Muldoon v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SCOTT MULDOON, MEMORANDUM & ORDER

Plaintiff, 19-cv-07236 (KAM)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), plaintiff Scott

Muldoon (“plaintiff”), appeals the final decision of the

Commissioner of Social Security (“defendant” or the

“Commissioner”), denying plaintiff’s application for Disability

Insurance Benefits (“DIB”) under Title II of the Social Security

Act (the “Act”), 42 U.S.C. §§ 301 et seq., on the grounds that

plaintiff was not disabled within the meaning of the Act.

On appeal, plaintiff asserts that the determination

that he was not disabled is not supported by substantial

evidence and suffers from numerous legal errors. (ECF No. 15,

Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (“Pl. Mem.”) at 10.)

Presently before the court is plaintiff’s motion for

judgment on the pleadings, (ECF No. 14, Motion for Judgment on

the Pleadings), plaintiff’s memorandum of law, (Pl. Mem.),

defendant’s cross-motion for judgment on the pleadings (ECF No.

16, Cross Motion for Judgment on the Pleadings), and defendant’s

memorandum of law in support thereof. (ECF No. 17, 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.”).) Also before the court

are the parties’ joint stipulation of facts detailing

plaintiff’s medical history and the administrative hearing

testimony. (ECF No. 17-1, Joint Stipulation of Facts

(“Stip.”).)

For the reasons set forth below, the court GRANTS the

plaintiff’s motion for judgment on the pleadings, and DENIES

Commissioner’s cross-motion to the extent that the court vacates

the Commissioner’s decision and remands this matter for further

proceedings consistent with this Memorandum and Order.

BACKGROUND AND PROCEDURAL HISTORY

The court adopts the factual and procedural background

set forth in the Administrative Transcript1; the Administrative

Law Judge’s July 26, 2019 decision (the “2019 ALJ Decision,” Tr.

305-19), the Stip., and the parties’ respective motions for

judgment on the pleadings. This Memorandum and Order discusses

1 Citations to the administrative record are indicated by the abbreviation

“Tr.”

only those facts relevant to the court’s determination as set

forth herein.

On May 23, 2013, the plaintiff filed an application

for DIB Benefits. (Tr. at 12.) The plaintiff claimed he was

disabled as a result of a left knee impairment and posttraumatic

stress disorder. (Id. at 192.) Plaintiff’s alleged disability

onset date was May 1, 2012. (Id.) Plaintiff’s application was

denied on July 29, 2013. (Id. at 76-87.)

On August 6, 2013, plaintiff filed a written request

for a hearing before an Administrative Law Judge (“ALJ”). (Id.

at 89.) On December 11, 2014, ALJ Dina R. Lowey held a video

hearing from New York, during which plaintiff appeared in Staten

Island and was represented by an attorney. (Id. at 29.)

Plaintiff and Rachel Ducan, a vocational expert (“VE”),

testified at the hearing. (Id. at 28.)

In a decision dated February 23, 2015, the ALJ found

plaintiff was not disabled (the “2015 ALJ Decision”). (Tr. 12-

20.) Plaintiff thereafter requested a review of the 2015 ALJ

decision with the Appeals Council, who declined to disturb the

ALJ decision in a determination on August 4, 2016. (Tr. at 1)

The plaintiff commenced an action in federal court for review of

the decision. (Pl. Mem. At 1.) After plaintiff moved for

judgment on the pleadings, the parties stipulated to a remand to

an ALJ for further administrative proceedings to re-evaluate,

among other things, the severity, onset, and limiting factors of

plaintiff’s mental impairments. (Tr. at 389-92.) The District

Court approved the remand on July 28, 2017. (Id. at 390.)

As the current case was pending on appeal, plaintiff

protectively filed a subsequent application for DIB on April 24,

2017, citing PTSD and depression and an alleged onset date of

November 30, 2016. (Id. at 396, 401.) The State agency found

plaintiff was disabled beginning November 30, 2016. (Id.) On

October 13, 2017, however, the Appeals Council vacated the

decision, remanded the claim, and consolidated the claim with

the initial application at issue here. (Id. at 397.)

On January 3, 2019, ALJ Dina R. Loewy held a video

hearing from Jersey City, during which plaintiff was represented

by an attorney. (Id. at 330.) During the hearing, the ALJ

requested primary care provider records since 2015 and a

pharmacy log. (Id. at 334.). ALJ Loewy then held another

hearing on May 30, 2019 from New York, during which plaintiff

was represented by an attorney and testified as to the limiting

factors of his injuries. (Id. at 339.) VE Irene Montgomery

also testified at the hearing. (Id.).

