Colon v. Saul, Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARMEN COLON,

MEMORANDUM AND ORDER

Plaintiff, 20-cv-2113(KAM)

v.

ANDREW SAUL, COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

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

appeals the final decision of the defendant Commissioner of

Social Security (the “Commissioner”), which found that plaintiff

was not eligible for disability insurance benefits under Title

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

plaintiff is not disabled within the meaning of the Act.

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

entitled to receive the aforementioned benefits.

Presently before the court are plaintiff’s motion for

judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c) (ECF No. 11, “Pl. Mot.”), defendant’s cross-

motion for judgment on the pleadings (ECF. No. 12, “Def. Cross-

Mot.”), and plaintiff’s reply to defendant’s cross-motion (ECF.

No. 13, “Pl. Reply”). For the reasons stated herein,

plaintiff’s motion is GRANTED, defendant’s cross-motion is

DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

The parties have submitted a joint stipulation of

relevant facts, and the court hereby incorporates it by

reference. (See ECF No. 14, Joint Stipulation of Facts (“Joint

Stip.”).) Having reviewed the joint stipulation of facts, the

ALJ’s decision, and the administrative record, the court notes

the following:

On November 30, 2016, plaintiff Carmen Colon filed an

application for disability insurance benefits (“DIB”) due to

neck injury, back injury, bilateral carpal tunnel syndrome,

right hip pain, asthma, bilateral leg numbness, and depression.

(ECF No. 15, Administrative Transcript (“Tr.”) 15, 170-173,

189.) The alleged onset of plaintiff’s disability was November

5, 2015. (Id. at 15.) Plaintiff claims she was disabled after

sustaining a work-related injury which affected her neck, lower

back, and right knee while delivering a stove on February 27,

2014. (Joint Stip. at 2.)

On March 30, 2017, the Social Security Administration

(“SSA”) denied plaintiff’s request for DIB, concluding that

plaintiff’s condition, although resulting in some limitations,

was not severe enough to keep her from working. (Id. at 88,

100-101.) On April 12, 2017, plaintiff filed a request for a

hearing before an Administrative Law Judge (“ALJ”), which was

held before ALJ Michelle I. Allen on December 12, 2018 in

Jamaica, New York. (Id. at 15, 55-87.) David A. Festa, a

vocational expert, also provided testimony during plaintiff’s

hearing. (Id.) In a written decision dated January 16, 2019,

the ALJ found plaintiff was not disabled as defined under the

Act. (Id. at 15-31.) On March 15, 2019, plaintiff sought

review of the ALJ’s decision with the Appeals Council, which was

denied on April 15, 2020, thereby making the ALJ’s decision the

final decision of the Commissioner. (Id. at 1-6, 166-169.) On

May 8, 2020, plaintiff filed the instant action in federal court

appealing the Commissioner’s final decision. (See ECF No. 1,

Complaint.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

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

decision or within such further time as the Commissioner of

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

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

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

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal

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

2008). “Substantial evidence is more than a mere scintilla,”

and must be relevant evidence that a “reasonable mind might

accept as adequate to support a conclusion.” Halloran v.

Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v.

Perales, 420 U.S. 389, 401 (1971)) (internal quotation marks

omitted). If there is substantial evidence in the record to

support the Commissioner’s factual findings, those findings must

be upheld. 42 U.S.C. § 405(g). Inquiry into legal error

“requires the court to ask whether ‘the claimant has had a full

hearing under the [Commissioner’s] regulations and in accordance

with the beneficent purposes of the [Social Security]

Act.’” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The

reviewing court does not have the authority to conduct a de novo

review and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.

2012).

To receive disability benefits, claimants must be

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

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

unable to “engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

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

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

process is essentially as follows:

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

claimant is not working, (2) that he has a

‘severe impairment,’ (3) that the impairment

is not one [listed in Appendix 1 of the

regulations] that conclusively requires a

determination of disability, and (4) that the

claimant is not capable of continuing in his

prior type of work, the Commissioner must find

him disabled if (5) there is not another type

of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment

. . . would be of sufficient severity to establish eligibility

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

if the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

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

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

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

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

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

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s 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. If the record before the

court provides “persuasive proof of disability and a remand for

further evidentiary proceedings would serve no purpose,”

however, 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

Applying the five-step sequential analysis, the ALJ

determined at step one that plaintiff had not engaged in

substantial gainful activity since the alleged onset data of

November 5, 2015. (Tr. at 17.) At step two, the ALJ determined

that plaintiff suffered from the severe impairments of herniated

discs of the cervical spine, lumbar radiculopathy, bilateral

carpal tunnel syndrome, right hip osteoarthritis, asthma,

depression, and substance abuse disorder in remission.

(Id.)

