Morgan v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANICE RENEE MORGAN,

Plaintiff,

-against- MEMORANDUM AND ORDER

18-CV-2880(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Janice Renee Morgan (“plaintiff”) appeals

the final decision of the Commissioner of Social Security

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

was not disabled, and therefore not entitled to disability

insurance benefits under Title II of the Social Security Act

(the “Act”). Plaintiff moved for judgment on the pleadings,

contending that the Administrative Law Judge (“ALJ”) failed to

follow the treating physician rule in weighing the medical

opinion evidence, and as a result, the ALJ’s residual functional

capacity (“RFC”) determination was not supported by substantial

evidence. Defendant cross-moved for judgment on the pleadings.

For the reasons herein, plaintiff’s motion for

judgment on the pleadings is GRANTED, the Commissioner’s motion

is DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order.

Background

On September 18, 2013, plaintiff went to the emergency

room, complaining of shooting pain in both of her legs,

reporting that she fell on her knees while at work two weeks

earlier. (See ECF No. 20, Administrative Transcript (“Tr.”), at

310.) In October 2013, plaintiff began treatment with Dr.

Gautam Khakhar, a physical medicine and rehabilitation

specialist. (Id. at 722-25.) Dr. Khakhar treated plaintiff’s

pain in her neck, lower back, and bilateral knee joints. (Id.)

Plaintiff consulted several more times with Dr. Khakhar in 2013,

and continued to do so throughout 2014, 2015, and 2016. See

generally ECF No. 19-1, Stipulated Statement of Facts

(“Stip.”).)

Also beginning in October 2013, plaintiff sought

treatment from Dr. Barry M. Katzman, an orthopedic surgeon, to

whom she complained of pain from her neck to her shoulders.

(Tr. at 335-36.) Plaintiff visited Dr. Katzman several more

times from 2013 through 2016. (See generally Stip.) Among the

treatments performed on plaintiff by Dr. Katzman were a left

knee arthroscopy on February 21, 2014, and a right knee

arthroscopy on January 2, 2015. (Tr. at 330-31, 451-53.)

On October 2, 2014, plaintiff sought treatment from

Dr. Demetrois Mikelis, an orthopedic spine surgeon. (Id. at

339-342.) Dr. Mikelis opined that plaintiff should refrain from

heavy lifting, carrying, or bending, so as to avoid exacerbating

the tenderness and spasms in her spine. (Id. at 341.)

Plaintiff visited Dr. Mikelis again in July 2016, and in

September 2016. (Id. at 464-67.)

Plaintiff first filed an application for disability

benefits pursuant to the Act in July 2014, listing the following

conditions, with an onset date of September 4, 2013: bulging

disc on back, carpel tunnel in the hands, surgery on both knees,

pain in neck. (Id. at 113-16, 184-87, 216-24.) Plaintiff’s

application was denied on December 11, 2014. (Id. at 117-22.)

On February 18, 2015, plaintiff requested a hearing before an

ALJ. (Id. at 123-24.)

On September 11, 2016, plaintiff underwent a

consultative orthopedic examination, performed by Dr. Ram Ravi.

(Id. at 369-72.) Dr. Ravi opined that plaintiff had no

limitations to sitting, and mild limitations to standing,

walking, overhead activities, bending, pushing, pulling,

lifting, and carrying. (Id. at 371.)

Plaintiff’s hearing took place before ALJ Laura M.

Olszewski on November 17, 2016, during which plaintiff and Alita

Coles, a vocational expert, both testified. (See generally id.

at 71-103.) On February 1, 2017, the ALJ determined that

plaintiff was not disabled. (Id. at 55-65.) Thereafter,

plaintiff requested review of the ALJ’s decision, which the

Appeals Council denied on March 14, 2018. (Id. at 1-7.) This

action followed. (See generally ECF No. 1., Complaint.)

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 her previous work or

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

§ 423(d)(2)(A).

The regulations promulgated by the Commissioner set

forth 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). If the ALJ determines that

the claimant is or is not disabled at any step, the analysis

stops.

“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 (quotation and citations omitted).

“However, because a hearing on disability benefits is a

nonadversarial proceeding, the ALJ generally has an affirmative

obligation to develop the administrative record.” Id.

(quotation and alteration omitted). “The burden falls upon the

Commissioner at the fifth step of the disability evaluation

process to prove that the claimant, if unable to perform her

past relevant work [and considering 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., 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)).