In a decision dated July 26, 2019, the ALJ again

issued a written decision (the “2019 ALJ Decision”) finding

plaintiff was not disabled within the meaning of the Act at any

time from the alleged onset date. (Tr. at 308-19.) On August

20, 2019, plaintiff appealed the ALJ’s decision to the Appeals

Council. (Id. at 696.) On December 13, 2019 the Appeals

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

decision the final decision of the Commissioner. (Id. at 299.)

On December 26, 2019, plaintiff filed the instant

action in federal court. (See generally ECF No. 1, Complaint

(“Compl.”).) On January 7, 2020, this court issued a scheduling

order. (ECF No. 5, Scheduling Order.) Commissioner requested

and was granted several extensions of time to file, in addition

to a series of stays due to the impact of the COVID-19 pandemic.

(ECF Nos. 7, 8, 9, 10; Dkt. Orders dated 3/24/2020, 4/15/2020,

5/15/2020, 6/16/2020.) This court issued an updated scheduling

order on July 14, 2020. (Dkt. Order 7/14/2020.) Commissioner

requested one additional extension of time to file, which the

court granted. (ECF No. 13, Dkt. Order 11/24/2020.)

On December 14, 2020, plaintiff filed his motion and

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

on the pleadings. (ECF Nos. 14 and 15.) 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. 16 and 17.)

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 as 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 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 F3.d 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 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 engaged in

substantial gainful activity in 2015 and 2016, after the alleged

onset date of May 1, 2012. (Tr. at 310.) At step two, the ALJ

found that plaintiff suffered from severe impairments of major

depressive disorder, post-traumatic stress disorder, adjustment

disorder, anxiety disorder, substance abuse disorder, left-knee

disorder, sleep apnea, hearing loss, and obesity. (Id. at 311)

The ALJ found that plaintiff’s medically determinable

impairments significantly limited plaintiff’s ability to perform

basic work activities. (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 a

joint), 2.10 (hearing loss not treated with cochlear implant),

3.02 (chronic respiratory disorders), 3.03 (asthma), 12.04

(depressive, bipolar and related disorders), 12.06 (anxiety and

obsessive-compulsive disorders), or 12.15 (trauma- and stressor-

related disorders). (Id. at 311-12, 20 C.F.R. §§ 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925, 416.926.)

Specifically, the criteria set forth in Listing 1.02 were not

satisfied because plaintiff had a normal gait without use of an

assistive device. (Tr. at 311.) Listing 2.10 was not satisfied

because the record did not show sufficient hearing loss. (Id.).

Listings 3.02 and 3.03 were not met because there was no

evidence of chronic impairment meeting the criteria in the

listings. (Id.)

Moreover, the criteria set forth in paragraph B of

Medical Listings 12.04, 12.06, or 12.15 were not satisfied

because the ALJ found that plaintiff had moderate (not marked or

extreme) limitations in understanding, remembering, or applying

information; interacting with others; concentrating, persisting,

or maintaining pace; or adapting or managing themselves. (Id.

at 312-13.) In making this determination, the ALJ referenced,

inter alia, plaintiff’s consultative examination with Dr.

Lefkowitz on June 11, 2013 (Exhibit 2F), plaintiff’s mental

status examinations from treating psychiatrists in 2013 and 2014

(Exhibits 1F, 5F), and mental status reports his most recent

treating psychiatrist, Dr. Kharitonova, from 2016 through 2019

(Exhibits 14F, 16F, 22F). (Tr. at 313.) Additionally, the ALJ

found that the criteria set forth in paragraph C of Medical

Listings 12.04, 12.06, or 12.15 were not satisfied based on the

evidence in the record. (Id.)

At step four, the ALJ found that plaintiff had the

Residual Function Capacity (“RFC”) to perform medium work, but

with the following limitations: (1) the ability to perform only

simple, routine, and repetitive tasks; (2) the ability to

perform low-stress jobs, requiring only occasional decision-

making and only occasional changes in work setting; (3) the need

to have only occasional interaction with the public or

coworkers; (4) the need to avoid all exposure to hazardous

machinery, unprotected heights, or operational control of moving

machinery; (5) the need to avoid driving a motor vehicle; (6)

the need to perform jobs not requiring frequent or complex

verbal communications, no high ambient noise, and only moderate

office noise. (Id. at 313-14.)