At step three, the ALJ determined that plaintiff does

not have an impairment or combination of impairments that meets

or medically equals the severity of one of the listed

impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 (20 C.F.R.

§ 404.1520(d), § 404.1525, and § 404.1526), including major

dysfunction of a joint characterized by gross anatomical

deformity under Listing 1.02, disorders of the spine under

Listing 1.04, and depressive, bipolar, and related disorders

under 12.04. (Id. at 18.)

At step four, the ALJ determined that plaintiff had

the residual functional capacity (“RFC”) to perform “sedentary

work” as defined in 20 C.F.R. § 404.1567(a). (Id. at 19.) The

ALJ found that plaintiff can frequently reach overhead and in

all other directions with both upper extremities; she can handle

and finger items frequently with both hands and can climb ramps

and stairs occasionally. (Id.) Further, the ALJ found that

plaintiff can never climb ladders, ropes, or scaffolds; she can

balance frequently with a cane, and stoop and crouch

occasionally. (Id.) The ALJ found that plaintiff can never

kneel or crawl, can never work at unprotected heights, near

moving mechanical parts, and can never operate a motor vehicle.

(Id.) Finally, the ALJ found plaintiff can never work in

humidity, wetness, dust, odors, fumes and pulmonary irritants,

extreme cold, or extreme heat, but is able to perform simple,

routine tasks and is able to frequently interact with

supervisors, coworkers, and the public while being absent from

work one day a month. (Id.)

In making the RFC determination, the ALJ gave “little

weight” to the opinion of plaintiff’s daughter, “as she is not

an acceptable medical source.” (Id. at 25.) The ALJ also gave

“little weight” to Dr. Demetrios Mikelis’s and other treating

sources’ progress notes that plaintiff was to refrain from any

activity that exacerbates symptoms such as lifting, carrying,

bending, twisting. (Id.) The ALJ explained that these opinions

were given “little weight” because they were “based on

subjective symptoms and not objective findings.” (Id.)

The ALJ gave “some weight” to consultative examiner

Dr. Iqbal Teli’s opinion. (Id. at 26.) The ALJ explained that

Dr. Teli’s opinion was given “some weight” because of his status

as an acceptable examining medical source with knowledge of the

Social Security disability program but not “greater weight”

because Dr. Teli’s opinion does not provide exertional

limitations, which are consistent with the record, and there

were few findings regarding the hands or neck after surgery, so

limitations applicable to the cervical spine were not consistent

with the record. (Id.) The ALJ also gave “some weight” to the

opinion of psychiatric consultative examiner Dr. Clementina

Porcelli, Ph.D. (Id. at 27.) The ALJ explained that Dr.

Porcelli’s opinion was given “some weight” because of her status

as an acceptable examining medical source with knowledge of the

Social Security disability program but not “greater weight”

because the opinion is internally inconsistent, as the medical

source statement only indicates mild limitations, but Dr.

Porcelli stated that the claimant’s psychiatric problems may

significantly interfere with her ability to function on a daily

basis. (Id.)

The ALJ gave “great but not controlling weight” to the

opinion of Dr. Barry M. Katzman. (Id.) The ALJ noted Dr.

Katzman’s long treatment history of plaintiff but concluded his

opinion was not consistent with the record, which revealed

plaintiff’s mild loss of range of motion, grossly normal

sensation, and ability to care for herself. (Id.) The ALJ also

gave Dr. Sebastian Latugga’s opinion “great but not controlling

weight.” (Id. at 28.) The ALJ noted Dr. Latugga’s long

treatment history of plaintiff but concluded his opinion was not

consistent with the record concerning occasional reaching as

there was “little treatment to the neck and no treatment to the

arms.” (Id.) With respect to Dr. Lattuga’s opinion the ALJ

also found that “the need for an assistive device to ambulate is

inconsistent with the claimant’s testimony that she does not

need the cane at home”, “the record indicates that the claimant

has a normal gait and strength in the lower extremities” because

she takes public transportation, can climb stairs, and on a

neurological exam on October 19, 2016 had “normal coordination”,

and Dr. Lattuga’s conclusion that plaintiff would be absent

three or more times a month was “speculative and not consistent

with the record.” (Id.) The ALJ also noted that Dr. Lattuga

stated plaintiff’s limitations began on February 27, 2014, which

preceded the alleged onset date. (Id.)

The ALJ gave “no weight” to the opinion of Dr. Gautman

Khakhar’s progress notes, which stated the plaintiff is totally

disabled or has a 100% disability percentage. (Id.) The ALJ

explained that this opinion was vague in that it did not provide

specific limitations and is on an issue reserved to the

Commissioner. (Id.)

