Rasin v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FAINA RASIN,

Plaintiff,

MEMORANDUM & ORDER

-against-

18-cv-06605(KAM) (LB)

COMMISSIONER OF SOCIAL SECURITY;

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Faina Rasin

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant”), which held that plaintiff was not

disabled within the meaning of the Social Security Act (“the

Act”) and, therefore, was not eligible for disability insurance

benefits under Title II of the Act. Plaintiff alleges she is

disabled under the Act and is thus entitled to receive the

aforementioned benefits.

Before the court is plaintiff’s motion for judgment on

the pleadings (ECF No. 11) and defendant’s cross-motion for

judgment on the pleadings (ECF No. 13). For the reasons set

forth below, plaintiff’s motion is granted, defendant’s motion

is denied, and the case is remanded for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

a. Procedural History

On February 27, 2015, plaintiff Faina Rasin filed an

application for disability insurance benefits. (ECF No. 14,

Administrative Transcript (“Tr.”) at 14, 223-226.)1 The date of

alleged onset of plaintiff’s disability is September 13, 2014.

(Tr. 14, 74.) Plaintiff alleged disability as a result of her

generalized anxiety disorder, panic disorder, major depressive

disorder and mild cognitive disorder. (Id.)

On May 29, 2015, the Social Security Administration

(“SSA”) denied plaintiff’s application stating that she was not

disabled within the meaning of the Act, and therefore, was not

entitled to benefits. (Tr. 73, 74-85.) On July 7, 2015,

plaintiff filed a written request for a hearing before an

Administrative Law Judge (“ALJ”). (Tr. 14, 129-30.) On July

26, 2017, ALJ Rosanne M. Dummer presided over the plaintiff’s

hearing from the National Hearing Center in Alexandria,

Virginia. (Tr. 14, 40.) Plaintiff appeared, along with her

attorney, Charles Weiser, Esq., and testified via

videoconference from the National Hearing Office in New York,

New York. (Tr. 14, 38-64, 184.) Ray O. Burger, an impartial

1 The Certified Administrative Record, is available at ECF No. 14, ECF pp. 1-

860. “Tr.” refers to the correspondingly numbered page in the record.

vocational expert, also provided testimony by phone. (Tr. 14,

59-63.) By a decision dated November 21, 2017, ALJ Dummer

concluded that plaintiff was not disabled. (Tr. 89-104.)

However, plaintiff’s representative had submitted a response to

proffer2 on November 16, 2017. (Tr. 14, 308-10, 311-12.)

Because the ALJ had not considered the response to proffer or

plaintiff’s request for a supplemental hearing, the ALJ vacated

her decision on the same day. (Tr. 14-15, 314.) The ALJ

reopened the case to consider the additional documentation

“under the rules of administrative finality.” (Id.; see also

Hearings, Appeals and Litigation Law Manual (“HALLEX”) I-2-9-

10.)3 Plaintiff was provided a Notice of Revised Decision. (Tr.

14, 313-14.)

On January 9, 2018, the ALJ conducted a supplemental

hearing from Alexandria, Virginia. (Id. at 15, 65-72.)

Plaintiff appeared via telephone, along with her representative,

Harold Skovronsky, Esq., from his office in New York, New York.

(Tr. 14, 37.) Vocational expert Cyndee Burnett was present by

2 Pursuant to HALLEX I-2-7-1 (A), in the context of evidence development, to

“proffer” means to provide an opportunity for a claimant (and appointed

representative, if any) to review additional evidence that has not previously

been seen and that an adjudicator proposes to make part of the record.

Proffering evidence allows a claimant to: comment on, object to, or refute

the evidence by submitting other evidence; or, if required for a full and

true disclosure of the facts, cross-examine the author(s) of the evidence.

3 The revised decision includes a summary of both new and material evidence,

and the arguments and testimony provided by plaintiff and her representative

at the supplemental hearing. The changes in the November 21, 2017 Decision

are incorporated in italics in the revised decision.

videoconference telephone, but was not called upon to testify.

(Tr. 14, 67.) The ALJ agreed to plaintiff’s request to amend to

a closed period of disability from the alleged onset date of

September 13, 2014, to 2016. (Tr. 14, 70.) On January 18,

2018, the ALJ issued a revised decision finding that plaintiff

was not disabled within the meaning of the Act and was thereby

not entitled to benefits. (Tr. 31.)

On March 8, 2018, plaintiff appealed the ALJ’s

decision to the Appeals Council. (Tr. 220-22.) On October 18,

2018, the Appeals Council denied review of the ALJ’s decision,

rendering the ALJ’s decision the final decision in the case.

(Tr. 1; ECF No. 1, Complaint (“Compl.”) at ¶ 4.) On November

19, 2018, plaintiff filed the instant action in federal court.

(See generally Compl.)

b. Relevant Facts

On November 19, 2019, the parties filed a Joint

Stipulation of Relevant Facts, pursuant to Individual Motion

Practice Rule IV(C)(5), which the court incorporates by

reference herein. (ECF No. 13-1, Joint Stipulation of Relevant

Facts (“Stip.”).) Having incorporated the relevant facts, the

court shall address only the medical opinion evidence

specifically germane to the ALJ’s decision.

Medical Opinion Reports

a. Physical Functioning

Medical Opinion of Treating Source Dr. Shusterman, DO

In a medical source statement, dated March 28, 2015,

Dr. Arkadiy Shusterman, DO, (“Dr. Shusterman”), stated that he

had been treating plaintiff since 20074, and listed the treating

diagnoses as hypertension, joint pain, anxiety disorder, and

vertigo. (Tr. 331.) He opined that plaintiff’s current

symptoms included shortness of breath, fatigue, joint pain,

anxiety and panic attacks, and dizziness. (Id.) He expected

plaintiff’s condition to endure for life. (Id.) Dr. Shusterman

noted that, since 2007, plaintiff displayed symptoms of

shortness of breath, as well as anxiety disorder with depressive

episodes. (Id.) Dr. Shusterman added that plaintiff has

decreased range of motion of the cervical spine, and left

shoulder, and tenderness. (Tr. 333.)

Dr. Shusterman opined that plaintiff’s fatigue is

triggered by any sort of physical activity, and usually lasts

for 30-45 minutes. (Id.) He added that after the fatigue

begins, plaintiff must rest for 30-45 minutes before resuming

activity. (Id.) Dr. Shusterman also noted that plaintiff’s

4 Dr. Schusterman ordered x-rays, bloodwork, and other studies of plaintiff’s

medical issues. (Tr. 336, 353, 355, 426 (MRIs for left shoulder, chest); Tr.

337-39 (colonoscopy, symptoms of GERD); Tr. 344-51 (pulmonary/sleep disorder

study); Tr. 595, 674 (neurologist for headaches, neck pain, muscle spasms);

Tr. 604 (electromyography studies); Tr. 598 (referred to hand surgeon for

carpal tunnel syndrome); Ex. 14F (bloodwork and urinalysis).)

depression was primary to her fatigue. (Id.) Plaintiff was

limited physically by dyspnea and palpitations. (Tr. 334.)

Regarding work-related physical activities, Dr.

Shusterman opined that plaintiff can occasionally lift and/or

carry 10-15 pounds for up to 1/3 of the workday, but the maximum

number of pounds she can lift or carry was 10 pounds. (Id.)

Plaintiff was limited to standing or walking for up to two hours

of a day. (Id.) Moreover, Dr. Shusterman noted that plaintiff

could sit for less than six hours a day. (Id.) Dr. Shusterman

opined that plaintiff was limited to pushing and or pulling 10-

15 pounds in her upper extremities. (Id.) Plaintiff was

vocationally limited due to her anxiety and panic attacks.

(Id.)