The ALJ concluded that although plaintiff’s medically

determinable impairments could reasonably be expected to cause

the alleged symptoms, the plaintiff’s testimony 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 314.) The ALJ compared

plaintiff’s testimony to evidence of the plaintiff’s normal

gait, the responsiveness of his sleep apnea to treatment,

medical records showing plaintiff’s mental symptoms were

relatively benign, and plaintiff’s ability to maintain work

activity in a skilled position for two years, in 2015 and 2016,

“despite his ongoing symptoms and struggles.” (Id. at 314-17.)

The ALJ concluded plaintiff was unable to perform any past

relevant work as an assembler in metal buildings, which

consisted of skilled work while plaintiff’s RFC only allows for

unskilled work. (Id. at 318.)

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

age, education, work experience, and residual function capacity,

there are jobs that exist in significant numbers in the national

economy that plaintiff can perform (20 C.F.R. 404.1569,

4014.1569(a), 416.969, and 416.969(a)). (Id.) The vocational

expert testified that plaintiff would be able to perform the

requirements of representative occupations such as laundry

laborer, box maker, and change house attendant night cleaner.

(Id. at 319.) 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 May 1, 2012, through the date of the

hearing. (Id.)

II. Treating Physicians’ Opinions

Plaintiff challenges the ALJ’s RFC determination based

on the weight the ALJ assigned to the treating medical sources’

opinions. (Pl. Mem. at 12-18.) The ALJ gave “significant

weight” to the opinions of the State Agency psychiatric

consultants, “some weight” to the opinions of the internist

consultative examiners, Drs. Govindaraj and Ducena, “little

weight” to plaintiff’s treating psychiatrist, Dr. Kharitanova,

and “little weight” to the assessment of plaintiff’s treating

physician, Dr. Flynn. (Tr. at 317-18.) Plaintiff contends that

the ALJ did not give appropriate weight to his treating

physicians, and if she had, she would have determined plaintiff

was unable to meet the demands of skilled or unskilled work.

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).2 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 not be given controlling weight where

[it is] contradicted by other substantial evidence in the

2 Because plaintiff’s initial application for disability and disability

insurance benefits, which are the subject of this action, 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. Although plaintiff

filed his second disability application on April 24, 2017, after the changes

to the rule went into effect, his second claim was consolidated with the

initial claim and evaluated based on an alleged disability date of May 1,

2012. Thus, the Court finds that the treating physician analysis should be

applied to the consolidated claim.

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. App’x. 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 at 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).

B. Dr. Mary Irene Flynn, Orthopedic Treating Physician

In assessing the extent of plaintiff’s physical

disabilities due to his knee injury, the ALJ assigned “little

weight” to the assessment submitted by Dr. Flynn, plaintiff’s

treating physician, which found that plaintiff could lift no

more than 20 pounds occasionally and no more than 10 pounds

frequently. (Tr. at 317, 904.) Dr. Flynn also found plaintiff

had reduced range of motion and that trace swelling existed in

plaintiff’s knee. (Id.) The ALJ acknowledged that Dr. Flynn

was a treating physician, but noted that plaintiff only saw Dr.

Flynn once, in August 2017, and that plaintiff did not pursue

any treatment thereafter. (Id. at 315.) The ALJ also reasoned

Dr. Flynn’s opinion was “inconsistent with the rather minimal

treatment for the left knee since 2003, and the rather minimal

clinical deficits found in the record,” as established in two

other medical opinions noted below. (Id. at 317-318.)

The ALJ instead chose to assign “some weight” to the

opinion of Dr. Govindaraj issued on July 1, 2013 (Ex. 3F) and

the opinion of Dr. Ducena issued on August 20, 2017 (Ex. 19F),

both of whom found that plaintiff had no significant physical

restrictions. (Tr. at 317.) Based on one examination with the

plaintiff on August 20, 2017, Dr. Ducena opined that plaintiff

has “no limitation to sitting, standing, walking, lying down,

hearing or speaking,” and had “no weight restriction,” partly

because plaintiff “did not use any devices to assist with

ambulation . . . was able to move around freely . . . [and] did

not appear to be in any apparent distress.” (Tr. at 886-87.)

The ALJ therefore concluded there was “no evidence of

instability or . . . [marked or disabling] deficit in the left

knee,” and therefore did not impose weight restrictions in its

determination of plaintiff’s RFC. (Id. at 316.) Though the

ALJ admitted the limited restrictions found in the two non-

treating opinions was “inconsistent with the history of injury

to the left knee,” the ALJ determined that plaintiff suffered

from no marked or disabling limitations consistent with “the

largely normal clinical findings documented by both examiners,

and by the rather minimal treatment for the knee since the

injury in 2003.” (Tr. at 317.)

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. Jun. 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

treatment 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)).