The ALJ gave “little weight” to the opinions of

independent medical examiners Dr. Howard Levin and Dr. Eduardo

Alvarez, noting that they are insurance company medical

consultants who rely on state Worker’s Compensation rules on

disability, which differ from rules that are applicable in

Social Security disability cases. (Id. at 28-29.) The ALJ also

noted that opinions on disability are reserved to the

Commissioner. (Id at 29.) The ALJ concluded that plaintiff was

unable to perform any past relevant work (Id.)

Lastly, at step five, the ALJ determined that

plaintiff was capable of making a successful adjustment to other

work that exists in significant numbers in the national economy,

including as an addresser, surveillance system monitor, and

order clerk. (Id. at 30-31.) Thus, the ALJ concluded that per

20 CFR § 404.1520(g) plaintiff had not been under a disability

as defined in the Social Security Act from November 5, 2016

through the date of the decision. (Id.)

II. Analysis

On appeal, plaintiff asserts that the ALJ:

(1) committed legal error when evaluating Listing 1.04(A) at

step three and (2) improperly weighed medical evidence by

failing to follow the treating physician rule. (ECF No. 11, Pl.

Mot. at 1.) For the reasons discussed below, the court

concludes the ALJ failed to provide adequate analysis at step

three of the sequential analysis to support the ALJ’s finding

that plaintiff’s medical evidence did not meet or equal Listing

1.04(A) and also failed to explain why the plaintiff’s treating

physicians’ opinions were not accorded controlling weight.

Therefore, the court remands the case for further administrative

proceedings consistent with this Memorandum & Order. Because

the court remands this case for additional findings at step

three and the ALJ’s explanation of the weight given to the

treating physicians, the court declines to address plaintiff’s

remaining contentions on appeal.

A. The Listings Requirements

The ALJ determined that plaintiff did not have an

impairment or combination of impairments that met or medically

equaled the severity of Listing 1.04(A). (Tr. at 18.) “The

Social Security regulations list certain impairments,

any of which is sufficient, at step three, to create an

irrebuttable presumption of disability.” DeChirico v. Callahan,

134 F.3d 1177, 1180 (2d Cir. 1998) (citing 20 C.F.R. §§

404.1520(d), 416.920(d)). “The regulations also provide for a

finding of such a disability per se if an individual has an

impairment that is ‘equal to’ a listed impairment.” Id. (citing

20 C.F.R. § 404.1520(d) (“If you have an impairment(s) which ...

is listed in appendix 1 or is equal to a listed impairment(s),

we will find you disabled without considering your age,

education, and work experience.” (internal quotation marks

omitted))); see also 20 C.F.R. § 416.920(d).

At step three the claimant bears the “general burden

of proving . . . disability.” Burgess, 537 F.3d at 128; see

Sullivan v. Zebley, 493 U.S. 521, 531 (1990); Johnson v. Colvin,

No. 13-cv-1055 (JTC), 2014 WL 6883606, at *5 (W.D.N.Y. Dec. 4,

2014); Naegele v. Barnhart, 433 F. Supp. 2d 319, 324 (W.D.N.Y.

2006) (“It must be remembered that plaintiff has the burden of

proof at step 3 that she meets the Listing requirements.”).

Nevertheless, courts have required an ALJ to provide

an explanation as to why the claimant failed to meet or equal

the Listings “[w]here the claimant's symptoms as described by

the medical evidence appear to match those described in the

Listings.” Rockwood v. Astrue, 614 F. Supp. 2d 252, 273

(N.D.N.Y. 2009) (quoting Kuleszo v. Barnhart, 232 F.Supp.2d 44,

52 (W.D.N.Y. 2002)). “While the ALJ may ultimately find that [a

considered listing] do[es] not apply to Plaintiff, [s/he] must

still provide some analysis of Plaintiff’s symptoms and medical

evidence in the context of the Listing criteria.” Critoph v.

Berryhill, No. 16-cv-00417 (MAT), 2017 WL 4324688, at *3

(W.D.N.Y. Sept. 28, 2017) (quoting Peach v. Colvin, No. 15-cv-

104S, 2016 WL 2956230, at *4 (W.D.N.Y. May 23, 2016)). In other

words, the ALJ must “build an accurate and logical bridge from

the evidence to [his or her] conclusion to enable a meaningful

review.” Hamedallah ex rel. E.B. v. Astrue, 876 F. Supp. 2d

133, 142 (N.D.N.Y. 2012).

When an ALJ fails to provide an explanation where

plaintiff’s symptoms appear to meet a listing, to build a bridge

from the record evidence to the ALJ’s conclusion, or to analyze

plaintiff’s symptoms and evidence in context of a listing’s

requirements, remand may be warranted. See, e.g., Guevara v.

