Marazzo v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSEPHINE MARAZZO,

Plaintiff,

-against- MEMORANDUM AND ORDER

19-CV-0552 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Josephine Marazzo (“plaintiff”) appeals the

final decision of the Commissioner of Social Security

(“defendant”), which found plaintiff not disabled and thus not

entitled to disability insurance benefits (“DIB”) under sections

216(i) and 223(d) of the Social Security Act (“the Act”).

Before the court are the parties’ cross-motions for judgment on

the pleadings. For the reasons set forth below, plaintiff’s

motion for judgment on the pleadings is GRANTED, the

Commissioner’s motion for judgment on the pleadings is

respectfully DENIED, and this action is REMANDED for further

proceedings consistent with this Memorandum and Order.

BACKGROUND

The factual and procedural background leading to this

action is set forth in the administrative record.

(Administrative Transcript (“Tr.”), ECF No. 21.) The court has

reviewed the parties’ respective motions for judgment on the

pleadings and the administrative record. The parties entered

into a joint stipulation of facts on January 8, 2020, detailing

Ms. Marazzo’s medical history and Ms. Marazzo’s testimony at her

administrative hearing, which the court hereby incorporates by

reference. (See Joint Stipulation of Facts (“Stip.”), ECF No.

20-1.)

I. Procedural History

Plaintiff filed an application for disability

insurance benefits on September 14, 2015, alleging disability

beginning July 25, 2011 due to severe impairments of cervical

and lumbar spine sprain/strain, status post arthroscopic surgery

to the left shoulder, right knee sprain, anxiety disorder, and

depression. (Tr. 17, 240-41.) Plaintiff’s claim was denied on

March 22, 2016. (Id. 88-99.) On March 28, 2016, Ms. Marazzo

requested a hearing before an administrative law judge (“ALJ”).

(Id. 100.) On November 15, 2017, Marazzo appeared with counsel

and testified via video conference before ALJ Hilton R. Miller

(“ALJ Miller”). (Id. 39-70.) At the hearing, ALJ Miller heard

testimony by plaintiff, Sharon Kahn, a medical expert, and

Michael Smith, a vocational expert. (Id.)

On January 29, 2018, ALJ Miller issued a decision

affirming the SSA’s determination that Marazzo did not qualify

as disabled within the meaning of the Act and, as a result, was

not entitled to benefits. (Id. 12-38.) On February 17, 2018,

plaintiff appealed ALJ Miller’s decision to the Appeals Council.

(Id. 213-36.) On November 27, 2018, the Appeals Council denied

Marazzo’s request, making ALJ Miller’s decision the final

decision of the Commissioner. (Id. 1-6.) This action followed.

(See generally Complaint (“Compl.”), ECF No. 1.)

STANDARD OF REVIEW

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

v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (quoting Shaw v.

Chater, 221 F.3d 126, 131 (2d Cir. 2000)).

“Substantial evidence means ‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id. (quoting

Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). 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) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive . . . .”). 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 Commissioner’s Five-Step Analysis of Disability Claims

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, 221 F.3d at 131–32. 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

prescribe a five-step sequential evaluation process for

determining whether a claimant meets the Act’s definition of

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

is essentially as follows:

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

not working, (2) that [s]he has a ‘severe impairment,’ (3)

that the impairment is not one [listed in Appendix 1 of the

regulations] that conclusively requires a determination of

disability, and (4) that the claimant is not capable of

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

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

of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335

F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).

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

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

five-step framework established in the SSA regulations.”

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

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

is a nonadversarial proceeding, the ALJ generally has an

affirmative obligation to develop the administrative record.” Id.

(internal quotation marks omitted). “The burden falls upon the

Commissioner at the fifth step of the disability evaluation

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

past relevant work [and considering her 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).

II. The ALJ’s Application of the Five-Step Analysis

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the SSA

regulations, the ALJ made the following determinations.

At step one, the ALJ determined that plaintiff had not

engaged in substantial gainful activity from her alleged onset

date of July 25, 2011 to the date she was last insured on

December 31, 2017. (Tr. 17.)

At step two, the ALJ determined that plaintiff had the

severe impairments of cervical spine sprain/strain, lumbar spine

sprain/strain, left shoulder status post-arthroscopic surgery,

right knee sprain, anxiety disorder, and depression. (Id.) The

ALJ noted that plaintiff went to the emergency room in September

2017 for right wrist pain, where an x-ray revealed an acute

avulsion fracture and adjacent soft tissue swelling; plaintiff

was discharged with a splint, and did not require further

treatment for the injury. (Id. 18.) The ALJ thus concluded

that plaintiff’s right wrist impairment was not severe since it

did not meet the durational requirement of 20 C.F.R. 404.1509.

