Palmer v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL PALMER,

Plaintiff,

MEMORANDUM AND ORDER

-against-

19-CV-5170(KAM)

COMMISSIONER OF THE SOCIAL SECURITY

ADMINISTRATION,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Michael Palmer (“plaintiff”) appeals the final

decision of the Commissioner of Social Security (“defendant” or

the “Commissioner”), which found that plaintiff was not disabled

within the meaning of the Social Security Act (the “Act”) and,

therefore, was not eligible for disability insurance benefits

under Title II of the Act. Plaintiff contends that he is

disabled under the Act and is thus entitled to receive benefits.

Presently before the court are the parties’ cross-

motions for judgment on the pleadings. For the reasons herein,

plaintiff’s motion is GRANTED, defendant’s motion is DENIED, and

the case is REMANDED for further proceedings consistent with

this Memorandum and Order.

Background

The parties in this case have filed a joint

stipulation of relevant facts, which the court incorporates by

reference. (See generally ECF No. 23-1, Joint Stipulation of

Facts.) The court will recount the factual background here only

to the extent such facts are relevant to the pending motions.

Plaintiff was born in 1971 and applied for benefits in

2007. Plaintiff’s alleged disability, since 2002, is related

primarily to chronic back and neck pain caused by bulging and

herniated discs. (See id. at 2-18.) Plaintiff also reported

pain and occasional swelling of his knees, back, and left

shoulder following a car accident in 2002. (Id. at 13.)

Plaintiff’s back, knee, and shoulder problems were

documented by several MRIs between 2002 and 2006. A May 29,

2002 MRI of plaintiff’s lumbosacral spine revealed exaggerated

lumbar lordosis, rotatory scoliosis convex towards the left,

bulging discs at L2-L3 and L3-L4, herniated discs towards the

left and laterally indenting the thecal sac and the left L5

nerve root, bulging discs at L5-S1, and narrowed neural foramina

levels at L3-S1. (ECF No. 24, Administrative Transcript

(“Tr.”), at 384.) A June 4, 2002 MRI of plaintiff’s spine also

revealed several more herniated discs. (Id. at 383.) A

September 6, 2002 MRI of plaintiff’s right knee revealed linear

type II signal abnormality, posterior horn medial meniscus,

clubbing deformity body, focal signal abnormality posterior horn

lateral meniscus and clubbing deformity, partial tear at the

fibular collateral ligament, and joint effusion. (Id. at 386.)

An October 25, 2006 MRI of plaintiff’s left shoulder revealed

tendinosis of the supraspinatus tendon with a focal full

thickness near about its insertion site to the greater

tuberosity, and OS acromiale. (Id. at 385.)

The record is devoid of treatment notes from October

2007 to March 2014. (Id. at 16.) During part of that time,

plaintiff was treated by Dr. Leonard A. Langman. (Id. at 37-

38.) In 2011, Dr. Langman was convicted of billing fraud.

(Id.) He subsequently closed his practice and no records from

the practice were available to plaintiff or the Commissioner.

(Id.)

I. Relevant Medical Opinions

Due in part to the unique and lengthy procedural

history of this case, which will be discussed infra, the various

medical opinions available in the record span a decade, from

2007 to 2017. The opinions relevant to the parties’ arguments

are summarized briefly here.

A. Dr. Mohammed Iqbal (Consultative Examiner)

On August 8, 2007, Dr. Mohammed Iqbal conducted a

consultative orthopedic examination of plaintiff. (Id. at 352.)

Plaintiff’s chief complaint to Dr. Iqbal was neck pain

aggravated by movement, and plaintiff also recounted his

previous MRIs showing herniated discs. (Id.) Dr. Iqbal

observed that plaintiff was in no acute distress, walked with a

slow gait and a cane, and Dr. Iqbal noted mild instability

without the cane. (Id. at 353.) Plaintiff’s station was

normal, and he needed no help changing or getting on and off the

examination table. (Id.) He was able to rise from his chair

slowly, with mild difficulty. (Id.) Dr. Iqbal opined that

plaintiff had no limitations when sitting, moderate limitations

with prolonged walking with a cane, and moderate to severe

limitations walking without a cane. (Id. at 355.) He also

opined that plaintiff had moderate limitations with lifting mild

weight, and that plaintiff should avoid prolonged standing and

walking, frequent bending, and heavy lifting. (Id.)