Comm’r of Soc. Sec., No. 19-cv-601S, 2020 WL 5628063, at *4

(W.D.N.Y. Sept. 21, 2020) (remanding where the “ALJ failed to

make or explain specific findings regarding Listing 1.04(A)”);

Torres v. Colvin, No. 14-cv-479S, 2015 WL 4604000, at *4

(W.D.N.Y. July 30, 2015) (remanding where “the record evidence

suggests that Plaintiff’s symptoms could meet the Listing

requirements in 1.04(A)” but the ALJ’s “only reference to it is

a recitation of the standard”); Cherico v. Colvin, No. 12-cv-

5734 (MHD), 2014 WL 3939036, at *28 (S.D.N.Y. Aug. 7, 2014)

(holding that an ALJ merely stating that he or she had

considered the requirements of a listing was “patently

inadequate to substitute for specific findings in view of the

fact that plaintiff has at least a colorable case for

application of listing 1.04(A)” and that where there is record

support for each of the necessary symptoms, the ALJ was required

to address that evidence, and his failure to specifically do so

was error that would justify a remand); Ortiz v. Saul, No. 19-

cv-2316 (KAM), 2020 WL 7699304, at *8 (E.D.N.Y. Dec. 28, 2020)

(remanding where “due to the absence of specific findings by the

ALJ” regarding Listing 1.04(A) “th[e] court [wa]s unable to

meaningfully review the ALJ’s determination at step three of the

sequential analysis”).

To meet Listing 1.04(A), disorders of the spine (e.g.,

herniated nucleus pulposus, spinal arachnoiditis, spinal

stenosis, osteoarthritis, degenerative disc disease, facet

arthritis, vertebral fracture) must result in compromise of a

nerve root (including the cauda equina) or the spinal cord with:

Evidence of nerve root compression

characterized by neuro-anatomic distribution

of pain, limitation of motion of the spine,

motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by

sensory or reflex loss and, if there is

involvement of the lower back, positive

straight-leg raising test (sitting and

supine).

20 C.F.R. Part 404, Subpart P, Appendix 1. Plaintiff alleges

that she meets Listing 1.04(A) based on disorders in the lumbar

and cervical spine. The lumbar disorder, involving the lower

back, requires plaintiff to meet all five criteria included in

the listing. See id. The cervical spine disorder, in this case

cervical herniated discs, is an upper back and neck injury not

requiring a positive straight leg raising test. Id. (“ . . . if

there is involvement of the lower back, positive straight-leg

raising test.”).

Here, plaintiff argues that her medical records

contain “persuasive proof” that she has satisfied all the

criteria necessary to meet Listing 1.04(A). (Pl. Mot. at 17.)

The ALJ acknowledged Plaintiff’s diagnosis of lumbar

radiculopathy and cervical herniated discs but determined the

technical requirements of the listing were not met. (Tr. at 18;

Pl. Mot. at 15; Def. Cross-Mot. at 4-5.) On appeal, plaintiff

identifies evidence indicating nerve compression, limitation of

motion, motor loss accompanied by sensory or reflex loss, and

positive straight leg raising tests. (See Pl. Mot. at 16-17

(citing to Tr. 344-345, 370, 398-399, 429, 497-498, 522, 535,

726).) Defendant responds that plaintiff fails to meet her

burden to show her impairments meet or equal the technical

requirements of Listing 1.04(A). (See Def. Cross-Mot. at 4-5.)

B. Plaintiff Provides Evidence to Support a Colorable

Finding of Disability under Listing 1.04(A)

Having reviewed the record and the ALJ’s decision, the

court finds that plaintiff carried her burden of providing

evidence to support a colorable finding of disability under

Listing 1.04(A). See Monsoori v. Comm'r of Soc. Sec., No. 17-

cv-01161 (MAT), 2019 WL 2361486, at *6 (W.D.N.Y. June 4, 2019)

(remanding case for clarification where “Plaintiff has made at

least a colorable case that he meets the requirements of Listing

1.04(A)”); Jan S. v. Comm'r of Soc. Sec., No. 19-cv-1674 (WBC),

2021 WL 1339455, at *5 (W.D.N.Y. Apr. 9, 2021) (same). Although

“it is not our function to determine de novo whether [plaintiff]

is disabled,” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)

(citing Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)), the

court concludes that there is sufficient evidence in the record

of a spinal disorder that may arguably meet the technical

requirements of Listing 1.04(A).

1. New York Spine Specialists LLP

After her work-related injury, plaintiff received

treatment at New York Spine Specialists from September 2014 to

September 2018. (Joint Stip. at 5; Tr. 309-54, 573-674.) On

April 9, 2015, Dr. Demetrios Mikelis, M.D., a doctor at New York

Spine Specialists, assessed plaintiff’s restricted ranges of

motion, decreased motor strength, and altered sensation in the

cervical and lumbar spine. (Tr. at 485.) Dr. Mikelis noted

that plaintiff returned to work full duty on December 8, 2014

and on February 9, 2015 was promoted to supervisor, which did

not require any heavy lifting. (Joint. Stip. at 5; Tr. at 669.)