Moreover, when a plaintiff pursues a conservative

course of treatment, the ALJ may not “impose their [own] notion

that the severity of a physical impairment directly correlates

with the intrusiveness of the medical treatment ordered.” Shaw

v. Carter, 221 F.3d 126, 134-35 (2d Cir. 2000) (holding district

court improperly characterized plaintiff’s choice to pursue

physical therapy, instead of surgery, as substantial evidence

plaintiff was not disabled). A minimal course of treatment “is

not the overwhelmingly compelling type of critique that would

permit the Commissioner to overcome an otherwise valid medical

opinion.” Id. at 135. “[A] circumstantial critique by non-

physicians, however thorough or responsible, must be

overwhelmingly compelling in order to overcome a medical

opinion.” Wagner v. Secretary of Health and Human Servs., 906

F.2d 856, 862 (2d Cir. 1990). The court notes that a

plaintiff’s limited course of treatment is not irrelevant in

making an RFC determination. See Navan v. Astrue, 303 F. App’x

18, 20 (2d Cir. 2008) (summary order) (finding claims of total

disability were undermined by failure to seek regular treatment

for allegedly disabling condition). But the question presented

here is whether the limited course of treatment sufficiently

justifies assigning little weight to a treating physician’s

opinion.

The ALJ committed legal error by affording too little

weight to Dr. Flynn’s treating opinion for two reasons, which,

taken together, justify a remand. First, the ALJ incorrectly

“imposed their own notion” and medical judgment, over that of

the treating physician, by finding that the severity of

plaintiff’s physical impairment correlated with the minimal

course of treatment plaintiff pursued. See Shaw, 221 F.3d at

134-35. The ALJ expressly noted Dr. Flynn’s opinion was

inconsistent with plaintiff’s “rather minimal treatment for the

left knee since 2003.” (Tr. at 317-18.) The ALJ accordingly

put substantial weight on the fact that plaintiff “was not a

good candidate for surgery,” and that “the record show[ed] no

significant treatment or follow-up for years.” (Tr. at 315.)

The ALJ also noted plaintiff received no treatment after Dr.

Flynn prescribed plaintiff physical therapy in 2017. (Id.)

But the ALJ did not acknowledge that “the severity of

a physical impairment” does not necessarily directly correlate

with the “intrusiveness of the medical treatment ordered.”

Shaw, 221 F.3d at 134-35. Plaintiff, for one, had good reason

to not pursue knee surgery, as his doctor had advised him it

would cause “six to eight months of painful rehabilitation and

it would be unclear how much it would actually help

[plaintiff’s] situation.” (Tr. at 352.) Plaintiff also noted

that he “tried physical therapy but it didn’t really do

anything.” (Id.) It is also notable that plaintiff’s days

while unemployed typically consist of “read[ing], watch[ing]

TV,” and if he feels up to it “help[ing] out [his] wife with

things that [he] can.” (Id. at 346.) It is thus unsurprising

that plaintiff would have opted against a painful surgery or

physical therapy regimen, given the lack of physical burdens in

his day-to-day routine and the limited outlook for success.

Therefore, the ALJ committed legal error by inferring

Plaintiff’s choice to forego treatment served as substantial

evidence that Plaintiff was not physically impaired, in direct

contrast with Second Circuit precedent. See Shaw, 221 F.3d at

134-35. The ALJ’s limited commentary on plaintiff’s lack of

intrusive treatment is not the type of “overwhelmingly

compelling” critique to justify her refusal to assign

significant weight to the treating physician’s opinion. Wagner,

906 F.2d at 862.

In light of the improper weight afforded to

plaintiff’s minimal treatment plan, the ALJ did not sufficiently

reconcile the materially divergent opinions of Dr. Flynn with

that of Dr. Govindaraj, or that of Dr. Ducena, to justify so

heavily discounting the opinion of the treating physician. See

Kennedy, 343 F. App’x at 721. As to Dr. Giovindaraj, who found

that plaintiff had a “normal gait,” (Tr. at 315.), the ALJ did

not account for the extent to which plaintiff’s knee condition

could have worsened between June 2013 and August 2017. The

failure is notable because in August 2017, plaintiff stated his

knee pain had “resurfaced and increased in intensity” over the

past year, such that “now he cannot put pressure on the knee or

stand for a long period of time.” (Tr. at 867.) Plaintiff also

noted his continued knee pain and discomfort from walking or

standing for extended periods of time at his Oral Hearing in May

2019. (Tr. at 353-54.) Although the medical record may provide

reasons for favoring Dr. Giovindaraj’s opinion -- especially for

the period prior to 2017 -- the ALJ must provide good reasons

for doing so, with reference to specific elements of the medical

record. As noted above, plaintiff’s lack of intrusive treatment

since the injury is not a sufficient reason to reconcile the

discrepancy. Thus, the ALJ should provide good reasons why a

one-time medical opinion from 2013 was afforded more weight than

a treating physician’s opinion from 2017 –- even for making a

disability determination which includes a period after 2017 --

despite the fact that the knee injury appears to have worsened

between the two visits.

