fracture.

(Id. 20.) Dr. Tranese concluded that plaintiff had no dexterity

issues, was mildly limited in walking long distances, standing

long periods, frequent bending, and excess stair climbing, and

had mild-to-moderate limitations in heavy lifting. (Id.) The

ALJ accorded the opinions of Dr. Tranese “partial weight”

because Dr. Tranese “performed a one-time examination and did

not cite exact specific limitations.” (Id. 22). Still, the ALJ

asserted that the limitations Dr. Tranese did cite were

supported by his examination findings. (Id.)

Dr. Meisel examined plaintiff once on December 8,

2016. (Tr. 20.) The ALJ noted the following of Dr. Meisel’s

findings: that plaintiff was in no acute distress; that

plaintiff had a cane without which he could walk normally; and,

that plaintiff could get on and off the exam table and his chair

without difficulty. (Id.) He also found right knee crepitus

and some quadriceps atrophy. (Id.) Dr. Meisel concluded that

plaintiff could carry up to twenty pounds frequently, sit for

seven hours straight and eight hours in an eight-hour workday,

do postural activities like stooping and kneeling frequently,

and could operate foot controls and do reaching, handling,

fingering, feeling, and pushing/pulling frequently. (Id.) The

ALJ accorded the opinions of Dr. Meisel “partial weight” because

Dr. Meisel “performed a one-time examination and reported

essentially a normal examination concerning the back and neck,

and mild findings regarding the right knee.” (Id. 22.) The ALJ

believed that plaintiff had greater limitations than Dr. Meisel

postulated, and supposedly incorporated such limitations into

his RFC finding. (Id.)

Lastly, the ALJ considered plaintiff’s testimony and

Function Report in arriving at his RFC determination. (Tr. 19.)

The ALJ noted plaintiff’s testimony that he injured his neck and

back in a slip-and-fall in December 2013, and thereafter used a

back brace and received heating pad treatment and an epidural

injection from Dr. Folk. (Id.) The ALJ further noted

plaintiff’s testimony that he injured his right knee from a fall

in January 2015, for which he had surgery. (Id.) Finally, the

ALJ noted plaintiff’s testimony that he could travel alone and

take care of his personal needs, used a cane mostly for walking

outdoors, could sit for one-half hour and stand for five

minutes, and had no problems using his hands or fingers. (Id.)

The ALJ also considered plaintiff’s Function Report from

February 2015, in which plaintiff indicated that he could not

lift anything heavy or stand or walk too long but did not

affirmatively state any limitations with respect to sitting,

climbing, kneeling, squatting, crouching, or reaching. (Id.)

The ALJ found that plaintiff’s statements “concerning

the intensity, persistence, and limiting effects of [his]

symptoms [were] not entirely consistent with the medical

evidence and other evidence in the record.” (Tr. 21.) The ALJ

believed that plaintiff’s claims regarding his difficulty

sitting, standing, and walking, and his need of a cane to be

inconsistent with the record. (Id. 22) First, the ALJ found no

record of plaintiff complaining of difficulty sitting prior to

his testimony at the hearing. (Id.) Second, plaintiff could

travel alone on public transport, which, according to the ALJ,

required considerable stair-climbing and standing/walking, and

plaintiff’s physical exams showed he was neurologically intact

with no pain standing or walking. (Id.) Third, the ALJ

remarked that Dr. Dowd found that plaintiff, two weeks after

knee surgery, had full passive range of motion of his knee with

pain on extremes and that he was neurovascularly intact with

full strength, and that plaintiff did not have a cane during his

consultation with Dr. Tranese. (Id.) Additionally, the ALJ

found it probative that plaintiff represented himself as “able”

to work to the New York State Department of Labor in order to

collect unemployment benefits in the first and second quarters

of 2014. (Id. 21-22)

Following the ALJ’s determination of plaintiff’s RFC,

the ALJ concluded at step four that plaintiff was unable to

perform any past relevant work. (Tr. 23.) Plaintiff had

previously worked as a Groundskeeper, which imposed medium

exertional demands, but the ALJ deemed plaintiff limited to

light work. (Id.) Finally, at step five, the ALJ concluded

that given plaintiff’s age, education, work experience, and RFC,

jobs existed in significant numbers in the national economy that

plaintiff could perform. (Tr. 23.) The VE, supplied with the

above information, determined that plaintiff could perform the

requirements of representative occupations such as Cashier,

Routing Clerk, and Mail Clerk. (Id. 23-24.) The VE further

determined that an individual of plaintiff’s description limited

to sedentary work with the same postural limitations could

perform the requirements of a Charge Account Clerk, Order Clerk,

and Call-out Operator. (Id. 24.)