B. Dr. W. Jaruch (Non-Examining State Agency Consultant)

On August 15, 2007, a state agency physician completed

a residual functional capacity assessment form for the state of

New York. (Id. at 356-61.) Dr. Jaruch’s completion of the form

was based primarily on a review of treatment notes provided by

Dr. Iqbal and Dr. Langman. (Id.) Dr. Jaruch opined that

plaintiff could occasionally lift up to ten pounds, and

frequently lift less than ten pounds. (Id. at 357.) Dr. Jaruch

further opined that plaintiff could stand or walk for at least

two hours in an eight-hour workday, sit for about six hours in

an eight-hour workday, and had unlimited ability to push and

pull. (Id.)

C. Dr. Jenny Torres (Consultative Examiner)

On October 2, 2015, Dr. Jenny Torres conducted a

consultative internal medicine examination of plaintiff. (Id.

at 399.) Dr. Torres observed that plaintiff was in no acute

distress. (Id. at 400.) Plaintiff had a normal gait and was

able to heel-toe walk without difficulty. (Id.) His stance was

normal, his squat was full, he did not use an assistive device,

and he did not need assistance changing or getting on or off the

examination table. (Id.) Dr. Torres diagnosed plaintiff with

herniated discs in the lower back and cervical spine, a left

knee meniscus tear, hypertension, and hyperlipidemia. (Id. at

401.) Dr. Torres opined that plaintiff had mild restrictions

for heavy lifting and carrying, but that plaintiff had no other

restrictions. (Id. at 402.)

Dr. Torres attached to her consultative exam report an

unsigned medical source statement, in which she indicated that

plaintiff could sit and stand for a total of one hour without

interruption, and walk for 30 minutes at a time without

interruption. (Id. at 404.) Dr. Torres opined that plaintiff

could sit for a total of six hours, stand for three hours, and

walk for two and a half hours in an eight-hour workday; and that

plaintiff did not require a cane to walk. (Id. at 404.) Dr.

Torres further opined that plaintiff could frequently carry up

to 20 pounds, and continuously carry up to ten pounds, but he

could never carry more than that. (Id. at 403.) Lastly, Dr.

Torres opined that plaintiff could occasionally balance, stoop,

kneel, crouch, and crawl, and he could perform the activities of

daily living, including traveling without assistance, using

public transportation, preparing simple meals, and caring for

his personal hygiene. (Id. at 406-08.)

D. Dr. Isaac Kreizman (Treating Physician)

Dr. Isaac Kreizman began treating plaintiff in the

fall of 2015 for neck, ankle, and lower back pain, and

headaches. (Id. at 563-75.) Dr. Kreizman diagnosed plaintiff

with lower back pain, lumbar radiculopathy, and gait disorder.

(Id. at 571, 575.) In December 2015, Dr. Kreizman provided

plaintiff with two Lidocaine injections. (Id. at 567.) On

April 5, 2016, Dr. Kreizman diagnosed plaintiff with

sacroiliitis. (Id. at 561.) Plaintiff attended follow-up

appointments with Dr. Kreizman on multiple occasions in 2016.

(Id. at 542-58.)

On November 28, 2016, Dr. Kreizman completed a medical

source statement, opining that plaintiff could sit, stand, and

walk for a total of 15 minutes at a time, for a total of one

hour in an eight-hour workday. (Id. at 610.) He noted that

plaintiff did not need an assistive device. (Id.) Dr. Kriezman

also opined that plaintiff could occasionally lift up to ten

pounds, and plaintiff could occasionally balance, stoop, reach,

handle, and finger. (Id. at 611.)

E. Dr. Christel Moran (Local Agency Examiner)

In June 2016, Dr. Christel Moran examined plaintiff in

connection with plaintiff’s application for welfare benefits.