On July 25, 2017, Dr. Shusterman completed a second

Medical Assessment of Ability to do Work- Related Activities

form. (Tr. 583-85.) Dr. Shusterman assessed plaintiff’s

exertional limitations, and specifically found that plaintiff

could occasionally lift and/or carry less than 10 pounds due to

bilateral carpal tunnel syndrome and cervicalgia. (Tr. 583.)

She could frequently lift less than 10 pounds due to lower back

pain, L4-L5 herniated disc displacing the L5 nerve root, and an

L5-S1 herniated disc. (Id.) Dr. Shusterman further opined that

plaintiff could stand and or walk for a total of about two hours

due to lower back pain. (Tr. 584.) She could sit for less than

two hours, and would need to alternate between sitting and

standing due to lower back pain, herniated discs, and lumbar

radiculopathy. (Id.) Plaintiff was limited in the use of her

upper extremities for pushing and pulling due to carpal tunnel

syndrome and cervicalgia. (Id.) Plaintiff also suffered from

anxiety and panic disorders. (Tr. 585.) She could not stand

more than 25 to 30 minutes at a time. (Id.)

Medical Opinion of Consultative Examiner, Dr. Gearhart, MD

On April 20, 2015, Dr. Shannon Gearhart, M.D., (“Dr.

Gearhart”) performed a consultative internal medicine

examination on the plaintiff. (Tr. 461-70.) Dr. Gearhart noted

that plaintiff had a lot of fluid around her knees and right

shoulder. Dr. Gearhart diagnosed plaintiff with bilateral knee

pain, shoulder pain, neck pain, hypertension, history of bladder

cancer status post resection, lower back pain, vertigo, status

post-surgery for glaucoma, headaches, diet controlled diabetes.

(Tr. 466.)

Dr. Gearhart reported that plaintiff’s gait was

antalgic at first, and then normalized. (Tr. 464.) Dr.

Gearhart noted plaintiff had difficulty standing on her heels,

and toes and squatting, and when rising from her chair. (Id.)

Musculoskeletal examination showed decreased range of motion in

the cervical and lumbar spines, shoulders, hips and knees. (Tr.

465.) Plaintiff’s strength was 4/5 to 5/5 in the upper and

lower extremities, and grip strength was 4/5 bilaterally. (Id.)

Plaintiff had difficulty with her zippers and buttons,

particularly with her left hand. (Id.) Plaintiff showed no

sensory deficits. (Id.) Lumbosacral x-ray showed disc space

narrowing, while the x-ray of the right knee was normal. (Tr.

466.)

Dr. Gearhart reported plaintiff’s prognosis as stable.

(Tr. 466.) Dr. Gearhart opined that plaintiff has marked

restrictions for lifting, carrying, bending, crouching,

repetitive stair climbing and prolonged walking. (Id.) She

further found that plaintiff had moderate restrictions for

pushing, pulling, reaching and prolonged overhead work with the

left arm as well as prolonged sitting and standing. (Id.) Dr.

Gearhart also stated that plaintiff has marked restrictions for

activities requiring fine manipulation or repetitive movements

of both hands. (Id.) Dr. Gearhart cautioned plaintiff to avoid

activities that put her at risk of falling which include

unprotected heights, balance and possible triggers of her

vertigo, and warned her to avoid walking on uneven surfaces.

(Id.) Lastly, Dr. Gearhart opined that plaintiff had moderate

restrictions for squatting and kneeling. (Id.)

Medical Opinion of Medical Expert, Dr. Cruz, M.D.

On October 12, 2017, Dr. Edwin Cruz, M.D., (“Dr.

Cruz”) reviewed the medical evidence on the record. (Tr. 704-

16, 746-57.) Dr. Cruz filled out a Medical Source Statement of

Ability to Do Work-Related Activities (Physical) Questionnaire.

(Tr. 748-753.) Dr. Cruz opined that plaintiff could lift and/or

carry up to 10 pounds, or 11-20 pounds continuously,5 and could

carry 21-50 pounds occasionally. (Tr. 748.) Dr. Cruz found

that without interruption plaintiff could sit for four hours,

stand for two hours, and walk for one hour. (Tr. 749.) In

total for an eight-hour workday, Dr. Cruz stated that plaintiff

could sit, stand or walk for eight hours, and that she does not

require a cane to ambulate. (Id.) Dr. Cruz also found that

plaintiff could frequently reach overhead and otherwise, handle,

finger, feel, and push/pull with both her right and left hands.

(Tr. 750.) Dr. Cruz further found that plaintiff could

continuously operate her foot controls for both her right and

left feet. (Id.)

Dr. Cruz opined that plaintiff could continuously

climb stairs and ramps, balance, stoop, kneel, crouch and crawl,

but could never climb ladders or scaffolds. (Tr. 751.) Dr.

Cruz further found that plaintiff could tolerate operating a

motor vehicle, humidity and wetness, dust, odors, fumes and

pulmonary irritants, extreme cold or heat, vibrations and loud

5 In the Questionnaire, the ability to perform an activity is qualified by the

following terms: “occasionally” means one third of the time, “frequently”

means one third of the time to two thirds of the time, and “continuously”

means over two thirds of the time. (See Tr. 748.)

noise such as that of heavy traffic. (Tr. 752.) Dr. Cruz

concluded that although plaintiff could frequently tolerate

mechanical moving parts, she could not tolerate unprotected

heights. (Id.)

Dr. Cruz found that plaintiff could shop, ambulate

without a wheelchair, crutches or canes, and could walk at a

reasonable pace on uneven or rough surfaces. (Tr. 753.) He

also found that plaintiff could use standard public

transportation, could walk a few steps at a reasonable pace with

the use of a handrail, prepare a simple meal and feed herself,

care for her personal hygiene, and sort, handle or use paper

files. (Id.)

In response to the ALJ’s interrogatories, Dr. Cruz

responded that plaintiff did not meet or equal Listing Nos.

11.02 Epilepsy, 11.08 Spinal Cord Disorders, 11.14 Peripheral

Neuropathy, 9.00 Endocrine Disorders – Diabetes, and 13.22

Urinary Bladder – Carcinoma. (Tr. 747.) Dr. Cruz diagnosed

plaintiff with, inter alia, carpal tunnel syndrome and bladder

nodule. (Tr. 754.) Dr. Cruz opined that plaintiff requires an

ergonometric-friendly work environment. (Tr. 755.) Dr. Cruz

also suggested an independent neurological evaluation because

plaintiff complained of seizures, and there was no imaging

evidence of cerebellar dysfunction. (Tr. 756.)

b. Mental Functioning

Medical Opinion of Treating Source Dr. Yuryev-Golger, MD

On October 16, 2014, Dr. Inna Yuryev-Golger, M.D.,

(“Dr. Yuryev-Golger”), plaintiff’s treating psychiatrist,

completed a medical source statement. (Tr. 428-30.) She

diagnosed plaintiff with generalized anxiety disorder, panic

disorder, major depressive disorder, and mild cognitive

disorder. (Tr. 428.) Dr. Yuryev-Golger concluded plaintiff was

unable to tolerate stress or working with people due to

emotional lability and advised plaintiff to avoid stressful

situations for one month. (Tr. 429.) Plaintiff’s behavioral

health restrictions included: severe anxiety, depression, panic,

dizziness, headaches, and memory deficits, which the doctor

expected would last until the end of October 2017. (Id.) Dr.

Yuryev-Golger stated that she could not tell when plaintiff’s

mental status would improve. (Tr. 430.)

On December 11, 2014, Dr. Yuryev-Golger completed a

medical source statement indicating that plaintiff had severe

anxiety, depression, mood swings, and emotional lability. (Tr.

448.) She opined plaintiff could not concentrate, tolerate

stress, or communicate with people. (Id.)

On February 10, 2015, Dr. Yuryev-Golger completed a

Completed Physician / Therapist Questionnaire. (Tr. 434-37.)