Discussion

I. The ALJ’s Decision

The ALJ in this matter followed the five-step

sequential process, as mandated by the Act’s implementing

regulations, to determine whether plaintiff was disabled.

At step one, the ALJ found that plaintiff had not

engaged in substantial gainful activity since September 4, 2013,

the alleged onset date. (Tr. at 57.) At step two, the ALJ

determined that plaintiff had the severe impairments of carpal

tunnel syndrome, degenerative disc disease, and status post-knee

surgery. (Id.) At step three, the ALJ determined that

plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of a

listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Id. at 57-58.)

At step four, the ALJ determined that plaintiff had

the RFC to perform sedentary work.1 (Id. at 58-64.) The ALJ

determined that plaintiff could: lift and carry ten pounds

occasionally; sit for six hours and stand or walk for two hours

in an eight-hour workday; occasionally climb ramps and stairs;

not climb ladders and scaffolds; occasionally balance and stoop;

not kneel, crouch, or crawl; occasionally reach overhead and

frequently reach in all other directions; frequently handle,

finger, and feel; and that she required a cane to ambulate.

(Id. at 58-59, 64.)

In reaching the RFC determination, the ALJ considered,

inter alia, the medical opinion evidence proffered by the four

doctors plaintiff visited between 2013 and 2016. (Id. at 62-

63.) The ALJ first described Dr. Ravi’s opinion from the report

of plaintiff’s consultative exam in September 2016. (Id. at

62.) According to the ALJ’s decision, Dr. Ravi reported that

plaintiff: had no sitting limitations; had mild limitations with

standing, walking, overhead activities, bending, pushing,

1 Sedentary work “involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and

small tools. Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in

carrying out job duties. Jobs are sedentary if walking and standing are

required occasionally and other sedentary criteria are met.” 20 C.F.R. §

404.1567(a).

pulling, lifting, and carrying; should avoid driving and

squatting due to her right shoulder pain, neck pain, back pain,

bilateral knee pain, and bilateral carpal tunnel syndrome; could

lift and carry twenty pounds occasionally; could sit eight

hours, stand four hours, and walk four hours in an eight-hour

workday; required a cane to ambulate; could occasionally reach

and operate foot controls; could frequently handle, finger, and

feel; could occasionally climb stairs and ramps, but never

ladders or scaffolds; could never balance, stoop, kneel, crouch,

or crawl; and could never operate a motor vehicle or be exposed

to unprotected heights or moving mechanical parts, but could

occasionally tolerate exposure to humidity, wetness, dust,

odors, fumes, pulmonary irritants, extreme cold and heat, and

vibrations. (Id.) The ALJ accorded “great weight” to Dr.

Ravi’s opinion, finding it to be consistent with the record as a

whole and with Dr. Ravi’s examination, which suggested “minimal

sitting difficulties and a residual ability to perform sedentary

work with additional accommodations.” (Id.)

The ALJ next summarized Dr. Khakhar’s opinions. The

ALJ noted that “[t]hroughout the record, Dr. Khakhar opined

th[at] [plaintiff] was ‘totally disabled.’” (Id.) The ALJ then

summarized Dr. Khakhar’s November 2016 report, which opined that

plaintiff could: occasionally lift or carry five to ten pounds;

never reach; occasionally push and pull; occasionally grab,

turn, twist, handle, and hold objects; occasionally pick, pinch,

and type and frequently finger; not engage in heavy lifting,

moving around, or operating machinery; sit and stand or walk

only one hour in an eight-hour workday; climb two steps, but

otherwise never climb and never crouch, kneel, crawl, reach,

push or pull; and occasionally balance and stoop. (Id. at 63.)

The ALJ accorded “partial weight” to Dr. Khakhar’s November 2016

opinion, finding it to be “inconsistent with the medical

evidence of record and [plaintiff’s] self-reported activities of

daily living.” (Id.) Further, the ALJ accorded “little weight”

to Dr. Khakhar’s opinions made on other occasions that plaintiff

was “totally disabled,” finding that such statements were

“vague” and “conclusory,” “fail[ed] to offer a function-by-

function analysis of [plaintiff’s] abilities and limitations,”

and were “on an issue reserved to the Commissioner” (i.e.,

whether plaintiff was disabled). (Id. at 62.)