(Id. at 501.) Dr. Moran noted that plaintiff required

vocational rehabilitation, and that he was able to work part-

time so long as the work was routine and low stress. (Id. at

504.) Dr. Moran assessed that plaintiff’s work limitations

should include limited standing, bending, stooping, lifting,

carrying, and reaching. (Id.) She also opined that plaintiff

would require work that allowed a change in position, avoided

heavy lifting and carrying, as well as a setting with limited

noise and people. (Id.)

F. Dr. Lyudmila Trimba (Consultative Examiner)

On January 11, 2017, Dr. Lyudmila Trimba conducted a

consultative internal medicine examination of plaintiff. (Id.

at 614-28.) Dr. Trimba observed that plaintiff’s gait was slow,

but normal, though he could not heel-toe walk due to pain. (Id.

at 616.) Plaintiff did not need an assistive device to walk,

did not need help changing for the examination, or any help

getting on and off the examination table. (Id. at 616-17.)

Plaintiff’s cervical spine showed full flexion, extension,

lateral flexion bilaterally, and full rotary movement

bilaterally. (Id.) Plaintiff complained of pain while

performing range of motion of the cervical spine. (Id.)

Plaintiff had full range of motion in his arms, hips, knees, and

ankles, though with pain in certain areas. (Id.)

Dr. Trimba opined that plaintiff was mildly to

moderately limited in his abilities to: sit, stand, walk for a

prolonged period of time, climb steps, push, pull, or carry

heavy objects. (Id. at 618.) Dr. Trimba further opined that

plaintiff should avoid frequent bending, squatting, and

kneeling. (Id.) Dr. Trimba also assessed the following

functional limitations: plaintiff could sit for an hour without

interruption, stand for 30 minutes without interruption, walk

for 20 to 30 minutes without interruption, sit for a total of

four hours, stand or walk for a total of two hours in an eight-

hour workday, and occasionally lift and carry up to 20 pounds.

(Id. at 619-20.) She opined that plaintiff did not require a

cane to ambulate. (Id. at 620.) Dr. Trimba also opined that

plaintiff could never climb stairs, balance, stoop, kneel,

crouch, or crawl, or work at unprotected heights, or with moving

mechanical parts. (Id. at 622-23.) Dr. Trimba opined that

plaintiff could perform the activities of daily living, such as

shopping, traveling alone, ambulating without assistance, and

preparing a simple meal, but he could not walk a block on rough

or uneven surfaces. (Id. at 624.)

II. Procedural History

Plaintiff applied for benefits on June 1, 2007,

alleging disability since April 28, 2002. His application was

denied. (Id. at 114-117.) Subsequently, plaintiff requested a

hearing before an Administrative Law Judge (“ALJ”), and on

October 20, 2009, he appeared before ALJ Michael Dominic

Cofresi. (Id. 65-80.) ALJ Cofresi upheld the Commissioner’s

denial of plaintiff’s claim on November 2, 2009. (Id. at 90-

100.) On May 12, 2011, the Appeals Council declined to grant

review of the ALJ’s denial. (Id. at 101-06.)

However, on October 18, 2013, Judge Carol Bagley Amon

in this District approved a class action settlement in Padro et

al. v. Colvin, a lawsuit against the Commissioner that alleged

bias on the part of certain ALJs, including ALJ Cofresi. (Id.

at 189-197.) The Commissioner denied any wrongdoing by the

ALJs, but as a result of the settlement, any claimant whose

claim was denied after a hearing before one of the relevant ALJs

was entitled to a new hearing. (Id.)

Plaintiff participated in and testified at a second

hearing before ALJ Elias Feuer on November 29, 2016, at which

vocational expert Christina Boardman also testified. (Id. at

32-80.) On August 1, 2018, ALJ Feuer issued a decision finding

that plaintiff was not disabled. (Id. at 9-27.) On April 15,

2019, the Appeals Council denied plaintiff’s request for review,

rendering ALJ Feuer’s decision the final decision of the

Commissioner. (Id. at 1-5, 233-6.) After the Appeals Council

granted plaintiff’s request for additional time to file a civil

action, this action in federal court followed. (See generally

ECF No. 1, Complaint.)