Dr. Mikelis wrote that plaintiff had elected to proceed with

chiropractic care and physical therapy. (Tr. at 486.)

On April 21, 2015, plaintiff was seen by Dr. Andrew

Cordiale, D.O., another doctor at New York Spine Specialists.

(Tr. at 482-483.) Dr. Cordiale noted the same symptoms as Dr.

Mikelis and wrote that plaintiff was now considering a surgical

intervention, advising a new MRI of the lumbar spine to follow

up with a surgeon. (Id. at 483.)

On April 23, 2015, plaintiff was seen by orthopedic

surgeon Sebastian Lattuga, M.D. who diagnosed herniated cervical

intervertebral disc, cervical nerve root impingement, lumbar

sprain and strain, and lumbar radiculopathy. (See Tr. at 480;

Norman v. Astrue, 912 F. Supp. 2d 33, 78 (S.D.N.Y. 2012)

(cervical and lumbar radiculopathy is evidence of nerve root

compression). Dr. Lattuga advised plaintiff on surgical and

non-surgical options and noted that plaintiff wished to proceed

with surgery for an anterior cervical discectomy and fusion at

level C4/5 of the spine. (Id.)

On May 7, 2015, Dr. Lattuga performed a cervical hemi

vertebrectomy C5, cervical hemi vertebrectomy C6, anterior

cervical diskectomy C5/6, intervertebral implant, arthrodesis

C5/6, and anterior instrumentation C5/6. (Tr. at 474-477, 659-

662.) Following surgery, on May 22 and June 22, 2015, Dr.

Mikelis and Dr. Lattuga noted restricted range of motion as well

as motor strength and sensation consistent with pre-operation

symptoms (decreased). (Id. at 470, 472.) These symptoms were

unchanged on July 15, September 18, September 21, October 12,

November 4, and November 30, 2015. (Id. at 309-310, 311-312,

449-450, 456-457, 458-459, 462-463.) On November 30, 2015, Dr.

Mikelis also conducted diagnostic imaging which showed residual

and recurrent scar tissue, disc bulges, neuroforaminal

narrowing, and spinal stenosis. (Id at 312.) Thereafter, On

February 1, February 29, and April 4, 2016, Dr. Mikelis’

diagnosis and conclusions of restricted range of motion,

decreased motor strength, and decreased sensation also did not

change. (Id. at 313-318.) On May 18, 2016, Dr. Lattuga

diagnosed cervical radiculopathy and herniated nucleus pulposus

(“HNP”), as well as lumbar radiculopathy, HNP, instability, and

neurogenic claudication. (Id. at 320.)

Dr. Lattuga performed a second back surgery on June

21, 2016, including a posterolateral fusion L4/L5, segmental

pedicle fixation L4/L5, lumbar laminectomy L4/L5, facetectomy,

foraminotomy, discectomy, morselized bone graft, BMP implant,

and neurolysis L4/L5. (Tr. at 429-433.) Dr. Lattuga

postoperatively diagnosed severe neural compression and

instability in addition to confirmation of the preoperative

diagnosis. (Joint Stip. at 7; Tr. at 429, 614.) Following this

surgery, plaintiff’s diagnosis of both lumbar and cervical

radiculopathy as well as symptoms including decreased range of

motion, decreased motor strength, and reduced sensation were

confirmed on September 26, October 19, December 5, and February

20, 2016. (Tr. at 327-330, 417-418, 524-525.)

On September 10, 2018, Dr. Mikelis diagnosed plaintiff

with cervical HNP, cervical nerve root lesion, lumbar

radiculopathy, and lumbar HNP; he additionally confirmed that

plaintiff’s symptoms persisted. (Id. at 574.) On November 30,

2018, Dr. Lattuga completed a report for a “claim of disability

due to spinal impairment,” and opined that that due to

plaintiff’s spinal impairment, lumbar spine radiculopathy,

herniated nucleus pulposus, lumbar sprain and strain, cervical

herniated intervertebral disc, and cervical nerve root

impingement, she suffered from various work-related limitations.

(Joint Stip. at 7; Tr. at 725-730.) Dr. Lattuga identified the

following relevant positive clinical findings to support his

diagnoses: positive straight leg raise, limited range of motion

in the lumbar spine, limited range of motion in the cervical

spine, sensory loss in right L4/L5, sensory loss in right C4,

right C5, right C6, and altered dermatomes. (Tr. at 726.)

