# Colon v. Saul, Commissioner of Social Security

> District Court, E.D. New York · July 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10306500

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

CARMEN COLON,
MEMORANDUM AND ORDER
Plaintiff, 20-cv-2113(KAM)

v.

ANDREW SAUL, COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306500. Public record. Not legal advice.