(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 one of the listed impairments

of 20 C.F.R. Part 404, Subpart P, App’x 1. (Id.) Specifically,

ALJ Miller considered plaintiff’s impairments under listings

1.02 (major dysfunction of a joint), 1.04 (disorders of the

spine), 12.04 (depressive, bipolar and related disorders), and

12.06 (anxiety and obsessive-compulsive disorders). (Id.) ALJ

Miller determined that Ms. Marazzo did not meet listing 1.02 for

major joint dysfunction because there was no medical evidence of

gross anatomical deformity and chronic joint pain/stiffness with

signs of limited or abnormal joint motion, or imaging that

revealed joint space narrowing, bony destruction, or ankylosis;

further, there was no evidence that plaintiff was unable to

ambulate or unable to perform fine and gross movements

effectively. (Id. 20.) ALJ Miller determined that Ms. Marazzo

did not meet listing 1.04 for spinal conditions because the

medical evidence did not indicate nerve root compression, spinal

arachnoiditis, or lumbar spinal stenosis, and because plaintiff

could ambulate effectively. (Id.) ALJ Miller determined that

Ms. Marazzo did not meet listings 12.04 or 12.06 for mental

disorders because Ms. Marazzo had only moderate limitations in

understanding, remembering, and applying information, in

interacting with others, and in concentrating, persisting, and

maintaining pace, and mild limitations in adapting and managing

herself—as opposed to marked or extreme limitations in these

areas of functioning. (Id. 18-19.) Moreover, ALJ Miller found

no evidence that plaintiff received medical treatment, mental

health therapy, psychosocial supports, or a highly structured

setting that diminished her symptoms, or that plaintiff had only

a marginal capacity to adapt to changes in her environment.

(Id. 19.)

The ALJ next concluded that plaintiff had the residual

functional capacity (“RFC”) to perform sedentary work. (Id.

20.) To this RFC, the ALJ added several exertional limitations,

including: occasionally climbing ramps and stairs; never using

ladders, ropes, or scaffolds; occasionally balancing, kneeling,

crouching, and squatting; never crawling; never reaching

overhead with the left upper extremity; never manipulating with

the lower extremities; never working with hazards such as

dangerous machinery, motor vehicles, unprotected heights,

vibrations, or temperature extremes, and; switching from sitting

to standing every thirty minutes. (Id.) The ALJ also added

several non-exertional limitations, including: performing

simple, routine, and repetitive tasks and some moderately

complex tasks that can be explained (SVPs 1-4); only

occasionally changing routine, and; no more than frequent

contact with others. (Id.)

In arriving at this RFC, the ALJ accorded varying

weight to the medical opinions, specifically: “great weight” to

the opinion of Dr. P. Kennedy-Walsh, Ph.D, a non-examining,

State agency psychological consultant; “some weight” to the

opinion of Dr. Christopher Perez, M.D., one of plaintiff’s

treating physicians for her physical impairments; “some weight”

to the opinion of Dr. Stanley Soran, M.D., a consultative

examiner evaluating plaintiff’s physical impairments; “some

weight” to the opinion of Dr. Steven Zeretsky, M.D., a

consultative examiner evaluating plaintiff’s physical

impairments; “some weight” to the opinion of Dr. Ilana Reich,

Ph.D, one of plaintiff’s treating physicians for her mental

impairments; “some weight” to the opinion of Dr. Anthony

Conciatori, D.O.,1 one of plaintiff’s treating physicians for her

mental impairments; “some weight” to the opinion of Dr. Igor

Rubinshteyn, M.D., a consultative examiner evaluating

plaintiff’s physical impairments; “some weight” to the opinion

of Dr. Igor Stiler, M.D., a neurologist, one of plaintiff’s

treating physicians for her physical impairments, and;

“significant weight” to the opinion of Dr. Sharon Kahn, Ph.D, a

non-examining medical expert who opined about plaintiff’s mental

impairments. (Id. 28-31.) Further, upon assessing the medical

evidence and opinions, the ALJ found that plaintiff’s medically

determinable impairments could reasonably be expected to cause

her alleged symptoms, but that plaintiff’s “statements

concerning the intensity, persistence, and limiting effects of

these symptoms [were] not entirely consistent” with the

evidence. (Id. 21.)

At step four, the ALJ determined that plaintiff was

unable to perform her past relevant work as a bank branch

manager. (Id. 32.)

At step five, the ALJ concluded that given plaintiff’s

age, education, work experience, and RFC, jobs existed in

significant numbers in the national economy that plaintiff could

1 Dr. Robert J. Conciatori, M.D., provided a psychological consultation

in connection with plaintiff’s Workers’ Compensation case. (Tr. 809-11.)

perform. (Id. 33.) The ALJ supplied the vocational expert with

the above information, who determined that plaintiff could

perform the requirements of representative occupations like data

examination clerk, registration clerk, or tax clerk. (Id. 33-

34.) The ALJ thus concluded that plaintiff was not disabled

within the meaning of the Act. (Id. 34.)

III. The ALJ Erred in Failing to Apply the Treating Physician

Rule to the Opinions of Drs. Perez, Stiler, Reich and

Conciatori, Plaintiff’s Treating Physicians

“[A]n ALJ should defer to ‘to the views of the

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F. App’x 71, 74 (2d Cir.