In summary, plaintiff’s medical records from New York

Spine Specialists LLP indicate consistent evidence of nerve root

compression characterized by neuro-anatomic distribution of pain

(evinced through diagnoses of lumbar and cervical

radiculopathy), limitation of motion of the spine, and motor

loss accompanied by sensory loss between April 9, 2015 and

November 30, 2018. Additionally, Dr. Lattuga’s report for

“claim of disability due to spinal impairment” noted a positive

straight leg raise test. (Id. at 726.)

2. Dr. Eduardo Alvarez

On March 2, 2016, Dr. Eduardo Alvarez, M.D., noted in

an independent orthopedic medical evaluation, plaintiff’s

restricted range of motion in the cervical and lumbar spine,

hypoesthesia, her ability to exert only up to 10 pounds of force

in holding, lifting, and pulling with no repetitive bending,

lifting, and twisting, and positive straight leg raising. (Id.

at 370.) Dr. Alvarez concluded that plaintiff manifested a

temporary, marked, orthopedic disability. (Id.)

On August 31, 2016, Dr. Alvarez conducted a second

evaluation following plaintiff’s back surgery by Dr. Lattuga,

and confirmed pain and restricted range of motion in the

cervical and lumbar spine, hypoesthesia over the thumb, index,

and middle fingers of both hands, hypoesthesias in both lower

extremities following no dermatomal pattern, and positive

straight leg raising. (Id. at 375-376.) Dr. Alvarez concluded

for a second time that plaintiff manifested a temporary, marked,

ongoing, orthopedic disability at this time. (Id. at 377.)

3. Physical Medicine and Rehabilitation of New York

Between August 19, 2016 and May 4, 2017, Drs. Derek

Johnson, M.D. and Gautam Khakar, M.D. at Physical Medicine and

Rehabilitation of New York noted plaintiff’s restricted range of

motion in the lumbar spine, reduced motor strength, and

diminished sensation in the bilateral hands and/or lower

extremities. (Id. at 344-345, 398-399, 498, 522-523, 953-958.)

On October 6 and December 1 of 2016 as well as January 19, March

16, and May 4 of 2017, Dr. Khakhar wrote that plaintiff was

“totally disabled.” (Tr. At 345, 497-499, 522-523, 958, 955.)

In summary, as described above, after reviewing the

administrative record, the court concludes that plaintiff

carried her burden at step three by providing evidence to

support a colorable finding of disability under Listing 1.04(A).

See Parks v. Comm'r of Soc. Sec., No. 19-cv-00505 (EAW), 2020 WL

3542123, at *6 (W.D.N.Y. June 30, 2020) (“Plaintiff has made at

least a colorable case that [she] meets [or equals] the

requirements of Listing 1.04(A) and thus, the ambiguities noted

above are critical to a finding of disability.”) (citing

Monsoori v. Comm'r of Soc. Sec., No. 17-cv-01161 (MAT), 2019 WL

2361486, at *6 (W.D.N.Y. June 4, 2019)).

“Because there is evidence that plaintiff's

impairments meet each of the requirements for listing 1.04A, the

ALJ must provide an explanation of his reasoning as to why he

believes the requirements are not met and explain the

credibility determinations and inferences he drew in reaching

that conclusion.” See Ryan v. Astrue, 5 F. Supp. 3d 493, 509

(S.D.N.Y. 2014); Norman v. Astrue, 912 F. Supp. 2d 33, 80–81

(S.D.N.Y. 2012); Rivera v. Astrue, No. 10-cv-4324 (RJD), 2012 WL

3614323, at *11–12 (E.D.N.Y. Aug. 21, 2012). Here, the court

concludes that the ALJ inadequately explained her reasoning that

the requirements under Listing 1.04(A) were unmet and,

therefore, remands this case for further proceedings consistent

with this Memorandum & Order.

C. The ALJ’s Analysis Was Inadequate, Warranting Remand

At step three, the ALJ, after reciting examples of

disorders of the spine under Listing 1.04, stated the following:

“the claimant has been diagnosed with lumbar radiculopathy and

cervical herniated discs but the technical requirements of the

listing are not satisfied.” (Tr. at 18.) There was no further

mention of Listing 1.04(A), no discussion of the technical

requirements, and no analysis of plaintiff’s medical records as

related to those requirements. The court finds that the ALJ’s

conclusory statement is “patently inadequate to substitute for

specific findings in view of the fact that plaintiff has at

least a colorable case for application of listing 1.04(A).”