As to Dr. Ducena’s opinion, the ALJ failed to

reconcile the opinion with Dr. Flynn’s, and inconsistently

applied the ALJ’s own reasoning in prioritizing the opinion over

that of Dr. Flynn. While acknowledging Dr. Flynn was a treating

physician, the ALJ specifically noted that Dr. Flynn “saw the

claimant only once.” (Tr. at 317.) To be sure, one of the

factors in determining whether to assign controlling to a

treating physician includes “the frequency of examination and

the length, nature, and extent of the treatment relationship.”

Burgess, 537 F.3d at 128. Dr. Flynn’s opinion may accordingly

be afforded less weight than would be the case if plaintiff had

visited the doctor on multiple occasions. But the record

indicates plaintiff only visited with Dr. Ducena once as well,

in the same month in which plaintiff visited Dr. Flynn.

Meanwhile, Dr. Ducena and Dr. Flynn reached opposite opinions as

to the extent of plaintiff’s knee injury. Dr. Flynn found

plaintiff can only occasionally carry more than 20 pounds, and

can frequently only carry 10 pounds. (Tr. at 851.) In

contrast, Dr. Ducena stated plaintiff had “no weight

restriction.” (Tr. at 887.) Such materially divergent opinions

could prove dispositive as to whether plaintiff’s is considered

disabled under the Act by directly influencing plaintiff’s RFC

determination. See 20 C.F.R., Part 404, Subpart P, Appendix 2,

Rule 202.06; (See Pl. Mem. At 16.)

But the ALJ did not meaningfully reconcile the

discrepancies between the opinions of Drs. Flynn and Ducena, or

adequately develop the record by ordering additional examination

or asking for clarification from either doctor. Notably, the

ALJ denied plaintiff’s request for another examination to

reconcile the differences between the opinions. (Tr. at 317

n.1.) The ALJ must, however, provide better reasons for the

scant weight accorded to Dr. Flynn’s opinion, with reference to

specific elements of the medical record. This could include, as

plaintiff requested, the ALJ ordering another medical

examination to investigate the discrepancies between Dr. Flynn’s

opinion and Dr. Ducena’s opinion, or a request for clarification

from the doctors. See Lazo-Espinoza v. Astrue, 10-cv-2089

(DLI), 2012 WL 1031417, at 13 (E.D.N.Y. Mar. 27, 2012) (“[T]he

ALJ bears an affirmative duty to seek out more information from

the treating physician and to develop the administrative record

accordingly.”). As noted above, plaintiff’s lack of intrusive

treatment alone is not a good reason to de-emphasize the opinion

of a treating physician.

“An ALJ’s failure to reconcile . . . materially

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

remand.” Cabassa, 2012 WL 2202951, at 7. “Where an ALJ fails

properly . . . to provide ‘good reasons’ for the weight given

to the treating physician’s opinion, we do not hesitate to

remand.” See Kennedy, 343 F. App’x at 721 (summary order)

(citations omitted). Here, the ALJ incorrectly relied solely on

plaintiff’s minimal course of treatment when assigning less

weight to Dr. Flynn’s treating opinion than to the opinions of

Dr. Ducena and Dr. Giovindaraj. The failure is especially

notable as the ALJ herself acknowledged that the opinions of Dr.

Ducena and Dr. Giovindaraj were “inconsistent” with the medical

record as a whole. (Tr. at 317.) On remand, the ALJ must

reevaluate the weight assigned to Dr. Flynn’s opinion, or to

provide good reasons as to why Dr. Flynn’s treating opinion

should be essentially rejected.

C. Dr. Anne Kharitanova, Treating Psychiatrist

In assessing the extent of plaintiff’s mental

disabilities, the ALJ assigned “little weight” to the assessment

submitted by Dr. Kharitanova, plaintiff’s treating psychiatrist,

who found that plaintiff has marked and extreme limitations

across numerous areas of mental functioning. (Tr. at 317, 287.)

The ALJ reasoned that Dr. Kharitanova’s assessment was

“inconsistent with her own GAF [Global Assessment of

Functioning] scores,” which fell within the moderate range.