2013) (quoting Green–Younger v. Barnhart, 335 F.3d 99, 106 (2d

Cir. 2003)).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

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), and the Court accordingly

applies the rule to this case, as plaintiff filed her claim on September 14,

2015. See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5 (S.D.N.Y.

2019).

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.’” Id. (quoting 20

C.F.R. § 404.1527(c)(2)).

“An ‘ALJ who refuses to accord controlling weight to

the medical opinion of a treating physician must consider

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 [or her]

reasons for the weight assigned to a treating physician’s

opinion.’” Id. (quoting Burgess, 537 F.3d at 129).

In this analysis, although an ALJ should generally

explain the weight given to each opinion, remand is not required

where application of the proper legal standards would lead to

the same conclusion previously reached. See Zabala v. Astrue,

595 F.3d 402, 409 (2d Cir. 2010). Failure to consider the

opinion of a treating physician “ordinarily requires remand to

the ALJ for consideration of the improperly excluded evidence,

at least where the unconsidered evidence is significantly more

favorable to the claimant than the evidence considered.” Id. at

409. “Remand is unnecessary, however, ‘[w]here application of

the correct legal standard could lead to only one conclusion.’”

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

For instance, in Zabala, the court found it was harmless error

to “exclude[] evidence [that was] essentially duplicative of

evidence considered by the ALJ,” as there would be no reasonable

likelihood that consideration of the unconsidered report would

change the outcome. Id. at 409-10 (noting that “[t]he

[unconsidered] report [was] largely identical to a [different]

report by the same doctor, which the ALJ did consider,” and

which set forth substantially identical findings).

The Commissioner argues that the ALJ gave proper

weight to the medical sources and that the ALJ’s decision is

supported by substantial evidence. (See Def. Mem. in Support of

Def.’s Cross-Mot. for J. on the Pleadings (“Def. Mem.”) at 6-

13.) Plaintiff contends that the ALJ failed to properly apply

the treating physician rule to the opinions of Dr. Perez, Dr.

Stiler, Dr. Reich, and Dr. Conciatori, and failed to adequately

assess plaintiff’s credibility. (Pl. Mem. in Support of Pl.’s

Mot. for J. on the Pleadings (“Pl. Mem.”) at 18-22, ECF No. 17.)

“The opinion of a treating physician on the nature or

severity of a claimant's impairments is binding if it is

supported by medical evidence and not contradicted by

substantial evidence in the record.” Selian v. Astrue, 708 F.3d

409, 418 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117,

128 (2d Cir. 2008); Green–Younger v. Barnhart, 335 F.3d 99, 106–

07 (2d Cir. 2003)). “SSA regulations provide a very specific

process for evaluating a treating physician’s opinion and

instruct ALJs to give such opinions ‘controlling weight’ in all

but a limited range of circumstances.” Greek v. Colvin, 802 F.3d

370, 376 (2d Cir. 2015) (internal citations omitted). Each of

the Burgess factors ALJ Miller was required to consider when

determining the amount of weight to afford the treating

physicians’ opinions weigh in favor of affording Dr. Perez, Dr.

Stiler, Dr. Reich, and Dr. Conciatori greater weight than ALJ

Miller afforded. As a group, the doctors are certified

specialists who have years-long treatment relationships with

plaintiff, and have supplied consistent, well-supported, medical

evidence for their opinions.3 ALJ Miller only afforded “some

3 Plaintiff argues that her treating physicians offered substantial

medical evidence that plaintiff had an impairment that met or medically

equaled the severity of one or more of the listed impairments in 20 CFR Part

404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526),

specifically Listing 1.04, disorders of the spine, and Listing 12.04A1,

depression.

Plaintiff argues that her treating physicians have provided substantial

medical evidence in support of a finding of degenerative disc disease as

found in Listing 1.04, section A. Plaintiff argues that her condition has

evidence of nerve root compression (radiculopathy) (Tr. 721, 743, 746-47,

weight,” rather than “controlling weight,” to claimant’s

treating physicians because ALJ Miller concluded that: (1) the

opinions of Drs. Perez and Stiler were not well-supported by

medically acceptable diagnostic techniques; and (2) that the

opinions of Drs. Reich and Conciatori were inconsistent with the

substantial objective medical evidence. (Tr. 28-30.) The ALJ

procedurally erred when he failed to explicitly consider the

760, 764, 793, 905); limited range of motion (id. 358, 363-64, 369-70, 377,

383, 389, 395, 401, 407, 413, 419, 425, 433, 443, 454, 464-65, 474, 486, 492-

93, 499, 506, 513, 520, 527, 534, 553, 558-59, 565, 572, 578-79, 585, 591,

597-98, 604, 611, 617, 623, 629, 635, 640, 647, 652, 658-59, 665, 670-71,

676, 683-84, 689-90, 695-96, 702, 707-08, 714, 719, 725, 731, 737-38, 767,

769, 771, 773, 775, 777, 779, 781, 783, 785, 787, 789, 821, 882-83, 888, 907,

913, 920, 928, 936, 944, 952, 960, 968, 976, 984, 992, 1001, 1007, 1013);