She listed plaintiff’s primary diagnoses as severe generalized

anxiety disorder, and panic disorder, as well as severe major

depressive disorder, and severe bipolar II disorder. (Tr. 434.)

Dr. Yuryev-Golger assessed plaintiff’s GAF score6 at 48, and her

highest reported GAF score at 50. (Id.) Dr. Yuryev-Golger

observed that plaintiff’s speech was productive, and rapid, and

plaintiff’s mood was depressed. (Id.) Further, plaintiff

reported severe anxiety, but denied having hallucinations or

delusions. (Id.) Plaintiff also complained of poor sleep and

poor appetite. (Id.) Dr. Yuryev-Golger opined that plaintiff

had poor judgment and limited insight, but her cognitive

functions were in check, since she could explain proverbs, and

perform a clock-test. (Id.)

Regarding plaintiff’s ability to work, Dr. Yuryev-

Golger opined that plaintiff was unable to work due to emotional

instability, which in turn affects her interactions with people,

ability to perform her duties, and makes her concentration poor.

(Id. at 435.) Dr. Yuryev-Golger further opined that plaintiff’s

poor energy and motivation affects her ability to work. (Id.)

Dr. Yuryev-Golger stated that plaintiff is compliant with her

treatment regimen, going to her appointments, and taking her

medications and is “very upset” that she is “unable to work.”

6 GAF stands for Global Assessment of Functioning, and is a holistic score

graded from 1-100, and assigned by a clinician who assesses an individual’s

psychological, social, and occupational functioning. As set by the Diagnostic

and Statistical Manual of Mental Disorders (“DSM”), a GAF score of 41-50 is

indicative of serious symptoms affecting social interactions and vocational

functioning. (See Pl. Mem. at 4 n.2.)

(Id.) Dr. Yuryev-Golger also wrote that plaintiff was currently

prescribed the following psychotropic medications: Lamictal,

which she had just began, Klonopin to aid with her panic

attacks, and Citalopram to help with her insomnia. (Id.) Dr.

Yuryev-Golger also wrote that returning to work had been

discussed with the plaintiff’s physical therapist, and that

plaintiff is “willing to work” if “she will be able to.” (Id.)

Dr. Yuryev-Golger opined that plaintiff was competent to manage

her own funds. (Id.)

Medical Opinion of Psychological Consultative Examiner, Dr.

Dolan, Psy.D

On April 20, 2015, Dr. Ashley Dolan, Psy.D, (“Dr.

Dolan”) performed a psychiatric evaluation on the plaintiff.

(Tr. 455-59.) Dr. Dolan opined that plaintiff is able to follow

and understand simple instructions, and can perform simple tasks

independently, but has mild limitations performing complex tasks

independently. (Tr. 458.) Dr. Dolan also found that plaintiff

had mild limitations maintaining a regular schedule and in her

concentration and attention. (Id.)

Dr. Dolan further stated that plaintiff was able to

learn new tasks and make appropriate decisions. (Id.) However,

Dr. Dolan found that plaintiff had mild limitations relating

adequately to others and moderate limitations appropriately

dealing with stress. (Id.) Dr. Dolan found that the

plaintiff’s difficulties were caused by her psychiatric

symptoms. (Id.) Dr. Dolan diagnosed plaintiff with panic

disorder, and major depressive disorder. (Id.) Dr. Dolan also

noted the medical diagnoses reported by the plaintiff which

included: high blood pressure, osteoarthritis, gastroesophageal

reflux disease, non-insulin-dependent diabetes, shortness of

breath, vertigo, glaucoma in her left eye, and a cardiac

effusion. (Id.)

Dr. Dolan recommended that plaintiff continue with her

psychological and psychiatric treatments. (Id.) Dr. Dolan

declared plaintiff’s prognosis as fair because she was in

treatment but continued to experience her symptoms. (Id.)

Though the results of the examination were consistent with

psychiatric problems, Dr. Dolan opined that they were not

significant enough to interfere with the plaintiff’s daily

functioning. (Id.)

Medical Opinion of Medical Expert, Dr. Thomas, Ph.D.

On October 20, 2017, Dr. Jack Thomas, Ph.D., (“Dr.

Thomas”) reviewed the evidence in the record. (Tr. 717-31, 736-

45.) Dr. Thomas completed a Medical Source Statement of Ability

to Do Work-Related Activities (Mental) Questionnaire. (Tr. 743-

745.) Dr. Thomas concluded that plaintiff had mild limitations

in understanding and remembering and carrying out simple

instructions. (Tr. 743.) However, Dr. Thomas opined that

plaintiff had moderate limitations in understanding, remembering

and carrying out complex instructions, as well as in her ability

to make judgments for complex work-related decisions. (Id.)

Dr. Thomas further opined that plaintiff had moderate

limitations in interacting appropriately with the public,

supervisors, co-workers, and responding appropriately to usual

work situations and to changes in a routine work setting.

(Id.) Dr. Thomas also found that plaintiff had no further

impairments regarding her ability to concentrate, persist or

maintain pace and in her ability to adapt or manage herself.

(Id.) Dr. Thomas also stated that plaintiff can manage benefits

in her own best interest. (Id.)

Further, in response to the ALJ’s interrogatories, Dr.

Thomas concluded that plaintiff suffered from major depressive

disorder, panic disorder, generalized anxiety disorder, and

bipolar disorder. (Tr. 737.) Dr. Thomas found that plaintiff

had mild limitations in understanding, remembering or applying

information, and adapting or managing herself. (Tr. 738.) Dr.

Thomas also opined that plaintiff had moderate limitations in

interacting with others and in concentrating, persisting or

maintaining pace. (Id.) Dr. Thomas stated that, though the

exhibits seemed to support mild impairment regarding depression

and anxiety, plaintiff’s concentration appeared to be moderately

limited, pointing to Exhibit 4F, page 9, and Exhibit 17F, page

9. (Id.) Dr. Thomas also concluded that plaintiff did not meet

Listing 12.04 or 12.06 because her impairments were “largely in

the mild range.” (Tr. 739.) Dr. Thomas also held that the

evidence does not establish any presence of ‘paragraph C’

criteria. (Id.) Dr. Thomas wrote that though plaintiff had a

brief severe period, she only had “some limitations now that do

not preclude her from work” functioning. (Id.)

STANDARD OF REVIEW

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner's denial of their benefits

"within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow." 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).

A district court may set aside the Commissioner's

decision 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. "Substantial evidence is 'more than a

mere scintilla," and must be relevant evidence that a reasonable

mind would accept as adequate to support a conclusion. Halloran

v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson

v. Perales, 420 U.S. 389, 401 (1971)). If there is substantial

evidence in the record to support the Commissioner's factual

findings, those findings must be upheld. 42 U.S.C. § 405(g).

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).

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. Coim'r, 692

F.3d 118, 122 (2d Cir. 2012).

DISCUSSION

a. Five-Step Analysis for Disability Claims

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under the Act 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.” 42 U.S.C. § 423(d)(1)(A); see also 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 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)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. During

this five-step process, the Commissioner must consider whether

“the combined effect of any such impairment . . . would be of

sufficient severity” to establish eligibility for Social

Security benefits. 20 C.F.R. § 404.1523. Further, if the

Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2).

In steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving . .

. disability.” Burgess, 537 F.3d at 128. In step five, the

burden shifts from the claimant to the Commissioner, requiring

that the Commissioner show that, in light of the claimant’s RFC,

age, education, and work experience, the claimant is “able to

engage in gainful employment within the national economy.”

Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

b. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by 20 C.F.R. §

416.971, the ALJ determined at step one that the plaintiff had

engaged in substantial gainful activity during the relevant

period. (Tr. 17; see 20 C.F.R. §§ 404.1520(b) and 404.1571.)