(Tr. at 317.) The ALJ also noted Dr. Kharitanova’s series of

findings from 2014 to 2019, which “recorded some consistent

clinical deficits, including reduced attention and

concentration, constricted affect, and a sad and/or anxious

mood,” were inconsistent with her other findings of a “normal .

. . cooperative attitude, normal speech, coherent thought

processes, no hallucinations or suicidal/homicidal ideation, and

fair insight and judgment.” (Id.) The ALJ also cited

plaintiff’s work in 2015 and 2016 as inconsistent with Dr.

Kharitanova’s findings. (Id.) The ALJ, moreover, only briefly

discussed Dr. Kharitanova’s more recent findings, after the 2014

assessment, which found plaintiff’s concentration, cognitive

attention, and recent memory were abnormal. (See, e.g., Tr. at

916.) The ALJ acknowledged those opinions but discounted their

weight due to Dr. Kharitanova’s other more benign findings.

(Tr. at 317.)

The ALJ instead afforded “significant weight” to the

opinions of the State Agency psychiatric consultants, both of

whom found that plaintiff had no more than moderate mental

limitations. (Id.) The ALJ reasoned the opinions were

consistent with the findings documented by the psychiatric

consultative examiner, Dr. Lefkowitz, who found in June 2013

that plaintiff’s prognosis was “fair with adequate treatment,”

even though plaintiff told Dr. Lefkowitz that he stopped work

because “he cannot be around people or concentrate.” (Id. at

257-58.) The ALJ also noted the consultative examinations were

consistent with plaintiff’s return to work as a skylight

installer in 2015 and 2016. (Id.) The ALJ concluded that

plaintiff was not disabled within the meaning of the Act because

the state psychiatric opinions, and the record, supported a

finding that plaintiff suffered from only moderate mental

limitations.

The ALJ committed legal error by failing to consider

the Burgess factors such as the length, frequency, nature or

extent of Dr. Kharitanova’s relationship with the plaintiff, and

by failing to provide a persuasive rationale for the little

weight given to the opinions Dr. Kharitanova provided from 2014

through 2019. See Burgess, 537 F.3d at 128. Most notably, the

ALJ’s need to take into account the length of the treatment

relationship and frequency of the examinations, “is of

heightened importance” where the claimed impairments include:

“depression . . . panic disorder, and generalized anxiety

disorder,” as is the case here. Avate v. Comm’r, 18-cv-2040

(JS), 2020 WL 2113322, at 4 (E.D.N.Y. May 4, 2020) (internal

citations omitted); see Syska v. Saul, 19-cv-7212 (KAM), 2021 WL

2190986, at 6 (E.D.N.Y. May 31, 2021).

Here, plaintiff started visiting Dr. Kharitanova in

August 2014, and saw her on several occasions during 2014. (Tr.

at 315.) Plaintiff then visited Dr. Kharitanova in January

2015, before taking a break from treatment until March 2016.

(Id. at 316.) The record then demonstrates that plaintiff

visited Dr. Kharitanova on several occasions in 2016, 2017,

2018, and 2019. (Id. at 316.) Indeed, the ALJ acknowledged in

her decision that plaintiff “sees his psychiatrist once per

month.” (Id. at 314.) Plaintiff’s consistent and long-tenured

relationship with Dr. Kharitanova with respect to his mental

impairments required the ALJ to give Dr. Kharitanova’s opinions

“heightened importance,” because this case involves depression,

anxiety, and trauma. See Avate, 2020 WL 2113322, at 4.

Moreover, “[i]t is well established that the ALJ should not rely

on a consultive examiner’s opinions after a single examination

over a treating physician”. Syska, 2021 WL 2190986, at 6

(citing Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)). Dr.

Kharitanova has considerably more insight into plaintiff’s

symptoms and related limitations from her years-long treating

relationship than Dr. Lefkowitz, or the other state consultative

examiners, do from a one-time examination of plaintiff.

Accordingly, there is a presumption that Dr. Kharitanova’s

opinions should be accorded more weight than that of the

consultive psychiatric examiners.

Rather than conduct a thorough investigation into Dr.

Kharitanova’s detailed findings over a five-year period,

however, the ALJ primarily referred to Dr. Kharitanova’s

response to a 2014 questionnaire. (Tr. at 317.) The ALJ then

offered conclusory statements that Dr. Kharitanova’s more recent

findings from 2014 through 2019 were internally ambiguous and

were inconsistent with the medical record and plaintiff’s work

history. (Id.) The ALJ ascribed Dr. Kharitanova’s findings

little weight, without thoroughly discussing the implications of

Dr. Kharitanova’s more recent findings. (Id.)