Legal Standard

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

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

decision or within such further time as the Commissioner of

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

district court, reviewing the final decision of the

Commissioner, must determine whether the correct legal standards

were applied, and whether substantial evidence supports the

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

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence, or if the decision is based on legal

error. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is ‘more than a mere scintilla,’” and must

be relevant evidence that a “‘reasonable mind might accept as

adequate to support a conclusion.’” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 420

U.S. 389, 401 (1971)). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C. § 405(g). Inquiry into

legal error requires the court to ask whether the plaintiff 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, 10 (2d Cir. 1990)

(second alteration in original)). 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 of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, a claimant must be

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

423(a), (d). A claimant is disabled under the Act when he is

unable to “engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his previous work or

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

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

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

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

process is essentially as follows:

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

is not working, (2) that 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 his prior type of work,

the Commissioner must find him 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)); see also 20

C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment

. . . would be of sufficient severity to establish eligibility

for Social Security benefits.” 20 C.F.R. § 404.1523. Further,

if the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

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

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

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. At step five, the burden shifts from

the claimant to the Commissioner, requiring that the

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

functional capacity (“RFC”), age, education, and work

experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

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

Lastly, a court reviewing final decisions of the

Commissioner is explicitly authorized to order further

proceedings when appropriate. 42 U.S.C. § 405(g) (“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.”). 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. Chater, 94 F.3d

34, 39 (2d Cir. 1996)). Remand is particularly appropriate

where further findings or explanation will clarify the rationale

for the ALJ’s decision. Pratts, 94 F.3d at 39.

Discussion

I. The Relevant ALJ Decision

ALJ Feuer applied the five-step sequential framework

for determining disability, and concluded that plaintiff was not

disabled. (Tr. at 22.) At step one, the ALJ found that

plaintiff had not engaged in substantial gainful activity since

his application date of June 1, 2007. (Id. at 14.) At step

two, the ALJ found that plaintiff suffered from the following

“severe” impairments: discogenic and degenerative back disorder,

and neuralgia neuritis. (Id.) At step three, the ALJ found

that plaintiff’s conditions did not meet or equal the severity

of an impairment listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Id. at 14-15.)

The ALJ then found that plaintiff had the RFC to

perform “light work,” which under the Commissioner’s

regulations, “involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10

pounds,” and “a good deal of walking or standing, or . . .

sitting most of the time with some pushing and pulling of arm or

leg controls.” 20 C.F.R. § 416.967(b). Beyond the defined

limitations of “light work,” the ALJ also found that plaintiff

was limited to lifting and carrying up to only 15 pounds

occasionally, and was able to stoop, kneel, crouch and crawl

occasionally. (Tr. at 15.)

In determining plaintiff’s RFC, the ALJ gave “some”

but “not great weight” to the opinions of the consultative

orthopedist, Dr. Iqbal, which were that plaintiff had no

limitations in sitting, moderate limitations for prolonged

walking with a cane, severe limitations walking without one, and

moderate limitations lifting mild weight. (See id. at 353-55.)

The ALJ gave these opinions only “some” weight for three

reasons: (1) the ALJ found that “moderate to severe” limitations

were not supported by Dr. Iqbal’s own physical examination; (2)

the record lacked other medical records from 2007 to March 2014,

so the opinions were not supported by contemporaneous records;

and (3) Dr. Iqbal “apparently relied quite heavily” on

plaintiff’s own reports of his need for a cane. (Id. at 17.)

The ALJ assigned “little weight” to the 2007 non-

examination assessment by Dr. Jaruch, the state agency

consultant, who opined that plaintiff could only occasionally

lift up to ten pounds. (See id. at 356-61.) The ALJ reasoned

that additional evidence was produced later, and Dr. Jaruch’s

opinion was based only on a one-time review of the “sparse”

medical file that existed at that time. (Id.)

The ALJ gave “great weight” to consultative internist

Dr. Torres’s 2015 opinios that plaintiff had normal range of

motion, because it was consistent with the medical evidence.