Cherico v. Colvin, No. 12-cv-5734 (MHD), 2014 WL 3939036, at *28

(S.D.N.Y. Aug. 7, 2014). Remand, therefore, is warranted. See

Torres v. Colvin, No. 14-cv-479S, 2015 WL 4604000, at *4

(W.D.N.Y. July 30, 2015) (remanding where the ALJ’s “decision

lacks a meaningful discussion of Listing 1.04(A), which leaves

this Court unable to assess whether the ALJ’s decision is

supported by substantial evidence”); see also Rowe v. Berryhill,

No. 17-cv-00208 (MAT), 2018 WL 4233702, at *3 (W.D.N.Y. Sept. 6,

2018) (remanding where the ALJ did not discuss at step three the

evidence suggesting the requirements of Listing 1.04(A) were

met); McIntosh v. Berryhill, No. 17-cv-5403 (ER)(DF), 2018 WL

4376417, at *18 (S.D.N.Y. July 16, 2018) (remanding where

“conflicting medical evidence left unaddressed by the ALJ,

combined with significant omissions in Plaintiff's medical

records, render this Court unable to conclude that the ALJ's

ultimate decision that Plaintiff failed to satisfy Listing

1.04(A) was supported by substantial evidence), report and

recommendation adopted, No. 17-cv-5403 (ER)(DF), 2018 WL 4374001

(S.D.N.Y. Sept. 12, 2018).

On appeal, the Commissioner’s attorneys combed the

record for examination findings “at odds with the strict

requirements for disability under Listing 1.04(A)” to show why

plaintiff did not meet satisfy the Listing 1.04(A) criteria.

(Def. Cross-Mot. at 7.) The ALJ’s decision, however, made no

such effort, and “the ALJ (not the Commissioner's lawyers) must

‘build an accurate and logical bridge from the evidence to [his]

conclusion to enable a meaningful review.’” Hamedallah ex rel.

E.B., 876 F. Supp. 2d at 142. Because the ALJ’s decision did

not provide specific analysis of the requirements of Listing

1.04(A), this court is unable to meaningfully review the ALJ’s

step three analysis. See id. at 144 (remanding where “the ALJ

provided a one-sentence, conclusory analysis without any

recitation of the facts or medical evidence”); Proper v. Comm'r

of Soc. Sec., No. 12-cv-0098 (MAT), 2014 WL 7271650, at *11

(W.D.N.Y. Dec. 18, 2014) (remanding where “with regard to

Listing 1.04, the ALJ did not analyze, much less mention, any of

the relevant medical evidence regarding Plaintiff's diagnoses”);

Giambrone v. Colvin, No. 15-cv-05882 (PKC), 2017 WL 1194650, at

*18 (E.D.N.Y. Apr. 3, 2017) (remanding where “the ALJ merely

stated that “the record does not document the required symptoms

necessary to meet the requirements”).

Notwithstanding an unexplained rationale at step three

of the sequential analysis, the ALJ’s conclusion may be upheld

so long as the court is “able to look to other portions of the

ALJ's decision and to clearly credible evidence in finding that

his determination was supported by substantial evidence.”

Salmini v. Comm’r of Soc. Sec., 371 F. App’x 109, 112 (2d Cir.

2010) (summary order) (quoting Berry v. Schweiker, 675 F.2d 464,

469 (2d Cir. 1982)). Although the ALJ recited some of

plaintiff’s medical history, her analysis was explicitly

confined to her RFC determination: “the issue before the

undersigned is what is the most that the claimant can do given

her severe impairments.” (Tr. at 29.) In other words, the

ALJ’s analysis addressed only the RFC determination and did not

provide any rationale as to how the ALJ reconciled the record

evidence relevant to the specific criteria in Listing 1.04(A).

(Id. at 19-29.) Additionally, the ALJ’s RFC summary

specifically acknowledged plaintiff’s “severe impairments”

including lumbar radiculopathy and cervical herniated discs.

(Id.) Elsewhere in her RFC finding, the ALJ even cites evidence

which suggests some technical requirements in Listing 1.04(A)

may have been satisfied. (Id. at 21-23.) To the extent the ALJ

may have recited, but never explained in relation to Listing

1.04(A), potentially contradictory evidence, “mere recitation of

the medical evidence is insufficient unless the reports referred

to contain substantiated conclusions concerning the Listings,

and the ALJ expressly adopts the reasoning of those

conclusions.” Kovacevic v. Chater, No. 94-cv-600S, 1995 WL

866425, at *8 (W.D.N.Y. Sept. 28, 1995) (citing Booker v.

Heckler, 1984 WL 622, at *3 (S.D.N.Y. 1984)).

For these reasons, the court concludes that remand is

appropriate for clarification of the ALJ’s step three analysis

regarding Listing 1.04(A). See Ortiz, 2020 WL 7699304, at *8

(“Where evidence in the record suggests that a plaintiff could

meet criteria of Listing 104(A), remand is proper when the court

cannot determine whether the ALJ properly considered the Listing

because his only reference to it is a recitation of the

standard.” (internal quotation marks omitted)); see, e.g., Lamar

v. Berryhill, No. 17-cv-1019 (MPS), 2018 WL 3642656, at *8 (D.