The ALJ also found, however, that there were continuous twelve-

month periods during which the plaintiff did not engage in

substantial gainful activity. (Tr. 17.) The remaining findings

only address that period. (Id.)

At step two, the ALJ found that plaintiff suffered

from the following severe impairments: history of urinary

bladder nodule, status-post 2012 partial cystectomy, headaches,

mild degenerative disc disease, bilateral carpal tunnel

syndrome, left elbow epicondylitis and partial tear, depressive

disorder and anxiety disorder. (Tr. 17.) Plaintiff was noted

as having major depressive disorder and acute depression, panic

disorder, generalized anxiety disorder, and bipolar disorder.7

(Tr. 17.) See 20 C.F.R. § 404.1520(c). The ALJ also took note

of plaintiff’s non-severe conditions: status-post 2011 bilateral

glaucoma surgery, vertigo, diet-controlled diabetes mellitus

with no evidence of renal, ophthalmologic or vascular

complications, hypertension, slightly elevated blood pressure,

and mild pain in plaintiff’s left shoulder. (Tr. 17.)

At step three, the ALJ considered both plaintiff’s

severe and non-severe physical impairments. See 20 C.F.R. §

404.945(a)(2). The ALJ found that plaintiff did not have a

physical impairment or combination of impairments that met or

medically equaled the medical severity of the listed impairments

under 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17; see

20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.) The ALJ also

found that plaintiff did not “demonstrate the requisite

severity” to meet or equal the listed physical impairments under

Listing No. 1.04, Musculoskeletal System, Disorders of the Spine

because the medical record did not support evidence of an

inability to ambulate effectively absent handheld assistive

devices, or any motor loss, positive straight-leg raising tests,

7 Plaintiff also alleged disability resulting from a seizure disorder. The ALJ

determined that this was not a medically determinable impairment, since there

were no annotations in the medical record regarding seizures, no EEG

documents showing seizures, nor any entries documenting status epilepticus.

(Tr. 17-18.)

spinal arachnoiditis, or lumbar stenosis. (Tr. 18.) Moreover,

the ALJ found that there was no evidence of nerve root

compression, or lumbar spinal stenosis resulting in

pseudoclaudication. (Id.) The ALJ further found that

plaintiff’s impairments did not meet or equal the medical

severity for Listing Nos. 9.00, Endocrine Disorders-Diabetes,

11.02, Epilepsy, 11.08, Spinal Cord Disorders, 11.14, Peripheral

Neuropathy, and 13.22, Urinary Bladder Carcinoma. (Tr. 18.) In

making this finding, the ALJ relied only on the opinion of Dr.

Cruz, a medical expert whom she had requested to review the

medical record. (Id.)

The ALJ also found that plaintiff’s mental impairments

or combination of impairments also did not meet or medically

equaled the medical severity of the listed impairments under 20

C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404,

Subpart P, App’x 1. The ALJ considered Listings 12.04,

Depressive, Bipolar and Related Disorders, and Listing 12.06,

Anxiety and Obsessive-Compulsive Disorders.8 (Id.; Tr. 18.) The

ALJ discussed that this finding is consistent with the opinion

8 To meet Listing 12.04, or 12.06, claimant must satisfy the requirements of

Paragraph A, medical criteria and either Paragraph B, functional criteria of

the listing; or alternatively, Paragraph C, ‘serious and persistent’

criteria. 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing Nos. 12.04, and

12.06. To satisfy “paragraph B” criteria, a mental impairment must result in

at least one extreme or two marked limitations of functioning in:

understanding, remembering or applying information; interacting with others;

concentrating, persisting or maintaining pace; or adapting or managing

themselves.

of Dr. Thomas, a medical expert who reviewed the medical

evidence on the record, and concluded Listings 12.04, and 12.06

were not met “because [plaintiff’s] impairments are largely in

the mild range.”9 (Id.)

The ALJ found that plaintiff has mild limitations in

understanding, remembering or applying information; and adapting

or managing herself, and was only moderately limited with

regards to interacting with others; and concentrating,

persisting or maintaining pace.10 (Tr. 18; see 20 C.F.R.

404.1520(d), 404.1525, 404.1526.)

The ALJ determined that plaintiff has the residual

functional capacity (“RFC”) to perform medium work as defined in

20 C.F.R. § 404.1567(c). (Tr. 19.) The ALJ found that

plaintiff could lift/carry fifty pounds occasionally, and twenty

pounds continuously; sit eight of eight hours, four hours at a

time; stand eight of eight hours, two hours at a time; and walk

eight of eight hours, one hour at a time. (Id.) The ALJ

further found that plaintiff could frequently reach, handle,

finger, feel and push/pull, and work with moving mechanical

9 Though Dr. Thomas noted that plaintiff met the paragraph A criteria for

Listing 12.04, and Listing 12.06, he found that plaintiff’s impairments did

not meet the standard for the paragraph B criteria. (See Tr. 738-39; see

also 20 C.F.R. Part 404, Subpart P, Appendix 1, 112.00A(2)(b).)

10 The court takes note that by Tr. 18, the ALJ stated, “In making this

finding, the ‘paragraph B’ criteria are satisfied,” which would mean that

plaintiff had met either Listing 12.04, or 12.06. The court assumes that the

ALJ’s statement was erroneous, and intended to say that the ‘paragraph B’

criteria were not met.

parts, as well as tolerate loud noise, such as that of heavy

traffic. (Id.)

The ALJ also found that plaintiff could understand,

remember and carry out instructions for routine repetitive type

unskilled work; could sustain attention and concentration for

two-hour periods of time in an eight-hour day. (Tr. 19-20.)

The ALJ determined that plaintiff can tolerate brief and

superficial contact with others, but could not handle

negotiation, arbitration or complex interactions. (Tr. 20.)

However, the ALJ stated that plaintiff should avoid ladders/

scaffolds and unprotected heights, and work that is fast-paced,

or has high production goals/quotas. (Id.)

The ALJ stated that she considered all evidence on the

record in coming to this RFC conclusion, and found that though

plaintiff’s medically determinable impairments could reasonably

be expected to cause the alleged symptoms, plaintiff’s

statements concerning the intensity, persistence and limiting

effects of these symptoms were inconsistent with the rest of the

evidence. (Tr. 23.)

In arriving at her RFC decision concerning plaintiff’s

physical limitations, the ALJ gave “great weight” to Dr. Cruz,

non-examining medical expert who reviewed the objective record

evidence. (Tr. 27.) The ALJ explained that the opinion was

entitled to such weight because it was “reasonably consistent

with the overall record evidence,” and Dr. Cruz is Board

Certified in Internal Medicine, and Critical Care Medicine, and

is an SSA recognized medical expert. (Id.; see also Tr. 732-

35.) However, the ALJ gave “limited weight” to the medical

opinion of consultative examiner Dr. Gearhart, asserting that

the findings of plaintiff having physical “marked limitations”

were made on the basis of a one-time assessment and not

supported by other evidence on the record. (Tr. 25.) The ALJ

also gave the opinion of treating source Dr. Shusterman “little

weight” on the grounds that the findings seemed to be based off

of the plaintiff’s self-reports, and generally inconsistent with

the contemporaneous progress notes, and the opinions of the

medical experts, Dr. Thomas and Dr. Cruz. (Id.)

Regarding plaintiff’s mental functioning, the ALJ

accorded “significant weight” to Dr. Dolan, the consultative

examiner, who found that plaintiff’s panic disorder and

depression did not impede her daily functioning, because Dr.

Dolan’s opinion was substantiated by the overall record. (Id.)

