# Muldoon v. Commissioner of Social Security

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

URL: https://www.frixlaw.com/law-library/cases/10306488

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 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/10306488

## How later opinions describe it (automated extraction)

- holding district court improperly characterized plaintiff’s choice to pursue physical therapy, instead of surgery, as substantial evidence plaintiff was not disabled
- noting “[i]f the evidence is susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld”
- finding that ALJ properly relied on claimant’s reported daily activities in concluding that the claimant could perform some work

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
SCOTT MULDOON, MEMORANDUM & ORDER
Plaintiff, 19-cv-07236 (KAM)
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306488. Public record. Not legal advice.