Conn. Aug. 1, 2018) (remanding where the court was “largely left

to speculate how the evidence discussed in the ALJ's RFC

rationale applies in the Listings context, as the ALJ did not

make the necessary findings on issues pertinent to his

determinations at step three of the disability”); White-Swanson

v. Colvin, No. 14-cv-01070 (MAD), 2016 WL 917945, at *4

(N.D.N.Y. Mar. 10, 2016) (remanding where “the Court is left to

guess at the reasoning behind the ALJ's conclusions that

Plaintiff does not meet the listed impairments”); Norman v.

Astrue, 912 F. Supp. 2d 33, 81 (S.D.N.Y. 2012) (remanding where

“as a result of the medical evidence discussed above, and in

conjunction with the ALJ's failure to address the potential

applicability of Listing 1.04A, I cannot conclude that there is

‘sufficient uncontradicted evidence in the record to provide

substantial evidence for the conclusion that [p]laintiff failed

to meet step three.’” (citing Sava v. Astrue, No. 06-cv-3386

(KMK)(GAY), 2010 WL 3219311, at *4 (S.D.N.Y. Aug. 12, 2010))).

On remand, the ALJ should specifically explain her

findings regarding the technical requirements in Listing

1.04(A). “Plaintiff is clearly owed a more substantive

explanation of why he did not meet the Listing 1.04A. If, on

remand, Plaintiff is once again found not disabled at step

three, the ALJ must provide an explanation of what criteria from

Listing 1.04A Plaintiff failed to meet in consideration of all

of the evidence regarding his severe impairments of the cervical

spine. Specifically, the ALJ is directed to address all

conflicting evidence and provide reasons for discounting that

evidence which he rejects.” Nashir v. Berryhill, No. 18-cv-767

(HKS), 2020 WL 1445069, at *5 (W.D.N.Y. Mar. 25, 2020).

D. Plaintiff’s Remaining Arguments

Plaintiff also argues that the ALJ improperly weighed

medical evidence by failing to follow the treating physician

rule. Though the ALJ’s inadequate analysis at step three is a

sufficient basis for remand for further proceedings, this court

also directs the ALJ to apply and explain her treating physician

analysis.

Under the treating physician rule1, 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, 537 F.3d at 128); 20 C.F.R. §§ 404.1527(c)(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 record.”).

1 Plaintiff’s application for disability and disability insurance benefits was

filed on November 30, 2016. Therefore, the recent changes reflected in C.F.R.

§ 404.1520(c) for applications on or after March 27, 2017 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.

If an ALJ does not give controlling weight to the

treating physician’s medical opinion, the ALJ must consider

various factors to determine how much weight, if any, to give to

the opinion, including: “(1) the frequen[cy], length, nature,

and extent of treatment; (2) the amount of medical evidence

supporting the opinion; (3) the consistency of the opinion with

the remaining medical evidence; and (4) whether the physician is

a specialist.” Estrella v. Berryhill, 925 F.3d 90, 95–96 (2d

Cir. 2019) (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir.

2013)); 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 Fed. App’x 71, 74 (2d Cir.

2013) (summary order) (quoting Burgess, 537 F.3d at 129). The

ALJ must also set forth “good reasons” for not fully crediting

the opinion of the treating physician. Cervini v. Saul, 17-cv-

2128 (JMA) 2020 WL 2615929 at *5 (E.D.N.Y. May 21, 2020) (citing

Schaal, 134 F.3d 496, 503 (2d Cir. 1998)). Failing to provide

good reasons for declining to apply the treating physician rule

warrants remand. See Schaal v. Apfel, 134 F.3d 496, 503–04 (2d

Cir. 1998) (remanding where the Commissioner did not provide

good reasons for discrediting the treating physician’s

opinion.); see also Burgess, 537 F.3d at 129–30 (remanding after

concluding that “failure to provide such “‘good reasons' for

not crediting the opinion of a claimant's treating physician is

a ground for remand.” (quoting Snell v. Apfel, 177 F.3d 128, 133

(2d Cir. 1999)); Greek, 802 F.3d at 375 (remanding where the ALJ

did not offer good reasons for why he discredited the opinion of

the treating physician). On remand, the ALJ should consider and

apply the treating physician rule or explain her rationale for

declining to do so with good reasons, as explained above.

CONCLUSION

For the reasons set forth above, plaintiff’s motion

for judgment on the pleadings is GRANTED, defendant’s cross-

motion for judgment on the pleadings is DENIED, and the case is

REMANDED for further proceedings consistent with this Memorandum

and Order. The Clerk of Court is respectfully directed to enter

judgment in favor of plaintiff and close the case.

SO ORDERED.

/s/

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

July 7, 2021