DISCUSSION

Plaintiff contends that the ALJ failed to properly

weigh the medical opinion evidence, failed to properly determine

plaintiff’s RFC, and failed to properly evaluate plaintiff’s

testimony. (See generally ECF No. 19.) The court agrees and

addresses each claim below.

I. The ALJ Failed to Properly Weigh the Medical Opinion

Evidence

“[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. Appx. 71, 74 (2d Cir.

2013) (quoting Green–Younger, 335 F.3d at 106).2 “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)).

“An ‘ALJ who refuses to accord controlling weight to

the medical opinion of a treating physician must consider

2 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). Plaintiff filed his

claim on August 12, 2014. Accordingly, the court applies the treating

physician rule in the instant case. See, e.g., Conetta v. Berryhill, 365 F.

Supp. 3d 383, 395 n.5 (S.D.N.Y. 2019).

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). The regulations also

require that the ALJ “always give good reasons” in determining

the weight assigned to the claimant’s treating source’s opinion.

See 20 C.F.R. § 416.927(c)(2); see also Schaal v. Apfel, 134

F.3d 496, 503 (2d Cir. 1998). The ALJ is not required to cite

each factor explicitly in his decision, but must ensure he

applies the substance of the rule. Halloran, 362 F.3d at 32.

Although the ALJ duly acknowledged that Dr. Folk was

plaintiff’s treating physician (see Tr. 17), the ALJ erred by

assigning merely limited weight to Dr. Folk’s assessment of

plaintiff’s impairments without further explanation. In his

decision, the ALJ acknowledged the existence of the MRI, CT

scans, and physical examination that Dr. Folk administered, and

recited their essential findings. (Id. 20-21.) Notwithstanding

the ALJ’s acknowledgement, his decision did not set forth a

reasoned basis for disregarding the radiological evidence

underlying Dr. Folk’s opinion—the CT scan of plaintiff’s lumbar

spine, which revealed “significant” and “severe” spinal

impingements; the MRI of plaintiff’s cervical spine, which

showed that plaintiff had multiple spinal stenoses and bulging

discs (id. 20); and plaintiff’s physical examination, which was

“notable for evidence of significant pain with motion that was

limited in all directions, tenderness from C3-D1, decrease in

the normal cervical lordosis, and minimal spasms.” (Stip. 5-6.)

The ALJ also failed to cite to any medical authority in the

record who opined that the objective radiological findings and

conditions documented by Dr. Folk could not cause the

restrictions in sitting, standing, and walking identified by the

treating doctor.

The ALJ improperly minimized the weight of Dr. Folk’s

assessment based on apparent flaws with Dr. Folk’s assessments,

and inconsistencies with the consultative examiners’ findings.

Here, each consultative examiner saw plaintiff but once, and

there is no indication that either Dr. Tranese or Dr. Meisel’s

opinions incorporated any consideration of Dr. Folk’s MRI or CT

scans of plaintiff’s spine and knee, or that either doctor

administered a radiological examination of their own. (See

Stip. 9-10 nn.9, 10.) As an initial matter, “ALJ’s should not

rely heavily on the findings of consultative physicians after a

single examination.” Selian v. Astrue, 708 F.3d 409, 419 (2d

Cir. 2013). An “ALJ cannot rely solely on [the] RFCs [of the

consulting examiners] as evidence contradicting the treating

physician RFC. This is because an inconsistency with a

consultative examiner is not sufficient, on its own, to reject

the opinion of the treating physician.” Cammy v. Colvin, No.

12-CV-5810, 2015 WL 6029187 *14 (E.D.N.Y. Oct. 15, 2015)

(quoting Donnelly v. Comm'r of Soc. Sec., 49 F.Supp.3d 289, 305

(E.D.N.Y. 2014)).