(Id. at 17-18.) However, the ALJ gave only “some weight” to Dr.

Torres’s opinion regarding plaintiff’s limitations for standing

and walking, finding those limitations were inconsistent with

the record. (Id. at 18.)

The ALJ gave “little weight” to treating physician Dr.

Kreizman’s 2016 opinions that plaintiff could only sit, stand,

and walk for 15 minutes at a time, and could only lift up to ten

pounds occasionally. (See id. at 610-11.) The ALJ found that

the functional limitations noted by Dr. Kreizman were

inconsistent with the record as a whole, and noted that Dr.

Kreizman’s opinions were only relevant to the time period after

he began treating plaintiff in 2015. (Id. at 19.)

The ALJ gave “little weight” to Dr. Moran’s 2016

assessment, finding that it was “ambiguous,” and because it was

based on a one-time assessment for the purpose of determining

whether plaintiff had to comply with work requirements in order

to receive welfare benefits, rather than resulting from a normal

course of medical treatment. (Id. at 18.)

The ALJ gave “little weight” to consultative internist

Dr. Trimba’s January 2017 opinions that plaintiff had moderate

limitations in his ability to sit, stand, walk, push, pull, and

carry heavy objects, and that plaintiff could only sit for one

hour and stand for 30 minutes without interruption. (See id. at

618-24.) The ALJ assigned Dr. Trimba’s opinions “little weight”

because: (1) they were inconsistent with the record as a whole;

(2) plaintiff did not have an MRI on his back since 2002; and

(3) they were inconsistent with objective examinations in the

record that failed to support the opinions regarding functional

limitations. (Id. at 19.)

The ALJ also found that plaintiff’s own testimony

regarding his symptoms and daily activities had little value,

because of purported inconsistencies with the facts that he

participated in part-time computer training, part-time modified

work activity (which was mandated by the local welfare agency),

and part-time job searches. (Id.) The ALJ also discounted

plaintiff’s statements because his treatment was “conservative”

and “routine,” his trips to the doctor were “relatively

infrequent,” and his reliance on a cane was inconsistent with

Dr. Trimba’s findings about the cane. (Id. at 20.)

The ALJ also noted that plaintiff only worked

“sporadically” in 2000 and 2001 (prior to the alleged onset of

his disability in 2002), suggesting that his lack of employment

was not “actually due to medical impairments.” (Id.)

At step four, the ALJ found that plaintiff had no past

relevant work experience. (Id.) At step five, based on the RFC

determination and the testimony of the vocational expert, the

ALJ found that plaintiff was capable of light, unskilled jobs,

such as working as a cashier, routing clerk, or ticket seller.

(Id. at 21.) Accordingly, the ALJ found that plaintiff was not

disabled under the Act. (Id. at 21-22.)

II. The ALJ’s RFC Determination Was Contradicted by the

Weight of the Medical Opinion Evidence

Plaintiff first argues that the ALJ impermissibly

substituted his own judgment for that of the medical

professionals when he found that plaintiff could perform “light

work,” with certain additional limitations. (See ECF No. 21,

Plaintiff’s Memorandum of Law (“Pl. Mem.”), at 6-9.)

“[I]t is well-settled that ‘the ALJ cannot arbitrarily

substitute his own judgment for competent medical opinion.’”

Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (quoting

McBrayer v. Secretary of Health and Human Servs., 712 F.2d 795,

799 (2d Cir.1983)). “While an ALJ is free to resolve issues of

credibility as to lay testimony or to choose between properly

submitted medical opinions, he is not free to set his own

expertise against that of a physician who submitted an opinion

to or testified before him.” Id. (alterations omitted).

Here, the ALJ found that plaintiff could perform

“light work,” “except [that] he [was] limited to lifting and

carrying up to 15 pounds occasionally with stooping, kneeling,

crouching and crawling, all limited to occasional.” (Tr. at

15.) Though the ALJ noted these additional limitations in

plaintiff’s ability to lift, carry, stoop, kneel, crouch, and

crawl, he did not note any additional limitations in plaintiff’s

ability to walk, stand, sit, push, or pull. “Light work”

ordinarily “requires a good deal of walking or standing, or

. . . sitting most of the time with some pushing and pulling of

arm or leg controls.” 20 C.F.R. § 416.967(b).