The ALJ only gave “some weight” to Dr. Shapiro, the State agency

psychological consultant, finding his opinion uncorroborated by

the medical evidence. (Id.) ALJ Dummer also accorded “little

weight” to Dr. Yuryev-Golger’s opinion, claiming it was

“inconsistent with the overall record.” (Tr. 28.) Lastly, the

ALJ gave “great weight” to the opinion of non-examining medical

expert, Dr. Thomas, a clinical psychologist engaged in private

practice, as well as a director of clinical development, and SSA

recognized medical expert. (Tr. 29; see also id. at 729-731.)

At step four, the ALJ found that plaintiff was not

able to return to her past relevant work because the demands of

her past jobs exceeded the plaintiff’s residual functional

capacity as determined by the ALJ. (Tr. 29.) A vocational

expert (“VE”) testified that plaintiff has performed past

relevant work as (1) nurse supervisor, light work, (DOT No.

075.167-010; SVP 7), (2) membership solicitor, light work but

medium as performed, semi-skilled, (DOT No. 293.357-022; SVP 4),

and (3) home care nurse, skilled, (DOT No. 075.124-014; SVP 7).

The plaintiff’s current work was described as care director,

sedentary, skilled work (DOT No. 075.117-022; SVP 8). (Tr. 29.)

Lastly, at step five, in determining whether plaintiff

could successfully adjust to other work, the ALJ considered the

plaintiff’s residual functional capacity, age, education and

work experience. (Tr. 29-30.) See Medical-Vocational

Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ

found that plaintiff was defined as an individual closely

approaching advanced age, on the alleged disability onset date.

(Id.) The ALJ determined that the transferability of job skills

is immaterial because the Medical-Vocational Rules support the

finding that plaintiff is “not disabled” whether or not she has

transferrable job skills.11 (Id.) Since the ALJ found the

plaintiff was restricted by additional limitations and unable to

perform the full range of medium work, the ALJ asked the VE

which jobs existed in the national economy for someone of the

plaintiff’s RFC, age, education and work experience. (Tr. 30.)

The ALJ accepted the VE’s response to interrogatories

that the plaintiff was capable of performing unskilled medium

work available in the national economy such as (1) kitchen

helper (DOT No. 318.687-010), (2) hospital cleaner (DOT No.

323.687-010), and (3) janitor sweeper(DOT No. 381.687-018).

(Id.) The ALJ added that notwithstanding plaintiff’s

contentions that she could not perform medium level work, there

are also a significant number of light level jobs available.

(Id.) The VE noted that unskilled light jobs that plaintiff

could perform included: (4) housekeeper, cleaner (DOT No.

323.687-014), (5) stocker (DOT No. 299.667-014), (6) mail clerk

(DOT No. 209.687-026), and (7) officer helper (DOT No. 239.567-

010). (Id.) Based on the aforementioned factors, and the

testimony of the VE, the ALJ concluded that the plaintiff was

11 Pursuant to Medical-Vocational Rule 203.22, an RFC to perform the full

range of medium work necessarily supports a finding of “not disabled.” See

20 C.F.R. § 404, Subpart P, App’x 2, 203.22. Thus, had the ALJ found that

plaintiff was able to perform the full range of medium labor, plaintiff would

have been considered “not disabled” within the grid of the Medical-Vocational

guidelines. Id.

capable making a successful adjustment to other work that exists

in significant numbers in the economy.

Thus, ALJ Dummer concluded that plaintiff was not

disabled within the meaning of the Act. (Tr. 31.)

c. Analysis

Plaintiff contends that the ALJ erred in assigning

little weight to the opinions of the treating physicians, and

erred in assigning great weight to the non-examining medical

experts; and that as a result, ALJ Dummer’s RFC determination is

not supported by substantial evidence in the record. (ECF No.

11, Plaintiff’s Memorandum of Law (“Pl. Mem.”) at 10.) The

Commissioner argues that the ALJ correctly weighed the medical

opinion testimony and her RFC determination is supported by

substantial evidence. (ECF No. 13, Defendant’s Memorandum of

Law in Opposition (“Def. Opp. Mem.”) at 5.)

The court finds that the ALJ erred in not following

the treating physician rule, and by failing to comprehensively

set forth a rationale for the weight assigned to plaintiff’s

treating psychiatrist and treating primary care physician

(“PCP”). In addition, the court finds the ALJ’s RFC finding was

not supported by substantial evidence. In concluding that the

plaintiff could perform a medium exertional level of work, the

ALJ unjustifiably relied, to a large extent, on the medical

opinion of Dr. Cruz, a non-examining medical expert who reviewed

the record, and did not duly consider the rest of the objective

medical evidence of record as well as the corroborating medical

opinions of Dr. Shusterman, plaintiff’s PCP, and Dr. Gearhart,

the consultative physical examiner. Thus, the court finds the

ALJ committed legal error in her decision and orders a remand

for further findings on these grounds.

1. The ALJ Erred in Weighing the Treating Physicians’

Opinions.

Under the treating physician rule, a “treating

source’s opinion on the issue 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 case record.’”

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)); 20 C.F.R.

§§ 404.1527(c)(2).12 See Molina v. Colvin, No. 13-CV-4701, 2014

WL 3925303, at *2 (S.D.N.Y. Aug. 7, 2014) (finding the opinion

of a treating physician “need not be given controlling weight

where [it is] contradicted by other substantial evidence in the

record.”).

12 Because plaintiff’s application for disability and disability insurance

benefits was filed before March 27, 2017, the recent changes reflected in

C.F.R. § 404.1520c do not apply, and under C.F.R. § 404.1527(a)(2)(c), the

treating source’s opinion is generally assigned added or possibly controlling

weight.

An ALJ who does not accord controlling weight to the

treating physician’s medical opinion 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 amount

of medical evidence in support of the treating physician's

opinion; (iii) the consistency of the opinion with the record as

a whole; and (iv) whether the opinion is from a specialist.”

Estrella v. Berryhill, 925 F.3d 90, 95 (2d. Cir. 2019)

(quoting Burgess, 537 F.3d at 128); see 20 C.F.R. §

404.1527(c)(2); see also Adukpo v. Berryhill, 19-cv-2709 (BMC)

2020 WL 3410333, at *1 (E.D.N.Y. Jun. 22, 2020).

“The ALJ must then ‘comprehensively set forth his

reasons for the weight assigned to a treating physician’s

opinion.’” Cichocki v. Astrue, 534 F. Appx. 71, 74 (2d Cir.

2013) (quoting Burgess, 537 F.3d at 129). The regulations also

require that the ALJ set forth “good reasons” for not crediting

the opinion of the treating provider. Cervini v. Saul, 17-CV-

2128 (JMA) 2020 WL 2615929 at *5 (E.D.N.Y. May 21, 2020) (citing

Schaal, 134 F.3d 496, 503 (2d Cir. 1998)). Good reasons

“reflect in substance the factors as set forth in [Section]

404.1527(d)(2), even though the ALJ declines to examine the

factors with explicit reference to the regulation.” Abate v.

Comm’r, 18-CV-2040 (JS), 2020 WL 2113322, at *4 (E.D.N.Y. May 4,

2020); Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013)

(“We require no such slavish recitation of each and every factor

where the ALJ's reasoning and adherence to the regulation are

clear.”). Further, “[t]he failure to provide ‘good reasons for

not crediting the opinion of a claimant's treating physician is

a ground for remand.’” Greek, 802 F.3d at 375 (quoting Burgess,

537 F.3d at 129-30).

i. Dr. Shusterman, Treating Physician

In discussing the weight assigned to Dr. Shusterman’s

opinion, ALJ Dummer stated as follows:

The undersigned affords the opinions of Dr. Shusterman

little weight. The findings appear to be based on the

claimant’s self-reports. While the claimant was

“limited” because of anxiety and panic attacks and

stated depression was “primary” to fatigue, the medical

expert Dr. Thomas, Ph.D., did not find this opinion

supported by the record. Dr. Thomas noted that the

claimant functioned with medication and weekly

counseling (Ex. 22F/6). Physically, the claimant saw Dr.