In addition, the Second Circuit has noted that, where

a consulting examiner’s report fails to consider critical

radiological evidence, that physician’s opinion does not

constitute substantial evidence sufficient to deny controlling

weight to a treating physician’s opinion. See Burgess, 537 F.3d

at 132 (opinions of consultative physicians who did not read

plaintiff’s MRI report, or otherwise “betray[ed] a lack of

awareness” of MRI report, were not substantial evidence). Here,

plaintiff told Dr. Meisel that an MRI of his spine showed

“slipped discs,” and that an MRI of his knee (prior to

arthroscopic surgery) showed a torn right knee ligament. (Stip.

9.) And yet, without consulting the relevant imaging results,

Dr. Meisel concluded that plaintiff had cervical back pain of

“etiology unknown” and “rule[d] out mild osteoarthritis” of

plaintiff’s right knee. (Id. 10.) Further, plaintiff told Dr.

Tranese that he had “cervical and lumbar disc herniations.”

(Id. 9.) Dr. Tranese—again, without consulting the actual

imaging and “based on the limited evidence available”—concluded

that plaintiff had “mild-to-moderate” movement limitations.

(Id.) The ALJ failed to explain how either consultative

examiner report undermined Dr. Folk’s assessment of plaintiff’s

limited ability to sit, walk, or stand, given the failure of

each to consider radiological evidence to the contrary.

Purported flaws or internal inconsistencies in Dr.

Folk’s report do not merit the ALJ’s decision to assign less-

than-controlling weight to his opinion. First, even if Dr. Folk

incorrectly reported a shoulder impairment diagnosis based on

radiological imaging of plaintiff’s shoulder, that would not

undermine Dr. Folk’s conclusion—based on spinal imaging—that

plaintiff had sharply diminished capacity to sit, stand, and

walk. Second, plaintiff’s failure to report musculoskeletal

complaints during a one-off visit to the Brooklyn Hospital

Center emergency department is readily explained by the purpose

for his visit, sexually transmitted disease testing, which would

not have necessarily required plaintiff to report

musculoskeletal impairments. Third, the ALJ improperly

concluded that Dr. Folk’s “conservative” course of treatment

indicated that plaintiff’s condition was not as severe as Dr.

Folk reported. See Burgess, 537 F.3d 117 at 129 (“Nor is the

opinion of the treating physician to be discounted merely

because he has recommended a conservative treatment regimen.”)

(citing Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)).

Accordingly, the ALJ improperly gave the opinions of

Dr. Folk less-than-controlling weight. On remand, the ALJ is

directed to consider Dr. Folk’s MRI and CT scans on plaintiff’s

lumbar and cervical spine in determining the weight of Dr.

Folk’s opinion. If the ALJ nonetheless determines that Dr.

Folk’s opinion is not entitled to controlling weight, the ALJ

must nonetheless articulate a basis for the alternative weight

assigned. The ALJ is reminded that treating physician

assessments are “entitled to some extra weight, even if

contradicted by substantial evidence, because the treating

source is inherently more familiar with a claimant's medical

condition than are other sources.” Schisler v. Sullivan, 3 F.3d

563, 570 (2d Cir. 1993).

II. The ALJ Failed to Properly Determine Plaintiff’s Residual

Functional Capacity

In assessing a claimant’s RFC, the ALJ must “first

identify the individual’s functional limitations or restrictions

and assess his or her work-related abilities on a function-by-

function basis. . . . Only after that may RFC be expressed in

terms of the exertional levels of work, sedentary, light,

[etc.].” Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330,

348–49 (E.D.N.Y. 2010) (citing SSR 96–8p, 1996 WL 374184, at *1

(July 2, 1996)). “The Act’s regulations require that the ALJ

include in his RFC assessment a function-by-function analysis of

the claimant’s functional limitations or restrictions and an

assessment of the claimant’s work-related abilities on a

function-by-function basis.” Palascak v. Colvin, No. 1:11-CV-

0592 (MAT), 2014 WL 1920510, at *10 (W.D.N.Y. May 14, 2014)

(internal quotation marks and citation omitted). This means

that “the ALJ must make a function[-]by[-]function assessment of

the claimant’s ability to sit, stand, walk, lift, carry, push,

pull, reach, handle, stoop, or crouch, based on medical reports

from acceptable medical sources that include the sources’

opinions as to the claimant’s ability to perform each activity.”

Knighton v. Astrue, 861 F. Supp. 2d 59, 66 (N.D.N.Y. 2012)

(citations omitted); 20 C.F.R. §§ 404.1513(c)(1), 404.1569a(a),

416.913(c)(1), 416.969a(a). Thereafter, “[t]he claimant’s RFC

can be expressed in terms of the exertional levels of work,

sedentary, light, medium, heavy, and very heavy.” Young v.

Colvin, No. 15-CV-344-FPG, 2016 WL 5661723, at *3 (W.D.N.Y.

Sept. 30, 2016) (citing Knighton, 861 F. Supp. 2d at 66)).

Here, the ALJ concluded that plaintiff was capable of

light work notwithstanding Dr. Folk’s opinion—which the ALJ

accorded merely “limited” weight despite its basis in compelling

radiological evidence—that plaintiff could only sit for twenty

minutes continuously and for two hours in an eight-hour workday,

and stand/walk for five to ten minutes continuously and for one

hour in an eight-hour workday. (Tr. 18.) The walking and

standing capability for “light work” is “frequent,” which is

defined as “off and on, for a total of approximately 6 hours of

an 8-hour workday . . . Many unskilled light jobs are performed

primarily in one location, with the ability to stand being more

critical than the ability to walk.” SSR 83-10, 1983 WL 31251,

at *6. According to Dr. Folk, plaintiff is limited to a maximum

of one hour of standing or walking a day. (Stip. 6.) Had Dr.

Folk’s opinion been accorded more than “limited” weight, it is

doubtful a properly-reasoned RFC would have determined plaintiff

capable of light work. See Poupore v. Astrue, 566 F.3d 303, 305

(2d Cir. 2009) (“The full range of light work requires

intermittently standing or walking for a total of approximately

6 hours of an 8–hour workday, with sitting occurring

intermittently during the remaining time.”).

Accordingly, the ALJ is directed on remand to revise

plaintiff’s RFC, taking into due consideration Dr. Folk’s

assessment of plaintiff’s ability sit, walk, or stand, and the

radiological evidence upon which that opinion was based.

III. The ALJ Failed to Properly Evaluate Plaintiff’s Testimony

An ALJ evaluating a claimant’s subjective complaints

of pain must first decide “whether the claimant suffers from a

medically determinable impairment[ ] that could reasonably be

expected to produce the pain alleged.” 20 C.F.R. § 404.1529(c).

Second, the ALJ must “evaluate the intensity and persistence of

those symptoms considering all of the available evidence.” Id.

If the claimant’s “pain contentions are not substantiated by the

objective medical evidence,” the ALJ must assess the claimant’s

credibility. Id. “Remand is appropriate where an ALJ does not

follow these steps.” Peck v. Astrue, No. 07-CV-3762 (NGG), 2010

WL 3125950, at *4 (E.D.N.Y. Aug. 6, 2010).

Although the ALJ acknowledged that plaintiff’s

“medically determinable impairments could reasonably be expected

to produce the . . . alleged symptoms,” the ALJ found

plaintiff’s statements at the hearing concerning the intensity,

persistence, and limiting effects of his impairments were “not

entirely consistent with the medical evidence and other evidence

in the record.” (Tr. 21.) Specifically, the ALJ found

plaintiff’s account incongruous because: plaintiff represented

he was “able” to work in order to obtain unemployment benefits

from the New York State Department of Labor; plaintiff testified

to difficulty sitting but purportedly did not make such a

complaint at another time; plaintiff could travel alone on

public transportation, which presumably required considerable

stair climbing, walking, and standing; plaintiff was

neurologically intact; and, plaintiff did not seem to require

the use of a cane. (Id. 21-22.) The court disagrees, and holds

the ALJ’s reasons for finding plaintiff’s testimony inconsistent

with the record were erroneous for the following reasons.

First, the fact that plaintiff presented himself as

“able” to work in order to obtain unemployment benefits is not

dispositive. See Ginsberg v. Astrue, No. 05-CV-3696, 2008 WL

3876067 *17 (E.D.N.Y. Aug. 18, 2008) (arguing that receipt of

unemployment benefits alone “does not constitute substantial

evidence of plaintiff’s general lack of credibility”).