Although the medical opinion evidence in the record

varied somewhat with regard to plaintiff’s abilities to walk,

stand, and sit, nearly all of the doctors noted at least some

limitations in his ability to do so. (See supra at 3-8.) Dr.

Iqbal observed that plaintiff had moderate limitations with

prolonged walking with a cane, moderate to severe limitations

walking without a cane, and that plaintiff should avoid

prolonged standing and walking. Dr. Torres opined that,

although plaintiff could walk without a cane, he could sit for

only a total of six hours, stand for three hours, and walk for

two and a half hours in an eight-hour workday. Dr. Kreizman,

plaintiff’s treating physician, opined that plaintiff could sit,

stand, and walk for 15 minutes at a time, for a total of one

hour in an eight-hour workday. Dr. Moran, while assessing that

plaintiff could perform part-time work, noted that the work

should include limited standing. Dr. Trimba opined that

plaintiff was mildly to moderately limited in his abilities to

sit, stand, and walk for a prolonged period of time, and that he

could sit for only one hour, stand for only 30 minutes, and walk

for only 20 to 30 minutes without interruption.

“The full range of light work requires intermittently

standing or walking for a total of approximately [six] hours of

an [eight]–hour workday, with sitting occurring intermittently

during the remaining time.” Poupore v. Astrue, 566 F.3d 303,

305 (2d Cir. 2009). None of the medical opinions in the record

support a finding that plaintiff could stand or walk for six

hours during the workday. See Higgins v. Berryhill, No. 17-cv-

5747 (OTW), 2018 WL 6191042, at *22 (S.D.N.Y. Nov. 28, 2018)

(remanding where “the ALJ has failed to cite to any medical

opinion that concluded that Plaintiff could do light work”).

Moreover, the ALJ did not make any specific findings regarding

how long plaintiff could stand or walk. The court, therefore,

finds that the ALJ’s determination that plaintiff could perform

“light work,” without any consideration of additional

limitations for walking, standing, and potentially also sitting,

was not supported by substantial evidence.

III. The ALJ Failed to Properly Apply the Treating Physician

Rule

Next, plaintiff contends that the ALJ failed to

properly apply the treating physician rule by assigning only

“little weight” to Dr. Kreizman’s opinions that plaintiff could

only sit, stand, and walk for 15 minutes at a time, and could

only lift up to ten pounds occasionally. (See Pl. Mem. at 9-

13.)

Under the regulations in place at the time plaintiff

filed his claim, the ALJ was to “defer ‘to the views of the

physician who has engaged in the primary treatment of the

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

2013) (quoting Green-Younger, 335 F.3d at 106).1 “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

1 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 20 C.F.R. §

404.1527(c)(2). Plaintiff applied for benefits in 2007. Accordingly,

the court applies the treating physician rule in the instant case.

See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5

(S.D.N.Y. 2019).

source’s opinion on the issue(s) of the nature and severity of

[a claimant’s] impairment(s)’ will be given ‘controlling weight’

if the opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the

claimant’s] case record.’” Id. (quoting 20 C.F.R. §

404.1527(c)(2)); see also Burgess, 537 F.3d at 128 (describing

this principle as the “treating physician” rule). A treating

source is defined as a plaintiff’s “own physician, psychologist,

or other acceptable medical source” who has provided plaintiff

“with medical treatment or evaluation and who has, or has had,

an ongoing treatment relationship with [the plaintiff].” 20

C.F.R. § 404.1502; see also Bailey v. Astrue, 815 F. Supp. 2d

590, 597 (E.D.N.Y. 2011) (“A treating source’s medical opinion

on the nature and severity of an impairment is given controlling

weight when it is supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with

other substantial evidence in the record.”). Medically

acceptable clinical and laboratory diagnostic techniques include

consideration of a “patient’s report of complaints, or history,

[as] an essential diagnostic tool.” Green–Younger, 335 F.3d at

107.