Shusterman for routine primary care for chronic

conditions and acute care as necessary (Ex. 13F/14F).

Progress notes do not substantiate work-precluding

functional limitations (i.e., fatigue with “any type of

physical activity over 30-45”). Regarding the claimant’s

shoulder impairment, a neurologist treated her with left

shoulder steroid injection and she could follow up as

needed (Ex. 16F/18), inconsistent with disabling

limitations. On consultative physical examination, she

had 4/5 to 5/5 strength in the upper and lower

extremities. Grip strength was 4/5 bilaterally with

intact and finger dexterity (Ex. 5F). EMG showed severe

bilateral carpal tunnel syndrome (Ex. 16F/8,9), treated

with median nerve block injections and wrist splints.

The claimant reported “good relief” following a wrist

injection (Ex. 17F/2). The overall record evidence is

consistent with a range of medium level work, as per the

medical expert Dr. Cruz (Ex. 23F).13

For the reasons set forth below, the court finds that

the ALJ erred in her failure to assign controlling weight to Dr.

Shusterman’s opinion, or failing that, to provide “good reasons”

for the weight assigned to the opinion. Though the ALJ

acknowledged that Dr. Shusterman was the treating physician,

(Tr. 21, 25), she did not consider most of the Burgess factors,

such as the length, frequency, nature or extent of Dr.

Shusterman’s relationship with the plaintiff. (Tr. 25.)14

To the extent that the Commissioner asserts that Dr.

Shusterman’s opinions were properly given “little weight”

because they were based on plaintiff’s self-reported

limitations, the court does not agree. (Def. Opp. Mem. at 6;

Tr. 25.)15 The ALJ did not explain why she concluded that Dr.

Shusterman’s opinion was based on plaintiff’s own subjective

complaints. Furstenau v. Saul, No. 6:19-cv-03201- NKL 2020 WL

13 Tr. 25 (emphasis added).

14 Though the ALJ discussed the record, and plaintiff’s primary care at the

hands of Dr. Shusterman in extensive detail, Tr. 20-24, the ALJ did not

specifically mention the factors such as frequency, length, extent and nature

of treating relationship in relation to her determination of the weight to

assign to Dr. Shusterman’s opinion, which constitutes error, and necessitates

a remand.

15 See Def. Opp. Mem. at 6 (citing Lewis v. Colvin, 548 F. App’x 675, 678 (2d

Cir. 2013) (affirming findings that a treating physician’s opinion was not

entitled to controlling weight because it was based on the claimant’s

subjective complaints); Roma v. Astrue, 468 F. App’x 16, 19 (2d Cir. 2012)

(affirming ALJ’s decision to give less weight to a doctor’s opinion because

it was based largely upon the subjective statements of the claimant, whom the

ALJ reasonably found to be less than fully credible)).

3287947, at *5 (W.D. Mo. Jun. 18, 2020) (finding the ALJ

improperly denied controlling weight to a treating physician’s

opinion where the ALJ did not explain how the opinion was

largely based on claimant’s subjective complaints).

Additionally, even if Dr. Shusterman had relied on plaintiff’s

subjective statements, “[a] patient's report of complaints,

or history, is an essential diagnostic tool.” Green-Younger v.

Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (“The fact that Dr.

Helfand also relied on Green-Younger’s subjective complaints

hardly undermines his opinion as to her functional

limitations.”); see also McCarty v. Astrue, No. 5:05-CV-953,

2008 WL 3884357, at *6 (N.D.N.Y. Aug. 18, 2008) (“[The] reliance

on Plaintiff’s subjective complaints is not a valid basis for

rejecting his opinion.”); 20 C.F.R. § 404.945(a)(3).16

Furthermore, though the ALJ claimed that Dr.

Shusterman’s opinion was entitled to less weight because it is

inconsistent with the record, the ALJ failed to discuss the

portions of the record that supported Dr. Shusterman’s opinions.

“While the ALJ is not required to explicitly mention each of the

factors or every shred of evidence in the record, the failure to

consider the record as a whole, or provide ‘good reasons’ for

16 Regarding the RFC evaluation, the regulations state as follows: “We will

also consider descriptions and observations of your limitations from your

impairment(s), including limitations that result from your symptoms, such as

pain, provided by you, your family, neighbors, friends, or other persons.” 20

C.F.R. § 404.945(a)(3).

according lesser weight constitutes error.” Destina v.

Berryhill, No. 2:17-cv-02382 (ADS) 2018 WL 4964103, at *7

(E.D.N.Y. Oct. 15, 2018). Upon an independent review of the

record, the court finds that the ALJ erred in assigning little

weight to Dr. Shusterman’s opinions, because it is not evident

from the ALJ’s decision that the ALJ duly considered the entire

record.

The ALJ stated that Dr. Shusterman’s “[p]rogress

notes do not substantiate work-precluding functional

limitations,” (Tr. 25), despite the fact that Dr.

Shusterman opined that plaintiff could only occasionally

lift or carry 10-15 pounds for up to 1/3 of the workday,

and the maximum number of pounds that plaintiff could lift

or carry was 10 pounds. (Tr. 334.) Further, Dr.

Shusterman’s treatment notes regularly state that plaintiff

reported shoulder pain and evidenced her carpal tunnel

syndrome issues as well. (Tr. 600-03, 606.) Moreover,

objective medical evidence in the record, including two

MRIs, revealed plaintiff’s continued issues with her

rotator cuff, tendinitis and “mild bursitis.” (Tr. 353,

355.) Other objective testing in the record demonstrated

bilateral median nerve compression at plaintiff’s elbows

indicating bilateral carpal tunnel syndrome, moderate to

severe ulnar neuropathy at the left elbow, mild ulnar

neuropathy at the right elbow, and chronic C6 radiculopathy

bilaterally. (Tr. 287 (plaintiff’s ultrasound showing

same), 479.)

In finding that Dr. Shusterman’s opinions were

inconsistent with his progress notes, the ALJ appears to have

relied on medical records that “record, diagnose, and address

symptoms” rather than records that “assess functional

abilities.” Abate, 2020 WL 2113322, at *5 (quoting Newson v.

Comm'r of Soc. Sec., No. 17-CV-2718, 2019 WL 6173400, at *2

(E.D.N.Y. Nov. 20, 2019). Therefore, it is not clear that Dr.

Shusterman’s treatment notes and opinions are in fact

inconsistent.

Plaintiff’s limited lifting/carrying ability is

further corroborated by treatment records dated January 11, 2017

from orthopedic specialist, Dr. Patel, who noted that plaintiff

suffered from “severe” pain in her left elbow, numbness in the

4th and 5th fingers of both hands, neck pain, and opined that

plaintiff “cannot even lift light objects” and the “[p]ain is

sharp [and] getting worse.” (Tr. 655.) See Rolon v. Comm'r of

Soc. Sec., 994 F.Supp.2d 496, 508 (S.D.N.Y. 2014) (“An ALJ

should ‘generally give more weight to the opinion of a

specialist about medical issues related to his or her area of

specialty than to the opinion of a source who is not a

specialist.’”) (citing 20 C.F.R. §§ 404.1527(c)(5),

416.927(c)(5)).

Additionally, Dr. Leybel, plaintiff’s neurologist,

detailed in his progress reports plaintiff’s continued severe

shoulder pain, as well as her issues with her carpal tunnel

syndrome. (Tr. 674-75.) Though the ALJ claimed that plaintiff

admitted “good relief” from the steroid injections in her wrist,

Dr. Leybel noted that even with repeated injections, plaintiff

suffers from residual numbness and pain. (Tr. 677.)

Additionally, plaintiff continued to suffer from carpal tunnel

syndrome, along with symptoms of “pain and numbness” has

returned in the past, even post-treatment. (Tr. 683.)

