# Marazzo v. Berryhill

> District Court, E.D. New York · December 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10305456

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305456

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

JOSEPHINE MARAZZO,

Plaintiff,

-against- MEMORANDUM AND ORDER
19-CV-0552 (KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305456. Public record. Not legal advice.