When a treating physician’s opinion is not afforded

controlling weight, the ALJ must “comprehensively set forth

reasons for the weight assigned to a treating physician’s

opinion.” Halloran, 362 F.3d at 33; see also 20 C.F.R. §

416.927(c)(2) (requiring the Commissioner to “always give good

reasons in [its] notice of determination or decision for the

weight [given to a] treating source’s medical opinion”). The

Commissioner’s regulations enumerate several factors that may

guide an ALJ’s determination of what weight to give to a

treating source’s opinion: (1) the length, frequency, nature,

and extent of the treating relationship, (2) the supportability

of the treating source opinion, (3) the consistency of the

opinion with the rest of the record, (4) the specialization of

the treating physician, and (5) any other relevant factors. 20

C.F.R. § 416.927(c)(2)-(6). The ALJ is not required to cite

each factor explicitly in the decision, but must ensure he

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

The regulations also require that the ALJ “always give good

reasons” in determining the weight assigned to the claimant’s

treating source’s opinion. See 20 C.F.R. § 416.927(c)(2); see

also Schaal, 134 F.3d at 503.

Here, the ALJ gave “little weight” to the opinions of

Dr. Kreizman, who treated plaintiff on multiple occasions in

2015 and 2016. (See Tr. at 19.) The ALJ found that Dr.

Kreizman’s opinions were “inconsistent with the records as a

whole, which reveal[ed] improvement in 2016 and the ability to

ambulate without a cane,” and noted that Dr. Kreizman’s

“opinion[s] only date[d] back to 2015, which [left] the prior

period unopined.” (Id. at 18-19.) That was the extent of the

reasoning provided by the ALJ for discounting Dr. Kreizman’s

opinions.

The Commissioner argues that the ALJ’s reasons for

discounting Dr. Kreizman’s opinions, which were that they were

only relevant to the time period after he began treating

plaintiff in 2015 and that they were inconsistent with the other

treatment records available, were sufficiently good reasons.

(See ECF No. 22, Defendant’s Reply Memorandum, at 4-6.) The

court does not agree. Though there was medical opinion evidence

in the record that contradicted the limitations identified by

Dr. Kreizman, those opinions were from doctors who examined

plaintiff only once, or who did not examine plaintiff at all.

The point of the treating physician rule was to encourage the

ALJ to recognize that a “treating physician is usually more

familiar with a claimant’s medical condition than are other

physicians[.]” Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.

1986). The ALJ failed to account for Dr. Kreizman’s familiarity

with plaintiff. Moreover, Dr. Kreizman’s opinions had at least

some support from the objective medical evidence in the record,

including MRIs as far back as 2002 that showed bulging discs,

herniated discs, and other problems with plaintiff’s back, as

well as problems with plaintiff’s knee and shoulder. (See supra

at 2-3.)

The fact that Dr. Kreizman’s treatment began in 2015

meant that his opinions could only be relevant to whether

plaintiff was disabled during that time period,2 but that was not

a reason to discount the opinions entirely. See Maroulis v.

Colvin, No. 16-cv-2427 (DF), 2017 WL 7245388, at *26 (S.D.N.Y.

Jan. 18, 2017) (“[T]he question of whether Plaintiff’s allegedly

disabling conditions had ‘improved’ . . . after her onset date

[] would, at best, have been relevant to only a portion of the

period that was supposed to have been under consideration.”).

It may have been possible for plaintiff to have been disabled

during that time period, but not the prior period, if his

condition has worsened. Thus, the court finds that the ALJ’s

cursory dismissal of Dr. Kreizman’s opinions violated the

treating physician rule.

This legal error was compounded when the ALJ accorded

“great weight” to a portion of the opinions of Dr. Torres, a

consultative examiner. (See Tr. at 17-18.) The only reasoning

provided by the ALJ for ascribing so much weight to part of Dr.