Furthermore, Dr. Gearhart, the consultative examiner

also found that plaintiff suffered from “marked limitations” for

“lifting, carrying, bending, . . . prolonged walking” and

activities that require “fine manipulation” and “repetitive

movements.” (Tr. 466.) The ALJ gave “limited weight” to Dr.

Gearhart’s opinion, asserting that “the record does not support

that the claimant is so seriously limited,” and it was based on

a “one-time evaluation.” (Id.) Yet, in concluding that

plaintiff could work a job of medium exertional level, the ALJ

referenced some of Dr. Gearhart’s other findings that plaintiff

had good upper body strength, and bilateral grip strength to

support her conclusion. (Tr. 25; see Tr. 460-70.)

The court thus finds that the ALJ cherry-picked parts

of Dr. Gearhart’s medical opinion that supported her conclusion,

while ignoring the portions of the opinion that did not further

corroborate her findings. See Artinian v. Berryhill, No. 16-cv-

4404, 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018) (“Federal

courts reviewing administrative social security decisions decry

‘cherry picking’ of relevan[t] evidence, which may be defined as

inappropriately crediting evidence that supports administrative

conclusions while disregarding differing evidence from the same

source.”) (collecting cases). The court is cognizant that an

ALJ may “only credit portions of a medical source opinion, or

weigh different parts of the opinion differently,” however, the

ALJ must always “provid[e] sound reasons for the discrepancy.”

Destina, 2018 WL 4964103, at *7. Here, the ALJ did not provide

any reasons at all for the selective cherry-picking of Dr.

Gearhart’s opinion. See 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) (An “ALJ may not ‘pick and choose evidence which favors a

finding that the claimant is not disabled.’ ”).

The ALJ also erred in assigning “great weight” to Dr.

Cruz, non-examining medical expert who merely gave his opinion

upon an objective review of the record. (Pl. Mem. at 14.) The

general rule of the Second Circuit has been that the opinion of

“a non-examining medical expert who has not personally examined

a claimant is afforded little weight.” Destina, 2018 WL

4964103, at *7 (citing Vargas v. Sullivan, 898 F.2d 293, 295-96

(2d Cir. 1990); Maldonado v. Comm'r of Soc. Sec., No. 12-CV-

5297, 2014 WL 537564, at *14 (E.D.N.Y. Feb. 10, 2014) (“Not

having examined [the plaintiff], [a non-examining medical

expert’s] opinion cannot constitute substantial evidence and

normally may not override a treating source’s opinion unless it

is supported by sufficient medical evidence in the record.”).

Here, Dr. Cruz’s opinion conflicted with the weight of

the evidence in the record, and as such, the court finds that

the ALJ erred in assigning his opinion great weight. See 20

C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a

medical opinion is with the record as a whole, the more weight

we will give to that medical opinion.”).

Specifically, Dr. Cruz opined that plaintiff could

lift or carry up to 11-20 pounds continuously,17 and could carry

21-50 pounds occasionally. (Tr. 748.) As discussed above,

these conclusions are wholly unsupported by the bulk of the

evidence in the administrative record, including the opinions

and progress notes of Dr. Shusterman, Dr. Gearhart, and the

17 In the Questionnaire, claimant’s ability to do an activity is defined by

the following terms: “occasionally” means one third of the time, “frequently”

means one third of the time to two thirds of the time, and “continuously”

means two thirds of the time. (See Tr. 748.)

plaintiff’s hand specialist and neurologist, all of whom, unlike

Dr. Cruz, regularly saw and treated the plaintiff. (Tr. 479-87,

600-03, 606, 655-56, 662, 665, 674-75, 677, 683.)

Accordingly, the court finds that the ALJ improperly

gave Dr. Shusterman less than controlling weight. On remand,

the ALJ is directed to comprehensively weigh the regulatory

factors and consider the record in its entirety to determine the

weight of Dr. Shusterman’s opinion. If the ALJ determines that

Dr. Shusterman’s opinion is not entitled to controlling weight,

the ALJ “must nonetheless articulate a basis for the alternative

weight assigned.” Knight v. Comm’r, 18-CV-2474 (KAM) 2020 WL

3085778 at *7 (E.D.N.Y. Jun. 10, 2020).

ii. Dr. Yuryev-Golger, Treating Psychiatrist

Plaintiff also asserts that the ALJ should have

assigned greater weight to the opinion of Dr. Yuryev-Golger,

plaintiff’s treating psychiatrist. (Pl. Mem. at 16.) The court

agrees with plaintiff that the ALJ erred in failing to

adequately discuss why this treating source was afforded “little

weight,” even though Dr. Yuryev-Golger was a specialist. The

court remands for further findings on this additional basis.

“Remand is warranted when the ALJ has not indicated

what weight, if any, was assigned based on the fact that the

medical opinion was from a specialist.” Barrett v. Berryhill,

286 F. Supp. 3d 402, 428 (E.D.N.Y. 2018) (citing

Clark v. Colvin, 2016 WL 1254024, at *10 (E.D.N.Y. March 31,

2016) (collecting cases)); Cirelli v. Comm’r,

1:19-cv-02709 (ER) (SDA) 2020 WL 3405707, at * (S.D.N.Y. May 7,

2020) (“As an initial matter, because Dr. Burcescu was a

treating psychiatrist, the ALJ was required to give his opinion

as to the nature and severity of Cirelli’s impairments

controlling weight . . .”).

The ALJ merely stated that she gave Dr. Yuryev-

Golger’s opinions “little weight” because they were

“inconsistent with the record” and because her designated

treatment was “conservative” and, as such, did not preclude

work. (Tr. 28.) Though Dr. Yuryev-Golger’s opinion may not

necessarily be entitled to controlling weight, the court finds

that the ALJ failed to consider the Burgess factors, such as the

length, frequency, nature or extent of Dr. Yuryev-Golger’s

relationship with the plaintiff, or provide a rationale

supporting the weight given. (Tr. 28; see Greek, 802 F.3d at

375; Burgess, 537 F.3d at 128; Balodis v. Leavitt, 704 F. Supp.

2d 255, 268 (E.D.N.Y. 2010) (citing Risitano v. Comm'r of Soc.

Sec., No. 06–CV–2206(FB), 2007 WL 2319793, at *5 (E.D.N.Y. Aug.

9, 2007) (remanding case and directing the ALJ to “identify the

evidence [the ALJ] did decide to rely on and thoroughly explain

... the reasons for his decision” if the ALJ did not intend to

rely on the opinions of plaintiff’s treating physicians);

Torregrosa v. Barnhart, No. CV–03–5275(FB), 2004 WL 1905371, at

*6 (E.D.N.Y. Aug. 27, 2004) (remanding because “(1) there is a

reasonable basis to doubt whether the ALJ applied the correct

legal standard in weighing the opinions of [the treating

physicians], and (2) the ALJ failed to give good reasons for

the weight, or lack thereof, given to those opinions”).)

Further, the ALJ’s failure to take into account the length of

the treatment relationship and frequency of the examination, and

thereby any “evidence supporting its satisfaction, is of

heightened importance” where the claimed impairments include:

“depression, bipolar disorder, panic disorder, and generalized

anxiety disorder,” as is the case here. Abate, 2020 WL 2113322,

at *4 (internal citations omitted); see Tr. 434 (detailing

plaintiff’s diagnoses). Accordingly, the court remands for the

ALJ to comprehensively lay out the reasoning for the weight

assigned to Dr. Yuryev-Golger’s opinion.

The court also finds that the ALJ did not articulate a

reasoned basis for not giving the opinions of plaintiff’s

treating psychiatrist “controlling weight.” Cervini, 2020 WL

2615929 at *5. Though the ALJ asserted that Dr. Yuryev-Golger’s

moderate treatment did not preclude any work functionality, (Tr.