motor loss (muscle weakness) and sensory or reflex loss (id. 358-60, 365-66,

372, 391, 401, 409, 415, 420-21, 426-27, 434-35, 466, 599, 618, 623, 630,

672, 678, 685, 768, 770, 772, 774-75, 778, 782, 882-83, 978); and positive

straight-leg raising tests (supine and sitting) (id. 358, 370, 377, 383, 389,

395, 401, 407, 413, 419, 425, 433, 443, 454, 465, 474, 486, 493, 499, 506,

513, 520, 527, 534, 553, 559, 565, 572, 579, 585, 591, 957, 598, 604, 611,

617, 623, 629, 635, 641, 647, 653, 659, 665, 671, 677, 684, 690, 696, 702,

708, 714, 720, 726, 732, 738, 767, 769, 771, 773, 777, 781, 785, 787, 789,

816, 882-83, 914, 921, 929, 937, 945, 953, 961, 969, 977, 985, 993, 1001,

1008, 1014). (See Pl. Reply Mem. 5-7, ECF No. 20.)

Plaintiff also argues that her treating physicians have also provided

substantial medical evidence in support of a finding of depression as found

in Listing 12.04A1. Plaintiff argues that her condition has evidence of:

depressed mood (Tr. 754, 757, 798-800, 809-11, 831, 833-35, 837, 846, 856,

877), diminished interest in almost all activities (id. 755, 757, 831, 833,

856, 877), appetite disturbance with change in weight (id. 755, 757, 831,

833, 844, 847, 877), sleep disturbance (id. 754, 798, 800, 831, 833, 835,

837, 843-45, 847-48, 852, 876-77), decreased energy (id. 754, 757, 831, 833,

847, 851-52, 876-77), feelings of guilt or worthlessness (id. 755, 876-77),

difficulty concentrating or thinking (id. 755, 757-58, 829, 831, 852, 876-

77), and thoughts of suicide (id. 755, 831, 877). Plaintiff argues that she

also may satisfy subsection B of this listing because her treating physicians

have offered substantial medical evidence that she has at least marked

limitations with respect to understanding, remembering, or applying

information (id. 828, 872); interacting with others (id. 758, 829, 873, 877);

and concentrating, persisting, or maintaining pace (id. 829). (See Pl. Reply

Mem. 5-7.)

The court does not offer its opinion on whether plaintiff meets or

medically equals the listed impairments, as such a determination remains in

the province of the ALJ. However, the court offers these examples to

demonstrate that the treating physicians have provided substantial medical

evidence that the ALJ appears to have overlooked.

Burgess factors while determining what weight to afford the

opinions and medical evidence from plaintiff’s treating

physicians. See Estrella, 925 F.3d at 96. “Because the ALJ

procedurally erred, the question becomes whether a searching

review of the record ... assures the court ... that the

substance of the ... rule was not traversed—i.e., whether the

record otherwise provides ‘good reasons’ for assigning ‘[some]

weight’ to [the treating physicians’] opinion[s].” See id.

(ellipsis in original) (citing Halloran, 362 F.3d at 32).

Based on the following review of the record, the court

finds that ALJ Miller’s conclusions that plaintiff’s treating

physicians’ opinions were either (1) not well-supported by

medically acceptable diagnostic techniques or (2) were

inconsistent with the substantial objective medical evidence,

were based on the ALJ’s factually deficient reading of the

record. The court remands and directs ALJ Miller to explicitly

consider the Burgess factors and explain whether he affords

controlling weight to the opinions of plaintiff’s treating

physicians, Drs. Perez, Stiler, Reich and Conciatori.

A. Dr. Perez’s Opinion

ALJ Miller erred in according only “some weight,”

rather than “controlling weight,” to claimant’s treating

physician, Dr. Perez, when ALJ Miller erroneously concluded

that: (1) Dr. Perez’s opinion was not well-supported by

medically acceptable diagnostic techniques; and (2) that Dr.

Perez’s opinion was inconsistent with substantial evidence in

the record.

First, the court reviews Dr. Perez’s findings and

treatment plan to determine whether they are well-supported by

medically acceptable diagnostic techniques. Dr. Perez opined,

among other things, that plaintiff: could stand and/or walk up

to two hours per day; could sit for up to four hours per day;

could carry between five and ten pounds; could never reach

overhead but could occasionally reach forward and laterally and

frequently handle, finger, and feel with her left arm, and;

would need to lie down during the work day, switch between

sitting and standing, take frequent breaks, and take two or more

sick days off each month. (Tr. 900-02.) Dr. Perez further

opined that future treatment would only “transiently” manage

plaintiff’s symptoms, and that plaintiff would be unable to

maintain any gainful employment due to her cervical spine, left

shoulder, right knee, and lumbar spine impairments. (Id. 909.)

Over the course of the six-year treatment period, Dr.

Perez performed monthly extensive physical examinations on

plaintiff, noting plaintiff’s subjective complaints of pain,

logging plaintiff’s symptomatic responses to function/mobility

tests and pain/tenderness tests, and prescribing a course of

action based on plaintiff’s improvement or decompensation.

(Stip. 1-10.) Dr. Perez ordered and analyzed: several MRIs that

revealed mild degenerative disc disease and small central disc

protrusion plus impingement in plaintiff’s lumbar spine (id. 3-

4, 6), mild chondromalacia in plaintiff’s right patella (id. 3-

4), small disc protrusions and mild multilevel degenerative

changes in plaintiff’s cervical spine (id. 4); and EMGs that

showed a tendon contusion, a low-grade articular sided partial

thickness tear, minimal marrow edema in plaintiff’s left

shoulder (id. 4), and radiculopathy in the left L4 region of

plaintiff’s lumbar spine. (Id. 6.) Upon a review of Dr. Perez’s

treatment plan, the court finds that it was supported by

physical examinations and modern laboratory diagnostic imaging.

As a result, the court finds that Dr. Perez’s treatment of

plaintiff over six-years was well-supported by medically

acceptable diagnostic techniques.

Second, ALJ Miller has mischaracterized the evidence

in arriving at the conclusion that Dr. Perez’s opinion was

inconsistent with substantial evidence in the record. To

support this finding, the ALJ cited plaintiff’s activities of

daily living, plaintiff’s reports of moderate pain, and the

examination findings, of Dr. Perez and Dr. Rubinshteyn, of

intact sensation and only slightly decreased strength. (See Tr.

28.) Contrary to the ALJ’s conclusion, the record demonstrates

that plaintiff is significantly limited in her ability to

perform daily activities. For example, plaintiff maintained

that she could not hold a job, attend to family needs, or do

household chores and needed help performing all personal care.

(Id. 279-80.) Though plaintiff has occasionally attended family

functions and helped to take care of her cousin’s baby,

performance of such limited activities is not indicative of an

ability to perform sustained work. “[A] finding that a claimant

is capable of undertaking basic activities of daily life cannot

stand in for a determination of whether that person is capable

of maintaining employment, at least where there is no evidence

that the claimant ‘engaged in any of these activities for

sustained periods comparable to those required to hold a

sedentary job.’” Bigler v. Comm'r of Soc. Sec., No. 19-CV-03568

(AMD), 2020 WL 5819901, at *5 (E.D.N.Y. Sept. 29, 2020) (quoting

Vasquez v. Barnhart, No. 02-CV-6751, 2004 WL 725322, at *11

(E.D.N.Y. Mar. 2, 2004). See also Murdaugh v. Sec’y of Dep’t of

Health & Human Servs., 837 F.2d 99, 102 (2d Cir. 1988) (“[T]hat

appellant receives conservative treatment, waters his landlady’s

garden, occasionally visits friends and is able to get on and

off an examination table is scarcely said to controvert the

medical evidence.”); Carroll v. Sec’y of Health & Human Servs.,

705 F.2d 638, 643 (2d Cir. 1983).

Dr. Perez’s opinion is based on sound medical evidence

collected over a six-year period; during that time, plaintiff

was consistently in pain, and experienced improvement in some

symptoms only as others persisted and worsened. (See Stip. 1-

10; Tr. 903-904.) Dr. Rubinshteyn’s finding, after a single

examination, that plaintiff’s sensation was intact and

plaintiff’s strength was only slightly decreased, is not

sufficient medical evidence to discount Dr. Perez’s well-

informed opinion. “ALJs should not rely heavily on the findings

of consultative physicians after a single examination.” Selian

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

between the opinion of a treating physician and that of 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, at *14 (E.D.N.Y. Oct. 15, 2015)

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

305 (E.D.N.Y. 2014)). Indeed, there were discrete moments over

the course of Dr. Perez’s six-year treating relationship where

he reported that plaintiff had intact sensation and normal

strength, see, e.g., Tr. 378-79, similar to the one-off findings

of consultative examiner Dr. Rubinshteyn. However, such

findings must be evaluated in the context of the other

significant deficits and impairments Dr. Perez found over a six-

year period of treatment, which Dr. Rubinshteyn’s one-time

observation could not be expected to reproduce.

Accordingly, for the reasons stated above, the court

finds that Dr. Perez’s opinion was well-supported by medically

acceptable diagnostic techniques and was not inconsistent with

the substantial objective medical evidence. On remand, the ALJ

is directed to explicitly consider the Burgess factors and

either afford controlling weight to Dr. Perez’s opinion or

explain why he will not do so.

B. Dr. Stiler’s Opinion

As with Dr. Perez, ALJ Miller erred in according only

“some weight,” rather than “controlling weight,” to claimant’s

next treating physician, Dr. Stiler, when ALJ Miller erroneously

concluded that: (1) Dr. Stiler’s opinion was not well-supported

by medically acceptable diagnostic techniques; and (2) that Dr.

Stiler’s opinion was inconsistent with substantial evidence in

the record.