Torres’s opinion was that it was “consistent with the medical

evidence of record.” (Id. at 18.) The ALJ did not explain

2 If there were gaps in the record prior to 2015, the ALJ had an “affirmative

duty to develop the administrative record” and “to fill” those gaps.

Burgess, 537 F.3d at 129.

which specific evidence supported Dr. Torres’s opinion, just as

he did not explain which evidence contradicted Dr. Kreizman’s.

On remand, the ALJ should reconsider the weight

assigned to these medical opinions, and cite specific evidence

that contradicts or supports them.3 The ALJ is reminded that,

even if he determines that Dr. Kreizman’s opinions are not

entitled to “controlling weight,” a treating physician’s opinion

is generally still “entitled to some extra weight” because of

the treating physician’s “familiar[ity]” with the claimant.

Schisler, 787 F.2d at 81.

IV. After Reconsidering the Medical Opinion Evidence, the ALJ

Should Reconsider Plaintiff’s Subjective Statements

Finally, plaintiff argues that the ALJ erred by making

an adverse finding regarding plaintiff’s statements about his

own symptoms. (See Pl. Mem. at 16-22.)

The Commissioner’s regulations provide a two-step

framework for evaluating a claimant’s subjective symptoms as

part of the RFC analysis: (1) the ALJ must determine whether

there is an underlying medically determinable physical or mental

impairment that can reasonably be expected to produce the

claimant’s pain or other symptoms; and (2) the ALJ must then

3 Plaintiff also argues that the ALJ erred by assigning “little weight” to Dr.

Trimba’s opinions. (See Pl. Mem. at 15-16.) In light of the court’s

decision to remand based on the ALJ’s handling of Dr. Kreizman’s opinions,

the court declines to fully evaluate the ALJ’s handling of Dr. Trimba’s

opinions. However, on remand, the ALJ should reconsider all of the medical

opinions, and to cite specific evidence that supports or contradicts them.

evaluate the intensity, persistence and limiting effects of the

claimant’s symptoms to determine the extent to which they limit

the claimant’s functionality by examining the objective medical

evidence. 20 C.F.R. §§ 404.1529(b). At the second step, the

ALJ “will” consider the following factors:

(i) [the claimant’s] daily activities; (ii) [t]he

location, duration, frequency, and intensity of [the

claimant’s] pain or other symptoms; (iii)

[p]recipitating and aggravating factors; (iv) [t]he

type, dosage, effectiveness, and side effects of any

medication . . . taken to alleviate . . . pain or other

symptoms; (v) [t]reatment, other than medication, . . .

received for relief of [the] pain or other symptoms;

(vi) [a]ny measures . . . used to relieve . . . pain or

other symptoms; and (vii) [o]ther factors concerning

[the claimaint’s] functional limitations and

restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

Here, the ALJ appeared to properly consider certain

of the relevant factors. For example, the ALJ found that

plaintiff’s daily activities, such as searching for work,

working a part-time job, and completing a computer training

program, suggested that his symptoms may not have been as severe

as he reported. (Tr. at 19.) However, the ALJ also asserted,

in conclusory fashion, that the medical opinions did not

“indicat[e] that the claimant [was] currently disabled.” (Id.)

After reconsidering the appropriate weight to be applied to each

medical opinion, the ALJ should also reconsider whether the

opinions support plaintiff’s alleged symptoms. Plaintiff’s

reported symptoms appear to be consistent at least with Dr.

Kreizman’s opinions, and also possibly with the MRIs showing the

damage to plaintiff’s back, knee, and shoulder. Thus, the ALJ

should reconsider whether the record supports plaintiff’s

statements after determining how much weight to assign to Dr.

Kreizman’s opinions.

Conclusion

For the foregoing reasons, plaintiff’s motion for

judgment on the pleadings is GRANTED, defendant’s motion for

judgment on the pleadings in DENIED, and this case is REMANDED

for further proceedings consistent with this Memorandum and

Order. The Clerk of Court is directed to enter judgment

remanding this case, and to close the case.

SO ORDERED.

Dated: Brooklyn, New York

January 12, 2021

__________/s/________________

Hon. Kiyo A. Matsumoto

United States District Judge