# Knight v. Berryhill

> District Court, E.D. New York · June 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10304361

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

DONOVAN KNIGHT,

Plaintiff,
MEMORANDUM AND ORDER
-against- 18-CV-2474 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

--------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304361. Public record. Not legal advice.