First, the court reviews Dr. Stiler’s findings and

treatment plan to determine whether they are well-supported by

medically acceptable diagnostic techniques. Dr. Stiler’s

findings regarding plaintiff’s limitations were largely

consistent with those of Dr. Perez. Dr. Stiler opined that

plaintiff: could stand and/or walk less than one hour and sit

less than four hours in an eight-hour workday; could carry

between five and ten pounds for 1/3 of a workday; could never

complete functions with her left arm but could occasionally

complete functions with her right arm; had environmental

restrictions; would need to lie down, switch between sitting and

standing, and take frequent breaks during the workday; would

need to take two or more sick days off each month, and; had pain

that prevented her from working for eight hours. (Tr. 880-81.)

Dr. Stiler further opined that plaintiff was totally and

permanently disabled from taking up gainful employment due to

cervical and lumbar radiculopathies with protruding discs, a

traumatic rotator cuff injury in her left shoulder, anxiety and

depression from chronic pain, and a right wrist fracture. (Id.

883.)

Dr. Stiler conducted extensive physical examinations

and ordered diagnostic tests for plaintiff over three years. On

multiple examinations, Dr. Stiler observed tenderness with

spasms and reduced range of motion of plaintiff’s cervical and

lumbar spines, tenderness and reduced range of motion of

plaintiff’s left shoulder, and reduced sensation in plaintiff’s

left arm. (Id. 767-90.) An NCV/EMG study showed chronic left

C6-level radiculopathy of plaintiff’s cervical spine, mild to

moderate neuropathy of the median nerve and prolonged latency

difference in plaintiff’s right forearm. (Id. 791-93.) Like

Dr. Perez, Dr. Stiler used objective diagnostic techniques,

including physical examinations and NCV/EMG imaging and studies,

to evaluate plaintiff’s condition.

Second, ALJ Miller has mischaracterized the evidence

in arriving at the conclusion that Dr. Stiler’s opinion was

inconsistent with substantial evidence in the record. To

support this finding, the ALJ cited plaintiff’s reports of daily

living, plaintiff’s reports of moderate pain, and evidence of

intact sensation and slightly decreased strength. (Id. 30; see

id. 28.) As the court found in its review of the ALJ’s

consideration of Dr. Perez’s findings, the court further finds

that the ALJ has also mischaracterized Dr. Stiler’s findings and

opinions regarding the plaintiff’s condition and limitations.

First, contrary to the ALJ’s assertion, plaintiff is

significantly limited in her ability to perform even the most

basic activities, such as her ability to dress, bathe, care for

her hair, shave and feed herself. (Id. 279.) Second, although

plaintiff sometimes reported “moderate” pain, Dr. Stiler, the

treating physician’s opinion is based on sound medical evidence

collected over an extended period of time. (Id. 791-93.)

Third, the ALJ failed to explain why a consultative examiner’s

finding, in a single examination, that plaintiff’s sensation was

intact and strength was only slightly decreased was sufficient

to discount the findings and medical tests supporting a treating

physician’s opinion. Like Dr. Perez, Dr. Stiler documented

significant deficits and impairments that substantially

supported his opinion regarding plaintiff’s exertional

limitations.

Accordingly, for the reasons stated above, the court

finds that Dr. Stiler’s opinion was well-supported by medically

acceptable diagnostic techniques and was not inconsistent with

the substantial objective medical evidence. On remand, the ALJ

is directed to explicitly consider the Burgess factors and

consider whether to afford controlling weight to Dr. Stiler’s

opinion, or explain why controlling weight is not accorded.

C. Dr. Reich’s Opinion

ALJ Miller erred in according only “some weight,”

rather than “controlling weight,” to claimant’s treating

physician, Dr. Reich, when ALJ Miller erroneously concluded that

Dr. Reich’s opinion was inconsistent with the substantial

objective medical evidence.

First, the court reviews Dr. Reich’s findings to

determine whether they are inconsistent with the substantial

objective medical evidence. Dr. Reich opined that plaintiff had

the following mental limitations due to her memory loss,

medication-induced cognitive deficits, and loss of sleep:

moderate limitations in carrying out simple instructions;

moderate limitations in making judgments on simple work-related

decisions; marked limitations in understanding and remembering

simple and complex instructions; marked limitations in carrying

out complex instructions; and marked limitations in making

judgments on complex work-related decisions. (Id. 872.) Dr.

Reich further opined that plaintiff, due to her anxiety, had:

moderate limitations in interacting appropriately with the

public and with coworkers; moderate limitations in responding

appropriately to usual work situations and to changes in a

routine work setting, and; marked limitations in interacting

appropriately with supervisors. (Id. 873.) In sum, Dr. Reich

found that plaintiff had moderate restriction of activities of

daily living, severe difficulties in maintaining social

functioning, moderate deficiencies of concentration,

persistence, or pace resulting in failure to complete tasks in a

timely manner, and severe episodes of deterioration or

decompensation, and concluded that plaintiff was presently

unable to work. (Id. 877-78.)

The ALJ’s reasons for concluding that Dr. Reich’s

opinions were inconsistent with the “substantial objective

medical evidence” showing that plaintiff had mostly normal

mental status examinations during the period in question are

unpersuasive. (See id. 29, referring to id. 837-58.) First,

the ALJ conducts a disjointed and superficial analysis of the

“substantial objective medical evidence” which he claims are

inapposite to Dr. Reich’s findings. (Id.) Despite affording

treating physician Dr. Conciatori’s medical opinion only “some

weight,” ALJ Miller cites to Dr. Conciatori’s treatment record

for the proposition that plaintiff had “mainly normal mental

status examinations except for her mood and affect during the

period in question.” (Id.) The ALJ’s lay interpretation of Dr.