Specifically, there is no evidence as to what kind of work

plaintiff had in mind; without more, it is unclear how the ALJ

could have reasonably concluded that plaintiff believed he was

able to perform “light work,” rather than a “sedentary”

function.

Second, plaintiff did not only testify to having

problems sitting, but also put a mark next to “Sitting” on his

Function Report when asked to “[e]xplain how your illnesses,

injuries, or conditions affect any one of the following.” (Tr.

205.) Just above, he indicated that he “can’t lift anything

heavy,” “can’t stand too long,” and “can’t walk to [sic] long.”

(Id. 204.) Though plaintiff may not have mentioned difficulties

sitting during his examinations with Drs. Tranese and Meisel,

the ALJ incorrectly stated that plaintiff did not register

complaints about sitting prior to his hearing testimony.

Third, based on plaintiff’s testimony that he “can

travel alone on public transportation” (Tr. 22), the ALJ

speculated that plaintiff also was capable of spending a

considerable amount of time stair climbing, walking, and

standing. (Tr. 22.) But this assumption does not directly

follow, and the ALJ did not adduce testimony by plaintiff

regarding the duration or nature of his transportation, or the

pain caused by any resulting stair climbing, walking, or

standing. (See generally id. 63.) Further, Dr. Folk stated

that plaintiff had severe difficulty using public

transportation. (Id. 311.)

Fourth, contrary to the ALJ’s claim, the plaintiff did

have documented neurological abnormalities. Dr. Folk

determined, based on radiological evidence and frequent, multi-

year observation, that plaintiff had numbness and weakness in

the legs with abnormal gait and decreased sensation in the right

leg. (Tr. 296-97.) Plaintiff also told Dr. Tranese that he had

intermittent numbness and tingling in his fingers and legs.

(Id. 246.)

The court acknowledges some inconsistency between

plaintiff’s testimony and the medical evidence regarding his

need for a cane. Specifically, plaintiff represented that he

used a cane, but did not bring a cane to his exam with Dr.

Tranese and was able to walk normally without a cane at his exam

with Dr. Meisel. (Stip. 9, 10.) Taken alone, however, this

discrepancy hardly provides a sufficient basis to find

plaintiff’s testimony inconsistent with the balance of the

objective medical evidence on record. Indeed, cherry-picking

this one inconsistency from the whole record as a basis for

denying plaintiff disability benefits runs afoul of the ALJ’s

mandate, and, along with the errors noted above, warrants

remand. See Clarke v. Colvin, 15 Civ. 354 (KBF), 2017 WL

1215362, at *9 (S.D.N.Y. Apr. 3, 2017) (“[T]he ALJ selectively

relied on evidence that weighed against a finding of a

disability. This is improper—an ALJ may not ‘pick and choose

evidence which favors a finding that the claimant is not

disabled.’”) (quoting Rodriguez v. Astrue, 07 Civ. 534

(WHP)(MHD), 2009 WL 637154, at *25 (S.D.N.Y. Mar. 9, 2009));

accord Meadors v. Astrue, 370 Fed. Appx. 179, 185 n.2 (2d Cir.

2010) (summary order) (the ALJ “cannot simply selectively choose

evidence in the record that supports his conclusions . . . .”)

(internal quotation marks omitted); Kebreau v. Astrue, No. 11 CV

13 (RJD), 2012 WL 3597377 at *2 (E.D.N.Y. Aug. 20, 2012); Cruz v

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004).

In sum, the court finds that the ALJ failed to

properly evaluate plaintiff’s testimony and remands with the

directive that the ALJ consider plaintiff’s testimony under the

standard set forth by 20 C.F.R. § 404.1529(c), and in conformity

with this Memorandum and Order.

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order further proceedings

when appropriate. “The court shall have 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). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82–83 (2d Cir. 1999) (quoting Pratts v.

Charter, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks

omitted). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39.

For the reasons set forth above, the court grants

plaintiff’s motion for judgment on the pleadings; denies

defendant’s cross-motion for judgment on the pleadings; and

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to close this case and enter judgment in favor of

plaintiff.

SO ORDERED.

Dated: June 10, 2020

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York