The Burgess factors, however -- most notably the

length and frequency of the relationship -- point strongly

towards the ALJ providing a higher level of weight and

examination to Dr. Kharitanova’s findings. Therefore, the ALJ

committed error by failing thoroughly to examine the many pages

of findings Dr. Kharitanova provided between 2014 and 2019.

Although the ALJ described two inconsistencies to justify

reducing the weight Dr. Kharitanova’s findings relative to those

of the consultative examiners, the court does not find that

substantial evidence justifies ascribing Dr. Kharitanova’s

findings so little weight.

First, the ALJ discounted Dr. Kharitanova’s

qualitative findings partly because they conflicted with the

relatively moderate Global Assessment of Functioning (“GAF”)

score Dr. Kharitanova assigned to plaintiff in 2014. (Tr. at

317.) But as the Second Circuit has observed, several district

courts in this circuit have “questioned” the proposition that “a

GAF [score] generally provides a reliable basis for disability

determinations.” Rock v. Colvin, 628 F. App’x 1, 4 n.3 (2d Cir.

2015) (collecting cases). One such court noted, following the

removal of the GAF scale from the Diagnostic and Statistical

Manual of Mental Disorders, that the SSA issued a bulletin on

July 31, 2013 observing that “there is no way to standardize

measurement and evaluation” in generating GAF scores, and “the

GAF score is not designed to predict outcomes, and the scores

are so general that they are not useful without additional

supporting description and detail.” Mainella v. Colvin, No. 13-

CV-2453, 2014 WL 183957, at 5 (E.D.N.Y. Jan. 14, 2014). In

light of these problems, the SSA has “instruct[ed] ALJs to treat

GAF scores as opinion evidence; the details of the clinician’s

description, rather than a numerical range, should be used.”

Id. (citation omitted). Thus, GAF scores have limited

evidentiary value, and alone do not serve as substantial

evidence to reduce the weight ascribed to the treating

psychiatrist’s findings.

The moderate GAF score and assessment cited by the

ALJ, moreover, was completed in 2014, and therefore does not

incorporate Dr. Kharitanova’s treating opinion given the benefit

of five additional years of treatment. (Tr. at 295.) As noted

above, however, the ALJ has an “affirmative duty to seek out

more information from the treating physician and to develop the

administrative record accordingly.” See Lazo-Espinoza, 2012 WL

1031417, at 13. The ALJ could have requested Dr. Kharitanova to

complete another questionnaire, or provide an updated GAF score,

based on years of additional treatment, but failed to do so.

The failure is especially noteworthy as the Commissioner’s

regulations note that the “level of [mental] functioning may

vary considerably over time,” and accordingly “it is vital to

obtain evidence from relevant sources over a sufficiently long

period.” See 20 C.F.R. Part 404, Subpart P, Appendix 1, §

12.00D2. Accordingly, the court is not persuaded that a GAF

score and assessment from 2014, which may or may not align with

Dr. Kharitanova’s more recent qualitative findings, provide

substantial evidence to essentially reject Dr. Kharitanova’s

informed treating opinion. The ALJ must seek out and evaluate

more recent information from Dr. Kharitanova if the ALJ intends

to rely on the 2014 GAF score in her assessment.

The ALJ also relies on plaintiff’s return to work from

2015 to 2016 as evidence that his mental impairments are only

moderate. To be sure, plaintiff’s activities during the alleged

disability period are not irrelevant in the determination of the

severity of a mental impairment. See Cichocki v. Astrue, 729

F.3d 172, 178 (2d Cir. 2013) (finding that ALJ properly relied

on claimant’s reported daily activities in concluding that the

claimant could perform some work). Though it is possible that

plaintiff’s work history may provide evidence to support a

finding that plaintiff was not disabled in 2015 and 2016, the

ALJ’s reasoning does not clearly support that plaintiff was not

disabled during any other period. Notably, the ALJ ostensibly

did not ascribe any weight to the fact that plaintiff lost the

job in question in 2016 after an on-the-job accident that

plaintiff acknowledges “was . . . my fault because I hadn’t done

something correctly and I can’t focus on things.” (Tr. at 345.)

Specifically, plaintiff “forgot[] to install some fasteners”

which caused a “skylight [to] partially collapse[]” and nearly

seriously injure two people. (Id. at 782.) Plaintiff also

stated that he could not stay in the job because “mentally it

was having too much of a toll,” that he “couldn’t function,” and

he only attempted the job due to financial desperation after his

initial disability appeal was denied. (Id. at 345.) The ALJ,

however, did not discuss this evidence, but rather prioritized

the mere fact of plaintiff’s work history over the opinion of

the treating psychiatrist.