The ALJ then considered Dr. Katzman’s opinion from his

November 2016 report, which was that plaintiff could: not lift

or carry any weight or stand or walk; sit two hours in an eight-

hour workday; never reach but could occasionally push, pull,

hold objects, pick, pinch, and type; frequently grasp, turn,

twist, and handle objects and finger; and could never climb,

bend, balance, stoop, crouch, kneel, or crawl. (Id. at 63.) To

these opinions, the ALJ accorded “partial weight.” (Id.) The

ALJ found Dr. Katzman’s opinion overall to be inconsistent with

plaintiff’s physical exams and “relatively conservative”

treatment history. (Id.) For example, the ALJ contended that

there was no support for a finding that plaintiff could never

stand or walk. (Id.)

Lastly, the ALJ briefly summarized Dr. Mikelis’

opinions from his July and September 2016 reports. (Id.) Dr.

Mikelis found that plaintiff was restricted from activities that

exacerbated her symptoms, such as heavy lifting, carrying, or

bending. (Id.) The ALJ assigned “great weight” to Dr.

Mikelis’s opinions, finding that they were consistent with

plaintiff’s restrictions from her known impairments. (Id.)

Based on the foregoing RFC determination, the ALJ

determined that plaintiff was unable to perform her past work as

a security guard, mail sorter, and distribution packer. (Id. at

64.)

At step five, the ALJ concluded that there were jobs

that existed in significant numbers in the national economy that

plaintiff could perform despite her restrictions. (Id.) The

testifying vocational expert, supplied with the above

information, determined that plaintiff could perform the

requirements of representative occupations such as addresser,

call out operator, and order clerk. (Id. at 65.)

II. Weighing of Medical Opinions

Plaintiff contends that the ALJ failed to follow the

treating physician rule and appropriately weigh the medical

opinion evidence and that, as a result, the ALJ’s RFC

determination was not supported by substantial evidence.

Under the regulations in place at the time plaintiff

filed her claim, an ALJ was to “defer ‘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

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 her claim on July 21, 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).

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

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 the decision, but must apply the

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

A. The ALJ Failed to Identify “Good Reasons” for Giving

Dr. Khakhar’s and Dr. Katzman’s Opinions Less Than

“Controlling Weight”

Dr. Khakhar, a physical medicine and rehabilitation

specialist who treated plaintiff over the course of three years,

was one of plaintiff’s treating physicians. The ALJ gave only

“partial weight” to Dr. Khakhar’s November 2016 opinion, and

“little weight” to Dr. Khakhar’s other opinions that plaintiff

was “totally disabled.” (Tr. at 62-63.) The ALJ neglected to

sufficiently identify the specific evidence that undermined Dr.

Khakhar’s November 2016 opinion.

In the decision, the ALJ acknowledged the existence of

the MRIs, x-rays, and physical examinations that Dr. Khakhar

administered. (Id. at 60-62.) Nonetheless, the ALJ’s decision

did not set forth sufficiently good reasons for disregarding the

evidence underlying Dr. Khakhar’s opinion, which consisted of: a

pre-arthroscopy MRI of plaintiff’s left knee showing

intermediate to high grade chondromalacia involving the lateral

patellar facet with marrow edema and cystic changes (Stip. at

3); a pre-arthroscopy MRIs of plaintiff’s right knee showing a

high grade cartilage tear (id. 2, 8); an x-ray of plaintiff’s

lumbar and cervical spine showing straightening of the lumbar

and cervical lordoses, indicative of spasm in both, and

degenerative changes in the lumbar spine (id. at 2); an MRI of

plaintiff’s cervical and lumbar spine showing straightening of

the cervical spine and bulging discs in the lumbar spine (id. at

3); MRIs of plaintiff’s hands showing cystic changes within the

proximal aspect of the lunate in her left hand and a

synovial/ganglion cyst volar to the radiocarpal joint in her

right hand (id. at 6); and the numerous physical exams regularly

documenting that plaintiff walked with an antalgic gait,

required a cane, needed help getting on and off the exam table,

and had tenderness and painful range of motion in her knees and

spine (see generally id. at 1-14).

The ALJ did not cite to the opinion of any other

doctor, or any record evidence, that contradicted the objective

evidence underlying the conditions documented by Dr. Khakhar;

conditions which could cause restrictions in sitting, standing,

and reaching. Indeed, the other medical source findings appear

to be largely consistent with Dr. Khakhar’s opinion. Dr.

Katzman performed chondroplasty of the patella and synovectomy

in plaintiff’s left knee and chondroplasty of the patella, lysis

of adhesions, and synovectomy in plaintiff’s right knee (id. at

5, 10), later finding stress fractures in both and advising her

to “[k]eep off [her] legs as much as possible” (id. at 12). Dr.