Conciatori’s findings is not a medical finding that may be used

to demonstrate an inconsistency with Dr. Reich’s findings. The

ALJ is “not permitted to substitute his own expertise or view of

the medical proof for the treating physician's opinion or for

any competent medical opinion.” Greek v. Colvin, 802 F.3d 370,

375 (2d Cir. 2015). Here the ALJ substituted his own

interpretation for Dr. Conciatori’s medical findings and

opinion. As the ALJ has failed to demonstrate with specificity

what substantial objective medical evidence exists that is

inapposite to Dr. Reich’s opinion, the court finds that the

ALJ’s characterization of the medical evidence is in error.

The ALJ failed to accurately characterize or identify

substantial evidence that contradicted Dr. Reich’s opinion, and

to explicitly consider the Burgess factors. Nor did the ALJ

adequately explain why Dr. Reich’s opinion was not afforded

controlling weight. On remand, the ALJ is directed to

explicitly consider the Burgess factors and explain the reasons

that he will or will not assign controlling weight to Dr.

Reich’s opinion.

D. Dr. Conciatori’s Opinion

As with Dr. Reich, ALJ Miller erred in according only

“some weight,” rather than “controlling weight,” to claimant’s

treating physician, Dr. Conciatori, when ALJ Miller erroneously

concluded that Dr. Conciatori’s opinion was inconsistent with

the substantial objective medical evidence.

First, the court reviews the ALJ’s consideration of

Dr. Conciatori’s findings to determine whether the ALJ’s

conclusions regarding Dr. Conciatori’s opinions are supported by

substantial objective medical evidence. Regarding plaintiff’s

mental impairments, Dr. Conciatori found that plaintiff suffered

from lack of attention span, decreased capacity for

concentration, poor motivation, anhedonia, and panic attacks.

Based on the foregoing findings, Dr. Conciatori concluded that

plaintiff had: marked limitations in understanding, remembering,

and carrying out simple instructions; marked limitations in

making judgments on simple work-related decisions; extreme

limitations in understanding, remembering, and carrying out

complex instructions, and; extreme limitations in making

judgments on complex work-related decisions. (Tr. 828.) Dr.

Conciatori further opined that, due to plaintiff’s heightened

anxiety and the frequency of her panic attacks, plaintiff had

marked limitations in interacting with coworkers, supervisors,

and the public, and in responding to usual work situations and

changes in a routine work setting. (Id. 829.) Dr. Conciatori

found that plaintiff’s anxiety and depression would make it

difficult for her to tolerate a work-like setting. (Id. 758.)

Again, the ALJ inappropriately substituted his lay

opinion for that of the treating physician in concluding that

Dr. Conciatori’s opinion conflicted with the “substantial

evidence of record.” (Id. 30.) The ALJ noted that “[Dr.

Conciatori] specified [that] [plaintiff] had marked to extreme

limitations in understanding, remembering, and carrying out

instructions and marked limitation in the abilities to interact

appropriately with supervision, coworkers, and the public, and

to respond to changes in the routine work setting as of

September 2013.” (Tr. 30.) The ALJ appears to have cherry

picked from Dr. Conciatori’s treatment notes, citing moments

when plaintiff is largely, though not entirely, in good health,

showing that, “claimant was cooperative, though anxious and with

a constricted affect, had normal speech, was oriented, and had

intact memory, concentration, information, judgment, insight,

and ability to perform calculations and serial 7s.” (Id.)

However, the ALJ overlooked Dr. Conciatori’s notes that also

indicated that plaintiff’s mood was often “depressed,” “nasty,”

or “nervous.” (Id.) The ALJ pairs his description of Dr.

Conciatori’s treatment notes with selective findings from the

treatment notes of Drs. Reich and Lefkowitz to claim that

treating physician Dr. Conciatori’s medical opinion is

unsupported by the record. In selectively choosing evidence

that supports the ALJ’s lay view of plaintiff’s condition, and

in not affording the treating physician Dr. Conciatori’s opinion

controlling weight, the ALJ has inappropriately substituted his

lay opinion for a treating physician’s medical opinion. See

Colvin, 802 F.3d, at *375.

As the ALJ failed to accurately characterize or cite

with particularity the substantial evidence that contradicted

Dr. Conciatori’s opinion, and because the ALJ failed to

explicitly consider the Burgess factors, the court finds that

Dr. Conciatori’s opinion should have been afforded controlling

weight. On remand, the ALJ is directed to explicitly consider

the Burgess factors, consider whether to assign controlling

weight to Dr. Conciatori’s opinion, and explain the bases for

deciding whether or not to do so.