This court acknowledges that the Commissioner is

ordinarily afforded substantial deference in reviewing whether

there is substantial evidence to support its decision, and it is

not the duty of the court to weigh the evidence in the record.

See McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (noting

“[i]f the evidence is susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld”).

Here, however, the evidence -– which suggests plaintiff’s mental

impairments may have forced him to stop working -- required the

ALJ to more thoroughly discuss why she largely ignored the

findings of the treating psychiatrist from 2014 through 2019,

while prioritizing work history evidence from 2015 and 2016 that

is plainly susceptible to competing interpretations. The court

again emphasizes that the Commissioner’s regulations state that

the “level of [mental] functioning may vary considerably over

time,” and suggest the ALJ should examine longitudinal evidence

from relevant sources. 20 C.F.R. Part 404, Subpart P, Appendix

1, § 12.00D2. The ALJ, accordingly, must consider other

evidence and thoroughly explain, among other things, whether

plaintiff’s work history from 2015 and 2016 serves as evidence

of plaintiff’s lack of mental disability in the years since

plaintiff stopped working in 2016. On remand, the ALJ must

provide a more thorough explanation as to why ambiguous work

history evidence should take priority over a treating

psychiatrist’s findings from a five-year course of consistent

treatment.

Finally, the ALJ’s limited review of Dr. Kharitanova’s

medical findings since 2014 provides little confidence that the

ALJ thoroughly examined the entirety of Dr. Kharitanova’s

records when choosing to afford them little weight. The ALJ

merely implied Dr. Kharitanova’s recent findings were internally

ambiguous, by briefly describing its mixture of positive

findings and negative findings. (Tr. at 317.) On remand, the

ALJ should more thoroughly and clearly explain Dr. Kharitanova’s

findings, and discuss why, taken as a whole, the purported

ambiguities preclude ascribing them substantial weight in the

disability determination. Moreover, if necessary, the ALJ has

“an affirmative duty to seek out more information” from Dr.

Kharitanova to better address any purported ambiguities in her

findings. See Lazo-Espinoza, 2012 WL 1031417, at 13. The ALJ

should consider the Burgess factors, such as the length,

frequency, nature or extent of plaintiff’s relationship with

this mental health professional. See Burgess v. Astrue, 537

F.3d 117, 128 (2d Cir. 2008); Rasin v. Comm'r of Soc. Sec., No.

18CV06605KAMLB, 2020 WL 3960516, at 14 (E.D.N.Y. July 13, 2020).

When the ALJ considers the length of the treatment relationship

and frequency of the examination, she should also take into

account the “evidence supporting its satisfaction” where the

claimed impairments include: “depression, bipolar disorder,

panic disorder, and generalized anxiety disorder,” as appears to

be the case here. Abate v. Comm'r of Soc. Sec., No. 18-CV-2040

(JS), 2020 WL 2113322, at *1 (E.D.N.Y. May 4, 2020)

The court does not affirmatively hold that Dr.

Kharitanova’s existing findings require a finding of disability,

but, rather, that the ALJ has an affirmative duty to more

thoroughly develop the record regarding plaintiff’s mental

impairments, and, presumably, apply additional weight to Dr.

Kharitanova’s treatment or explain why she does not.

Because the evidence that purportedly contradicted Dr.

Kharitanova’s opinions was neither substantial, nor properly

characterized, and because “the ALJ should not rely on a

consultive examiner’s opinions after a single examination over a

treating physician,” Dr. Kharitanova’s opinion should have been

accorded more weight. See Syska, 2021 WL 2190986, at 6 (citing

Cruz, 912 F.2d at 13). The ALJ, moreover, must fulfill her

affirmative duty to thoroughly examine and discuss Dr.

Kharitanova’s opinions in the intervening period since the

initial assessment was completed in 2014. On remand, the ALJ is

directed to explain in detail the factors required by the Second

Circuit in Burgess, more thoroughly examine and develop Dr.

Kharitanova’s findings to date, and accord substantial weight to

Dr. Kharitanova’s opinions unless the ALJ identifies and

explains any additional inconsistent evidence that warrants the

ALJ’s departure from the treating physician rule.

CONCLUSION

The Commissioner’s finding that plaintiff is not

disabled as defined by the SSA is not supported by substantial

evidence in the record because the ALJ failed to properly weigh

the opinions of the treating physicians, Dr. Flynn and Dr.

Kharitanova. The court therefore 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 the Court is respectfully directed to close this case

and enter judgment in favor of plaintiff.

.

SO ORDERED

DATED: July 12, 2021

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge