Selembo v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL ANTHONY SELEMBO,

MEMORANDUM AND ORDER

Plaintiff, 19-CV-2902 (KAM)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C.§ 405(g), Michael Anthony Selembo

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

Social Security (“Defendant”), which found that Plaintiff was

not eligible for disability insurance benefits (“DIB”) under

Title II of the Social Security Act (“the Act”) on the basis

that Plaintiff is not disabled within the meaning of the Act.

Plaintiff alleges that he is disabled under the Act and is thus

entitled to receive the aforementioned benefits. Specifically,

Plaintiff contends that because the Administrative Law Judge

(“ALJ”) did not properly weigh plaintiff’s treating physician’s

opinion and the ALJ’s mental capacity finding was not supported

by substantial evidence, remand is required.

Presently before the court is plaintiff’s motion for

judgment on the pleadings,(ECF No. 15, Plaintiff’s Motion for

Judgment on the Pleadings; ECF No. 16, Plaintiff’s Memorandum of

Law in Support of Plaintiff’s Motion for Judgment on the

Pleadings (“Pl. Mem.”)), defendant’s cross-motion for judgment

on the pleadings and in opposition to plaintiff’s motion for

judgment on the pleadings, (ECF No. 17, Defendant’s Cross-Motion

for Judgment on the Pleadings; ECF No. 18, Defendant’s

Memorandum of Law in Support of Defendant’s Motion for Judgment

on the Pleadings and in Opposition to Plaintiff’s Motion for

Judgment on the Pleadings (“Def. Mem.”)), and plaintiff’s reply

memorandum of law in support of plaintiff’s motion for judgment

on the pleadings (ECF No. 19, (“Pl. Reply”).) For the reasons

stated below, plaintiff’s motion is GRANTED, defendant’s motion

is DENIED, and the case is remanded for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

The parties have submitted a joint stipulation of

facts detailing plaintiff’s medical history and the

administrative hearing testimony, which the court incorporates

by reference. (See generally ECF No. 19-1, Joint Stipulation of

Facts (“Stip.”).) On May 30, 2015, plaintiff filed an

application for DIB benefits. (ECF No. 20, Administrative

Transcript (“Tr.”) at 15.) Mr. Selembo’s alleged disability

onset date was July 27, 2014. (Tr. at 15.) Plaintiff claimed

he was disabled as a result of a slipped disk which occurred

around July 2014, resulting in back pain and pain in his left

leg. (Id. at 46; Stip. at 6.) Plaintiff alleges that this

severe pain led to issues with anxiety and depression. (Stip.

at 17.) Plaintiff’s application was denied on February 9, 2016.

(Id.)

On February 13, 2018, Plaintiff requested a hearing

before an ALJ. (Id.) On February 13, 2018, ALJ Jesus Ortis held

a hearing in Baltimore, Maryland. (Id. at 36.) Plaintiff was

represented by counsel, and a vocational expert (“VE”), Jessica

Earl, was present and testified at the hearing. (Id.) On March

8, 2018, the ALJ denied Plaintiff’s application, finding that

Plaintiff was not disabled within the meaning of §§ 216(i) and

223(d) of the Social Security Act. (Tr. 29.) On April 16, 2018,

Plaintiff requested a review of the ALJ’s decision. (Tr. 152-

156.) On March 18, 2019, the Appeals Council of the Office of

Disability Adjudication and Review denied Plaintiff’s request for

review of the ALJ’s decision, rendering the ALJ’s decision the

final decision of the Commissioner. (Tr. 1.)

On May 16, 2019, plaintiff filed the instant action in

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

On May 21, 2019, this court issued a scheduling order. (ECF No.

6, Scheduling Order.) On December 9, 2019, the Commissioner filed

a motion for extension of time to file the Commissioner’s cross

motion. (ECF No. 12, Consent Motion for Extension of Time.) On

December 10, 2019, the court granted the motion. (Dkt. Order dated

12/10/2019.)

On March 27, 2020, plaintiff filed his notice of motion

and memorandum of law in support of plaintiff’s motion for judgment

on the pleadings. (ECF Nos. 15 and 16.) On that same day,

defendant filed his cross-motion and memorandum of law in support

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

opposition of plaintiff’s motion for judgment on the pleadings.

(ECF Nos. 17 and 18.) Later that same day, plaintiff filed her

reply memorandum of law. (ECF No. 19.)

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 determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

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

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess 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) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might have justifiably reached a different result. Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

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

423(a), (d). A claimant is disabled under the Act when 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 (internal quotation marks and citation

omitted); 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). At 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, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

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

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

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

warranted where “there are gaps in the administrative record or

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) (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. However, if the record before

the court provides “persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose,” the

court may reverse and remand solely for the calculation and

payment of benefits. See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the regulations,

the ALJ determined at step one that the plaintiff had not

engaged in substantial gainful activity since July 27, 2014, the

alleged onset date of her disabilities. (Tr. at 17.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of degenerative disc disease,

dysfunction major joints—bilateral knee pain, status-post knee

arthroscopies, and depression. (Id.) The ALJ also determined

that Plaintiff’s combination of impairments was severe under 20

C.F.R. 404.1520(c) and noted that the Plaintiff’s ability to

perform basic work functions was significantly limited. (Id.)

At step three, the ALJ determined that plaintiff did

not have an impairment or combination of impairments that meets

or medically equals Medical Listing 1.02 (major disfunction of

joints), Medical Listing 1.04 (disorders of the spine), or

Medical Listing 12.04 (depressive, bipolar and related

disorders). (Id. at 18.) Specifically, plaintiff’s knees did

not meet the criteria set forth under 1.02 because the record

“did not demonstrate gross anatomical deformity and chronic

joint pain.” (Id.) Plaintiff also failed to meet the criteria

set forth under 1.04 for spinal disorders based on the evidence

in the record. (Id.) The ALJ also determined that the criteria

set forth in paragraph B of Medical Listing 12.04 for mental

health conditions was not satisfied because the ALJ found that

plaintiff had moderate (not marked) limitations in

understanding, remembering, or applying information;

concentrating, persisting, or maintaining pace. (Id. at 19.)

At step four, the ALJ found that plaintiff had the

Residual Functional Capacity (“RFC”):

to perform sedentary work as defined in 20

C.F.R. §404.1567(a) except he can occasionally

climb ramps/stairs; never climb ladders,

ropes, and scaffolds; and occasionally

balance, stoop, kneel, crouch, and crawl. The

[Plaintiff] can never work at unprotected

heights. He can perform simple, routine tasks

and simple work-related decisions. (Tr. 19.)

The ALJ concluded that although plaintiff’s medically

determinable impairments could reasonably be expected to cause

the alleged symptoms, plaintiff’s statements concerning the

intensity, persistence, and limiting effects of these symptoms

were not entirely consistent with the medical evidence and other

evidence in the record. (Id. at 20.) The ALJ compared

plaintiff’s testimony to plaintiff’s medical records and

determined that when plaintiff is provided with treatment, he

has been successful in controlling disabling symptoms. (Id. at

24.) The ALJ concluded that plaintiff would be capable of

performing a reduced range of sedentary exertional level work.

(Id. at 26.)

At step five, the ALJ found that, based on plaintiff’s

age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in

the national economy that plaintiff can perform (20 C.F.R.

404.1569 and 404.1569(a)). (Id at 27-28.) The VE testified

that plaintiff would be able to perform the requirements of

occupations such as document preparer, final assembler, and

table worker. (Id. at 28.) Thus, the ALJ concluded that

plaintiff was not disabled within the meaning of the Act, as

defined in 20 C.F.R. § 404.1520(g) since July 27, 2014, through

the date of the hearing. (Id.)

II. Treating Physicians’ Opinions

Plaintiff challenges the ALJ’s RFC determination based

on the ALJ’ weight of the treating medical sources’ opinions. (Pl.

Mem. at 16-19.) The ALJ gave “great weight” to Dr. Trimba’s

opinion, “partial weight” to Dr. Lin’s opinion, and “little weight”

to the opinions of Dr. Georgiou and Dr. Schwab.

a. Legal Standard

Under the treating physician rule, a “treating source’s

opinion on the issue of the nature and severity of a [claimant’s]

impairment(s) will be given ‘controlling weight’ if the opinion is

‘well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in the case record.’” Greek v. Colvin, 802

F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d

117, 128 (2d Cir. 2008)); 20 C.F.R. §§ 404.1527(c)(2).1 See

Molina v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y.

Aug. 7, 2014) (finding the opinion of a treating physician “need

1 Because plaintiff’s application for disability and disability insurance

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

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

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

weight.

not be given controlling weight where [it is] contradicted by other

substantial evidence in the record.”).

An ALJ who does not accord controlling weight to the

treating physician’s medical opinion must consider various factors

to determine how much weight to give to the opinion, including:

“(i) the frequency of examination and the length, nature and extent

of the treatment relationship; (ii) the amount of medical evidence

in support of the treating physician's opinion; (iii) the

consistency of the opinion with the record as a whole; and (iv)

whether the opinion is from a specialist.” Estrella v. Berryhill,

925 F.3d 90, 95 (2d. Cir. 2019) (quoting Burgess, 537 F.3d at 128);

see 20 C.F.R. § 404.1527(c)(2); see also Adukpo v. Berryhill, 19-

cv-2709 (BMC) 2020 WL 3410333, at *1 (E.D.N.Y. Jun. 22, 2020).

“The ALJ must then ‘comprehensively set forth his

reasons for the weight assigned to a treating physician’s

opinion.’” Cichocki v. Astrue, 534 F. Appx. 71, 74 (2d Cir. 2013)

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

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

of the treating provider. Cervini v. Saul, 17-CV-2128 (JMA) 2020

WL 2615929 at *5 (E.D.N.Y. May 21, 2020) (citing Schaal, 134 F.3d

496, 503 (2d Cir. 1998)). Good reasons “reflect in substance the

factors as set forth in [Section] 404.1527(d)(2), even though the

ALJ declines to examine the factors with explicit reference to the

regulation.” Abate v. Comm’r, 18-CV-2040 (JS), 2020 WL 2113322,

at *4 (E.D.N.Y. May 4, 2020); Atwater v. Astrue, 512 F. App'x 67,

70 (2d Cir. 2013) (“We require no such slavish recitation of each

and every factor where the ALJ's reasoning and adherence to the

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

reasons for not crediting the opinion of a claimant's treating

physician is a ground for remand.’” Greek, 802 F.3d at 375

(quoting Burgess, 537 F.3d at 129-30).

A. Dr. Frank Schwab, Orthopedic Surgeon, and Dr. Trimba,

Physiatrist

In assessing the weight assigned to Dr. Schwab’s

opinion, ALJ Ortis concluded that Dr. Schwab’s assessment that

plaintiff should not return to work was “intended as a temporary

restriction, not an overall assessment of the claimant’s

longitudinal ability to function.” (Tr. at 26.) Though the ALJ

may be correct, the ALJ failed to note Dr. Schwab’s long and

involved treatment relationship with the plaintiff and instead

only focused on Dr. Schwab’s medical source statement from August

2014. (Id.) Dr. Schwab, however, was treating plaintiff through

2015 and operated on plaintiff’s herniated discs in November 2014.

(Tr. 349-354.) The ALJ makes a conclusory statement in assessing

Dr. Schwab’s medical opinion, fails to assess whether the medical

opinion is inconsistent with the record as a whole, and does not

provide “good reasons” for according limited weight to Dr. Schwab’s

opinion regarding plaintiff’s disability.

The ALJ instead chooses to accord “great weight” to the

opinion of Dr. Trimba, the consultative examiner. (Tr. at 25.)

Based on one examination with the plaintiff on February 3, 2016,

Dr. Trimba opined that plaintiff “has moderate limitation in his

ability to climb steps, push, stand, and walk for a prolonged time”

and that plaintiff should avoid “frequent bending” and “squatting

and kneeling.” (Id.; Stip. at 20-21.) The Second Circuit has

cautioned that “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). And where only one

consultant disagrees with the treating physician, the latter's

opinion should ordinarily remain controlling. See Rankov v.

Astrue, No. 11–CV–02534 (CBA), 2013 WL 1334085 at *9 (E.D.N.Y.

Mar.30, 2013).

Where a plaintiff's medical sources have differing RFC

opinions, “[a]n ALJ's failure to reconcile such materially

divergent RFC opinions of medical sources is [ ] a ground for

remand.” Cabassa v. Astrue, No. 11–CV–1449, 2012 WL 2202951, at

*7 (E.D.N.Y. June 13, 2012). This is especially true where the

ALJ discounts the opinion of the treating physician. See Kennedy

v. Astrue, 343 F. App'x 719, 721 (2d Cir.2009) (summary order)

(“Where an ALJ fails properly to acknowledge [the treating

physician rule] or to provide ‘good reasons' for the weight given

to the treating physician's opinion, we do not hesitate to remand.”

(citation omitted)).

Because the ALJ has neither acknowledged nor applied the

treating physician rule or discussed with any specificity the

factors he should have considered in evaluating the treating

physician's opinion, remand is appropriate. Though the medical

record may provide good reasons for favoring Dr. Trimba’s opinion,

under the treating physician rule, the ALJ must explain these

reasons. On remand, the ALJ must state his findings and provide

good reasons for the weight he accords to Dr. Schwab’s opinion

with reference to specific elements of the medical record. The

ALJ shall consider and discuss his application of the factors set

out in 20 C.F.R. §§ 404.1527(c)(2)-(6). Finally, the ALJ shall

reconcile Dr. Schwab’s opinion with that of Dr. Trimba and any

other relevant medical evidence and opinions in the record,

explaining what evidence he relied on in making his determination.

B. Dr. Lin, Neurologist

ALJ Ortis gave Dr. Lin’s medical opinion “partial

weight,” (Tr. at 25), because Dr. Lin “merely checked off boxes on

a form rather than provide an explanation for the limitations

given.” (Id.) The ALJ also determined that because Dr. Lin did

not opine on plaintiff’s ability to perform work-related tasks,

the lack of an opinion was inconsistent with Dr. Lin’s opinions as

a whole. (Id.)

It is true that a checklist-type form does not provide

a great deal of medical evidence and may warrant giving the

opinion less weight. See Halloran v. Barnhart, 362 F.3d 28, 31

n. 2 (2d Cir. 2004)(finding the standardized form only

“marginally useful” for assessing the record). However, along

with the standardized form, Dr. Lin also included some

handwritten notes on the checklist, (Tr. at 493-497), and

separately provided a summary of his assessment of plaintiff’s

MRI and his plan for plaintiff’s condition. (Tr. 501-503.) On

the checklist, Dr. Lin wrote “patient is limited due to pain . .

. in the back and radiates to the lower extremity.” (Tr. 501.)

Dr. Lin determined that the MRI showed “multi-level degenerative

changes without significant canal stenosis or cord compression.”

(Tr. 503.) Based on the MRI, the ALJ found that plaintiff has

“multi-level degenerative disease of the spine” and that his

pain “will be best managed under conservative therapy” and Dr.

Lin referred plaintiff to pain management. (Id.) The ALJ

apparently did not consider, much less comment on the inclusion

of the handwritten notes, nor Dr. Lin’s report after assessing

the MRI. (Id. 25.)

The ALJ acknowledges that Dr Lin is an “acceptable

medical source with a treating relationship with the claimant,”

(Id.), but makes a conclusory determination that Dr. Lin’s

opinion that plaintiff is limited in his ability to stand and

walk “does not sufficiently account for plaintiff’s back and

knee pain.” (Id.) ALJ Ortis failed to consider the Burgess

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

Lin’s relationship with the plaintiff, or provide a persuasive

rationale supporting the weight given. See Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008); Greek v. Colvin, 802 F.3d 370,

375 (2d Cir. 2015); Balodis v. Leavitt, 704 F. Supp. 2d 255, 268

(E.D.N.Y. 2010) (citing Risitano v. Comm'r of Soc. Sec., No. 06–

CV–2206(FB), 2007 WL 2319793, at *5 (E.D.N.Y. Aug. 9, 2007)

(remanding the case and directing the ALJ to “identify the

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

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

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

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

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

reasonable basis to doubt whether the ALJ applied the correct

legal standard in weighing the opinions of [the treating

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

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

Accordingly, remand is warranted because the ALJ did

not any provide “good reasons” for giving the treating

physician’s opinions less weight. Instead, the ALJ primarily

relied on the format in which the treating physician’s opinion

was rendered. At the very least, ALJ should provide reasons why

Dr. Lin’s opinion, in whichever format, should not be given

controlling weight. On remand, the ALJ must explain his

consideration of Dr. Lin's opinions on the form and in his notes

and other records, a statement of the weight given to those

opinions, and good reasons for the ALJ's decision.

C. Dr. Georgiou, Psychologist

ALJ Ortis gave “little weight” to Dr. Georgiou’s

opinion that plaintiff’s mental health difficulties may

interfere with plaintiff’s ability perform daily functions and

that plaintiff has “difficulty relating with others at this time

and dealing with stress.” (Tr. 25.) The ALJ considered the

longevity Dr. Georgiou’s treatment relationship with plaintiff

and stated that the opinion was based on a “one-time

evaluation,” and that Dr. Georgiou did not have “the

longitudinal relationship with the claimant to assess his

overall level of functioning.” (Id.) ALJ Ortis also found that

Dr. Georgiou’s opinion was inconsistent with her own findings

because Dr. Georgiou noted plaintiff’s positive relationships

with family and noted that plaintiff “recalled three of three

objects immediately” and “recalled seven digits forward and

three backwards.” (Id. at 26.)

The ALJ failed to assess Dr. Georgiou’s diagnosis that

plaintiff had “unspecified depressive disorder” and her

recommendation that plaintiff would benefit from “psychiatric

and psychological treatment.” (Id. at 506.) The ALJ also

failed to assess the noted depressive symptoms including

“feeling dysphoric, irritable, frustrated, unhappy, and

disappointed.” (Id. at 504.)

The court finds that the ALJ cherry-picked parts of

Dr. Georgiou’s medical opinion that supported the conclusion,

while ignoring the portions of the opinion that did not further

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

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

is cognizant that an ALJ may “only credit portions of

a medical source opinion, or weigh different parts of

the opinion differently,” however, the ALJ must always

“provid[e] sound reasons for the discrepancy.” Destina, 2018 WL

4964103, at *7. Here, the ALJ did not provide any reasons at

all for the selective cherry-picking of Dr. Georgiou’s opinion.

See Clarke v. Colvin, No. 15-cv-354, 2017 WL 1215362, at *9

(S.D.N.Y. Apr. 3, 2017) (quoting Rodriguez v. Astrue, No. 07-cv-

534, 2009 WL 637154, at *25 (S.D.N.Y. Mar. 9, 2009) (An “ALJ may

not ‘pick and choose evidence which favors a finding that the

claimant is not disabled.’”).

Accordingly, the court finds that the ALJ improperly

accorded little weight to the opinions and findings of Dr.

Georgiou. On remand, the ALJ is directed to comprehensively

weigh and apply the regulatory factors and consider the record

in its entirety to determine the weight of Dr. Georgiou’s

opinion. If the ALJ determines that Dr. Georgiou’s opinion is

not entitled to controlling weight, the ALJ “must nonetheless

articulate a basis for the alternative weight assigned.” Knight

v. Comm’r, 18-CV-2474 (KAM) 2020 WL 3085778 at *7 (E.D.N.Y. Jun.

10, 2020).

D. Dr. Li, Pain Management

Plaintiff contends that the ALJ “failed to properly

consider medical records from Dr. Wensong Li” and “these records

provide important clinical findings.” (Pl. Mem. at 20.) Remand

is required because ALJ Ortis failed to state how much weight he

accorded the opinion of Dr. Li, and if he gave Dr. Li’s opinion

less than controlling weight, he failed to provide good reasons

for doing so. Here, Dr. Li treated plaintiff from June 2015

through October 2017. (Stip. at 9-17.) During plaintiff’s

visits with Dr. Li, plaintiff complained of pain in his lower

back and received injection treatments for the pain. (Id.) Dr.

Li consistently advised plaintiff to avoid heavy lifting and

carrying due to his condition. (Id.) Dr. Li’s diagnoses were

“lumbar spondylosis, lumbosacral neuritis, post laminectomy

syndrome, lumbar disc displacement, spinal stenosis, [and] other

chronic pain.” (Stip. at 10.)

When controlling weight is not given to a treating

physician's opinion, the Regulations require the ALJ to

“comprehensively set forth reasons for the weight assigned to a

treating physician's opinion.” Halloran, 362 F.3d at 33; see

also Jeffcoat v. Astrue, No. 09–CV–5276, 2010 WL 3154344, at 14

(E.D.N.Y. Aug.6, 2010) (remanding because the ALJ failed to

comprehensively set forth his reasons for the weight assigned to

the treating physician's opinions because he failed to state

what weight he accorded to the opinion or to consider the

guiding factors); 20 C.F.R. § 404.1527(d)(2) (the Commissioner

“will always give good reasons in [its] notice of determination

or decision for the weight [given to a] treating source's

opinion.”)(emphasis added).

ALJ Ortis failed to provide good reasons for the

weight, or lack of weight, given to Dr. Li’s opinion and is

directed to comprehensively weigh and apply the regulatory

factors and consider the record in its entirety to determine the

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

opinion is not entitled to controlling weight, the ALJ “must

nonetheless articulate a basis for the alternative weight

assigned.” Knight v. Comm’r, 18-CV-2474 (KAM) 2020 WL 3085778

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

III. Evaluation of Plaintiff’s Subjective Statements

Plaintiff contends that the ALJ “failed to properly

consider relevant medical and other evidence in evaluating the

Plaintiff’s symptoms of pain.” (Pl. Mem. at 20.) Defendant,

however, argues that plaintiff’s complaints were inconsistent

with the medical evidence in the record. (Def. Mem. at 15-16.)

Because this court has determined that remand is necessary given

the ALJ’s failure to properly weigh the treating physicians’

opinions, the ALJ shall newly consider plaintiff’s subjective

complaints once proper consideration is given to the treating

physicians.

CONCLUSION

For the reasons previously set forth, 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: April 15, 2021

Brooklyn, New York

_______ //s//

Kiyo A. Matsumoto

United States District Judge