Mikelis found tenderness and spasms in plaintiff’s cervical and

lumbar spine with decreased range of motion and decreased motor

strength in her lumbar spine with altered sensation. (Id. at

8.) At a later exam, Dr. Mikelis found essentially the same

condition of plaintiff’s spine as well as decreased motor

strength, and altered sensation in plaintiff’s quadriceps and

hamstrings bilaterally. (Id. at 11.) Dr. Ravi reported that

plaintiff had reduced range of motion in her spine, shoulders,

and knees, had an antalgic gait, could not walk on her heels and

toes, could not squat past ten percent, and had difficulty

getting on and off the exam table and her chair. (Id. at 12.)

Nor did the ALJ cite any particular aspect of Dr.

Khakhar’s opinion that was inconsistent with plaintiff’s daily

activities or the medical evidence. As an initial matter, a

“[p]laintiff’s reports of her daily activities by themselves are

not substantial evidence that she was not disabled and are

insufficient to justify according [a treating physician’s]

opinion limited weight,” because a plaintiff “‘need not be an

invalid to be found disabled.’” Nusraty v. Colvin, 213 F. Supp.

3d 425, 440 (E.D.N.Y. 2016) (quoting Balsamo v. Chater, 142 F.3d

75, 81 (2d Cir. 1998)). Here, plaintiff reported that she:

struggled walking long distances on rough ground, could sit for

only a half hour without pain, could not stand for long periods

of time without pain in her back and knees, had difficulty

bending and cleaning, and could not walk far without pain.

(Stip. at 15-16.) She said that her days consist of eating,

washing up, and waiting for her husband to take her to physical

therapy. (Id.) It is not clear from the ALJ’s decision how Dr.

Khakhar’s opinion is inconsistent with these limited daily

activities.

Like Dr. Khakahr, Dr. Katzman, an orthopedic surgeon

who treated plaintiff for three years, was also one of

plaintiff’s treating physicians. The ALJ accorded Dr. Katzman’s

opinion only “partial weight,” due primarily to what she found

to be various inconsistencies. (Tr. at 63.)

The court recognizes that Dr. Katzman’s conclusion

that plaintiff could not stand, walk, or carry any weight

appears inconsistent with some of the more recent physical exams

of plaintiff. (See, e.g., Stip. at 10, 12.) However, other

doctors concurrently documented severe impairments in their

physical exams of plaintiff. In Dr. Khakhar’s latest report, he

noted peripatellar tenderness, painful range of motion, and

edema in both knees. (Id. at 14.) He also noted that plaintiff

had cervical and lumbar myofascial derangements, cervical disc

bulge and disc herniation, internal derangements and status

post-knee arthroscopic procedure of both knees, and bilateral

hand pain. (Tr. at 472.) Dr. Mikelis found, in his latest

examination of plaintiff, tenderness and spasms in plaintiff’s

cervical and lumbar spine with decreased range of motion and

decreased motor strength in plaintiff’s lumbar spine, as well as

decreased motor strength and altered sensation in plaintiff’s

quadriceps and hamstrings bilaterally. (Stip. at 8, 11.) Dr.

Ravi reported that plaintiff had reduced range of motion in her

spine, shoulders, and knees, had an antalgic gait, could not

walk on her heels and toes, could not squat past ten percent,

and had difficulty getting on and off the exam table or her

chair. (Id. at 12.) Finally, Dr. Katzman himself noted in his

most recent exam that plaintiff had bilateral knee stress

fractures, and recommended that she keep off of her legs as much

as possible. (Tr. at 489.) An inconsistency with one portion

of Dr. Katzman’s opinion is not enough to limit the amount of

weight it was accorded; instead, the ALJ should have sought more

medical information. See Hartnett v. Apfel, 21 F. Supp. 2d 217,

221 (E.D.N.Y. 1998) (“[I]f an ALJ perceives inconsistencies in a

treating physician’s reports, the ALJ bears an affirmative duty

to seek out more information from the treating physician and to

develop the administrative record accordingly.”).

Further, the ALJ improperly concluded that Dr.

Katzman’s “relatively conservative” course of treatment

indicated that his opinion was entitled to less weight. (Tr. at

63.) An “opinion of the treating physician [is not] to be

discounted merely because he has recommended a conservative

treatment regimen.” Burgess, 537 F.3d 117 at 129.

The court is mindful that the opinion of the

consultative physician, Dr. Ravi, presents inconsistencies with

Dr. Khakhar’s and Dr. Katzman’s opinions. Dr. Ravi opined that

plaintiff could carry twenty pounds occasionally, sit for six

hours at a time, stand and walk for three hours at a time, and

occasionally reach. (Tr. at 62.) However, an ALJ “cannot rely

solely on [the] RFCs [of the consultative examiners] as evidence

contradicting the treating physician RFC . . . 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, 2014) (quotation omitted).

On remand, if the ALJ determines that the opinions of

Dr. Khakhar and Dr. Katzman are entitled to less than

controlling weight, the ALJ must provide sufficiently “good

reasons” for discounting the objective evidence underlying their

opinions, and more thoroughly explain any inconsistencies

between their opinions and the other evidence in the record.

See Burgess, 537 F.3d at 130-31 (remand appropriate where ALJ

did not adequately grapple with “objective evidence” supporting

treating physician’s opinion). Moreover, the ALJ must explain

why Dr. Ravi’s opinion, based on a single consultative

examination of plaintiff, is entitled to greater weight than the

opinions of physicians who treated her over the course of

multiple years. See Selian v. Astrue, 708 F.3d 409, 419 (2d

Cir. 2013) (“ALJs should not rely heavily on the findings of

consultative physicians after a single examination.”) The ALJ

is reminded that treating physicians’ 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.” Harris v. Berryhill, No. 17-cv-3968, 2018 WL 3966237,

at *1 (E.D.N.Y. Aug. 17, 2018) (quoting Jones v. Sullivan, 949

F.2d 57, 59 (2d Cir. 1991)).

B. The ALJ Misconstrued the Opinions That Were Accorded

“Great Weight”

The ALJ assigned “great weight” to both Dr. Ravi’s

opinion and Dr. Mikelis’s opinion. On remand, even if the ALJ

again decides to give the opinions of Dr. Ravi and Dr. Mikelis

greater weight than those of Dr. Khakhar and Dr. Katzman, the

ALJ must fully incorporate all aspects of their opinions into

the RFC determination.

The ALJ characterized Dr. Ravi’s opinion as finding

that plaintiff had “mild limitations” with “overhead activities,

bending, pushing, pulling, lifting, and carrying,” based on Dr.

Ravi’s observation that she could “[o]casionally” reach overhead

or in other directions. (Tr. at 63, 375.) Despite this

limitation, the ALJ found that plaintiff was able to perform

sedentary work, in part because she could “frequently reach in

all directions.” (Id. at 58-59.) That conclusion does not

follow from Dr. Ravi’s opinion, which was that she could only

occasionally reach in other directions. (Id. at 375.)

The ALJ also accorded Dr. Mikelis’s opinion “great

weight,” and noted that Dr. Mikelis opined that plaintiff “was

restricted from any activity that exacerbated her symptoms, such

as . . . bending.” (Id. at 63.) Dr. Mikelis’s opinion was

consistent with plaintiff’s statement that she could not “bend

to put clothes in [the] washer [and] dryer.” (Id. at 232.)

Nonetheless, despite purporting to accord Dr. Mikelis’s opinion

“great weight,” the ALJ did not mention plaintiff’s limitation

with respect to bending when finding that plaintiff could

perform sedentary work. (Id. at 58-59.)

An “ALJ may not ‘pick and choose evidence which favors

a finding that the claimant is not disabled.’” Clarke v.

Colvin, No. 15-cv-354, 2017 WL 1215362, at *9 (S.D.N.Y. Apr. 3,

2017) (quoting Rodriguez v. Astrue, No. 07-cv-534, 2009 WL

637154, at *25 (S.D.N.Y. Mar. 9, 2009)). Accordingly, on

remand, the ALJ should incorporate (1) Dr. Ravi’s opinion that

plaintiff can only occasionally reach in all directions, and (2)

Dr. Mikelis’s opinion that plaintiff should not bend, into the

RFC determination.

Conclusion

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).

Remand is particularly appropriate where further findings or

explanation will clarify the rationale for the ALJ’s decision.

Pratts, 94 F.3d at 39. Here, the ALJ failed to adequately

explain the decision to accord less weight to two of plaintiff’s

treating physicians, Dr. Khakhar and Dr. Katzman. Moreover, the

ALJ failed to incorporate all aspects from the opinions of Dr.

Ravi and Dr. Mikelis into the RFC determination.

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 enter

judgment in favor of plaintiff and close this case.

SO ORDERED.

Dated: Brooklyn, New York

June 22, 2020

/s/

Hon. Kiyo A. Matsumoto

United States District Judge