On balance, the ALJ selectively relied on

inconsistencies in the treating physicians’ opinions as a basis

for denying plaintiff disability benefits. This was in

violation of the ALJ’s mandate, and, along with the errors noted

above, warrants remand. See Clarke v. Colvin, 15-CV-354, 2017

WL 125362, at *9 (S.D.N.Y. Apr. 3, 2017) (“[T]he ALJ selectively

relied on evidence that weighed against a finding of a

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

evidence which favors a finding that the claimant is not

disabled.’”) (quoting Rodriguez v. Astrue, 07-CV- 534, 2009 WL

637154, at *25 (S.D.N.Y. Mar. 9, 2009)); accord Kebreau v.

Astrue, No. 11-CV-12, 2012 WL 3597377, at *2 (E.D.N.Y. Aug. 20,

2012).

IV. The ALJ Erred in Assessing Plaintiff’s Credibility

An ALJ evaluating a claimant’s subjective complaints

of her symptoms must first decide whether the claimant suffers

from a medically determinable impairment that could reasonably

be expected to produce her pain or other symptoms alleged. 20

C.F.R. § 404.1529(c)(1). Second, the ALJ must evaluate the

intensity and persistence of the claimant’s symptoms given all

of the available evidence. Id. In assessing the credibility of

the claimant’s statements regarding her symptoms, the ALJ must

consider the following factors: “(1) [The claimant’s] daily

activities; (2) The location, duration, frequency, and intensity

of [the claimant’s] pain or other symptoms; (3) Precipitating

and aggravating factors; (4) The type, dosage, effectiveness,

and side effects of any medication [the claimant] takes or has

taken to alleviate pain or other symptoms; (5) Treatment, other

than medication, [the claimant] receives or has received for

relief of pain or other symptoms; (6) Any measures the claimant

uses or [has] used to relieve pain or other symptoms (e.g.,

lying flat on [her] back, standing for 15 to 20 minutes every

hour, sleeping on a board, etc.); and (7) Other factors

concerning [the claimant’s] functional limitations and

restrictions due to pain or other symptoms.” 20 C.F.R. §

404.1529(c)(3). Notwithstanding, the ALJ will consider whether

there are any incongruities between the claimant’s statements

and the rest of the evidence. 20 C.F.R. § 404.1529(c)(4).

“Remand is appropriate where an ALJ does not follow these

steps.” Peck v. Astrue, No. 07-CV-2762, 2010 WL 3125950, at *4

(E.D.N.Y. Aug. 6, 2010).

The ALJ initially found that plaintiff’s medically

determinable impairments could reasonably be expected to cause

her alleged symptoms. (Tr. 21.) The ALJ then cherry-picked

favorable findings by finding that plaintiff’s subjective

account of the intensity, persistence, and limiting effects of

her symptoms were incongruent with the objective medical

evidence and other evidence, including: Dr. Soran’s “mostly

normal” physical exam findings (id. 22); Dr. Perez’s reports of

improvement and stability of physical symptoms with treatment

(id. 23); Dr. Zeretsky’s normal and mild physical exam findings

(minus his finding of decreased range of motion in plaintiff’s

left shoulder) (id. 23-24); an MRI of plaintiff’s lumbar spine

showing “only mild” degenerative changes (id. 24); Dr. Tehrany’s

finding that plaintiff’s left shoulder was improving (id. 25);

Dr. Reich’s mostly normal mental status findings (id. 26); and

the fact that plaintiff had been able to engage in some

activities of daily living. (Id. 32.)

The ALJ’s evaluation of the credibility of plaintiff’s

statements was based on an incorrect weighing of plaintiff’s

treating physicians’ medical opinions. Thus, on remand, the ALJ

is instructed to reevaluate plaintiff’s statements concerning

the intensity, persistence, and limiting effects of her symptoms

in light of the ALJ’s careful reassessment of the medical

opinion evidence and the underlying medical evidence. See

Ingrassia v. Colvin, 239 F. Supp. 3d 605, 628 (E.D.N.Y. 2017)

(“[The ALJ’s credibility determination] was further flawed

because the ALJ did not give controlling weight to Dr. Alpert’s

medical opinion, and ‘[t]he ALJ’s proper evaluation of [the

treating physician’s] opinions [will] necessarily impact the

ALJ’s credibility analysis’”) (internal citations and quotations

omitted); Goff v. Astrue, 993 F. Supp. 2d 114, 125 (N.D.N.Y.

2012) (“The ALJ's decision to discount Plaintiff's credibility

with respect to her respiratory impairments was based in

necessary part upon his assessment of Dr. LoDolce's opinion. []

However, the ALJ's consideration of Dr. LoDolce's opinion was

flawed for the reasons stated above. As such, the question of

Plaintiff's credibility as to her physical limitations will need

to be revisited on remand after the ALJ reassesses Dr. LoDolce's

opinion.”)

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order remand for further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

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

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

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

omitted). Remand is particularly appropriate where further

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

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

For the reasons set forth above, the court grants

plaintiff’s motion for judgment on the pleadings; denies

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

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to close this case and enter judgment in favor of

plaintiff.

SO ORDERED.

Dated: December 31, 2020

Brooklyn, New York

/s/

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York