28), the Second Circuit has stated that “the opinion of the

treating physician should not be discounted merely because he

has recommended a conservative treatment regimen.” See Shaw v.

Chater, 221 F.3d 126, 134 (2d Cir. 2000); see also Barrett v.

Berryhill, 286 F. Supp. 3d 402, 428 (E.D.N.Y. 2018) (holding the

treating physician opinion should not have been rejected merely

because his choice of treatment was conservative). Thus, the

court does not find persuasive the fact that Dr. Yuryev-Golger

did not adopt a more aggressive course of treatment.

The ALJ improperly discounted Dr. Yuryev-Golger’s

opinion because it was allegedly unsupported by the record.

(Tr. 28.) The court finds the ALJ’s determination unavailing

because Dr. Yuryev-Golger’s progress notes “contain only raw

medical evidence from each particular visit,” see Abate, 2020 WL

2113322, at *5 (E.D.N.Y. May 4, 2020), noting plaintiff’s

ability to do her own “laundry, drive safely, and independently

shop, ambulate, manage finances, operate a telephone, self-feed,

and toilet,” (Tr. 514, 522, 562) but “do not assess

[plaintiff’s] ability to engage in competitive work on a regular

and continuing basis despite” her impairments. Abate, 2020 WL

2113322, at *5 (quoting Stein v. Colvin, No. 15-CV-6753, 2016 WL

7334760, at *4 (W.D.N.Y. Dec. 19, 2016)); see 20 C.F.R. §

416.945(c) (the SSA will evaluate the claimant’s ability to work

on a “regular and continuing basis” when assessing her mental

abilities).

The ALJ erred in assigning “great weight” to the

opinion of Dr. Thomas, a medical expert who did not personally

examine the plaintiff, and “significant weight” to the opinion

of Dr. Dolan, a consultative examiner, in finding that plaintiff

did not have mental impairments which precluded work-

functioning. (Tr. 27, 29.)

As noted above, “In the context of evaluating a mental

disability, ‘it is improper to rely on the opinion of a non-

treating, non-examining doctor because the inherent subjectivity

of a psychiatric diagnosis requires the physician rendering the

diagnosis to personally observe the patient.’” Maldonado, 2014

WL 537564, at *15 (quoting Fofana v. Astrue, No. 10-CV-0071,

2011 WL 4987649, at *20 (S.D.N.Y. Aug. 9, 2011)). Thus, “the

conclusions of a physician who merely reviews a medical file and

performs no examination are entitled to little, if any, weight.”

Id. In addition, the Second Circuit has cautioned against

reliance on “the findings of consultative physicians after a

single examination” especially where, as here, plaintiff alleges

mental health disability. Estrella, 925 F.3d at 98 (internal

quotation marks and citation omitted). See also Selian v.

Astrue, 708 F.3d 409, 419 (2d Cir. 2013).

As plaintiff correctly notes, in the context of mental

health, it is particularly important to consider the treating

physician’s opinion because it provides a comprehensive long-

term history, rather than a “one-time snapshot of a claimant’s

status which may not be indicative of her longitudinal mental

health.” (Pl. Mem. at 15 (citing Estrella, 925 F.3d at 95).)

See also Noviello v. Comm’r, 18-CV-5779 (PKC), 2020 WL 353152,

at *7 (E.D.N.Y. Jan. 21, 2020); Pervaiz v. Comm’r, 18-CV-1283,

2019 WL 6875232, at *6 (W.D.N.Y. Dec. 17, 2019) (finding that

the ALJ erred by relying exclusively on the opinion of a

physician who examined the plaintiff only once, and a non-

examining consultant). Accordingly, the court finds that the

ALJ committed legal error in relying on Dr. Thomas, a non-

examining medical expert while discounting the opinion of

plaintiff’s treating psychiatrist.

Thus, the court finds the ALJ failed to satisfy the

requirements of the treating physician rule with respect to Dr.

Yuryev-Golger’s medical opinion evidence and committed legal

error in relying instead on Dr. Thomas’s and Dr. Dolan’s

opinions. Accordingly, the court orders a remand for the ALJ to

properly evaluate all the medical opinions in accordance with

the SSA regulations. See 20 C.F.R. § 404.1527(d)(2).

2. The ALJ’s RFC Determination Is Not Supported by Substantial

Evidence.

Plaintiff also asserts that the ALJ’s RFC

determination, that plaintiff could perform work at a medium

exertional level, is “farfetched on its face” and “without

evidentiary support.” (Pl. Mem. at 14.) Because the court

agrees that the ALJ’s RFC determination was not supported by

substantial evidence, the court remands for further findings on

this point as well.

The Social Security regulations define “medium work”

as “work that requires an individual to lift up to 25 pounds

frequently (up to 5 and half hours a day), and to lift up

to 50 pounds . . . occasionally (up to 2 and half hours a day).”

Arias v. Saul, 18-cv-1296 (KAM), 2020 WL 1989277, at *6

(E.D.N.Y. Apr. 25, 2020) (citing 20 C.F.R. §§ 404.1527,

416.967); see also Trepanier v. Comm’r, 725 F. App’x 75, 78 (2d

Cir. 2020) (citing 20 C.F.R. § 404.1567(c)) (summary order).

In Arias, this court held that the ALJ erred in

finding that the plaintiff, a woman in her late fifties, who

weighed 160 pounds, and was diagnosed with osteoarthritis and

tendonitis in her right dominant shoulder, was capable of

performing work at the medium exertional level. Arias, 2020 WL

1989277, at *8. Similarly, the plaintiff, at the time of

hearing, was a 53-year-old woman, who stood five feet and four

inches tall, and weighed 155 pounds. (Tr. 42.) As discussed

above, considering all the evidence on the record, including

plaintiff’s shoulder pain,(Tr. 600-03, 606, 674-75), the MRIs

detailing her issues with her rotator cuff, (Tr. 353, 355),

along with her continued numbness in her hands, (Tr. 481, 593,

604, 655, 665, 700-03), and “severe” pain in her elbow, (Tr.

655-56), it is highly improbable that the plaintiff would be

able to lift/ carry up to 50 pounds for 2 hours daily, or even

20 pounds for more than 4 hours daily.

To the extent that plaintiff contends she cannot even

perform light work,18 the court cannot agree. Plaintiff contends

that the treating physician found that she cannot even meet the

requirements for sedentary work, which the court finds has no

basis in the record. (See Tr. 334, 583(noting that plaintiff

could frequently carry 10 pounds)).

For the reasons set forth above, the court finds that

the ALJ’s RFC determination that plaintiff could perform medium

level work was not supported by substantial evidence and remands

on this basis as well.

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

18 Under the regulations, light work is defined as “involves lifting no more

than 20 pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds.” See 20 C.F.R. § 404.1567(b).

the ALJ has applied an improper legal standard.” Rosa, 168 F.3d

at 82–83 (quoting Pratts, 94 F.3d at 39) (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. If the record

before the court provides “persuasive proof of disability and a

remand for further evidentiary proceedings would serve no

purpose,” the court may reverse and remand solely for the

calculation and payment of benefits. Parker v. Harris, 626 F.2d

225, 235 (2d Cir. 1980); see also Kane v. Astrue, 942 F. Supp.

2d 301, 314 (E.D.N.Y. 2013).

Because the court finds that the ALJ failed to apply

the treating physician rule, erred in assigning great and

significant weight to one-time and non-examining physicians, and

erred in arriving at her RFC determination, which was not

supported by substantial evidence, the court GRANTS plaintiff’s

motion, DENIES defendant’s cross-motion, and REMANDS this case

for further proceedings consistent with this decision. The

Clerk of Court is respectfully directed to enter judgment in

favor of plaintiff and close this case.

SO ORDERED.

Dated: July 13, 2020

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge