# Morgan v. Commissioner of Social Security

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

URL: https://www.frixlaw.com/law-library/cases/10304407

## Case

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

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

JANICE RENEE MORGAN,

Plaintiff,

-against- MEMORANDUM AND ORDER

18-CV-2880(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304407. Public record. Not legal advice.