# Palmer v. Commissioner of Social Security

> District Court, E.D. New York · January 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10305553

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 12, 2021
- **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/10305553

## How later opinions describe it (automated extraction)

- describing this principle as the “treating physician” rule

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X

MICHAEL PALMER,

Plaintiff,
MEMORANDUM AND ORDER
-against-
19-CV-5170(KAM)
COMMISSIONER OF THE SOCIAL SECURITY
ADMINISTRATION,

Defendant.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305553. Public record. Not legal advice.