The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DAVID BLUNI,
Plaintiff,
MEMORANDUM AND ORDER
v.
1:20-cv-02984 (KAM)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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KIYO A. MATSUMOTO, United States District Judge:
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff David Bluni appeals the final decision of the
Commissioner of Social Security (“Defendant” or “Commissioner”),
finding him not disabled within the meaning of the Social Security
Act (“Act”) and therefore not eligible for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”).
Presently before the Court are Plaintiff’s motion for judgment on
the pleadings, vacating the final decision of the Commissioner and
remanding for further proceedings, (ECF No. 18, Plaintiff’s Motion
for Judgment on the Pleadings), and Defendant’s cross-motion for
judgment on the pleadings, (ECF No. 20, Defendant’s Cross-Motion
for Judgment on the Pleadings and in Opposition to Plaintiff’s
Motion for Judgment on the Pleadings). For the reasons stated
below, Plaintiff’s motion is granted, Defendant’s motion is
denied, and the case is remanded for further proceedings consistent
with this Memorandum and Order.
BACKGROUND
On June 24, 2016, Plaintiff filed applications for DIB
and SSI, alleging disability since May 27, 2016. (ECF Nos. 9 ‒
9-10, together, Administrative Transcript (“Tr.”), at 13.)
Plaintiff claimed that he was disabled due to sequalae from
bladder cancer, gastroesophageal reflux disorder, and
musculoskeletal pain. (Id. at 314.) His applications were denied
on November 4, 2016. (Id. at 13.)
On November 10, 2016, Plaintiff filed a written request
for a hearing before an administrative law judge. (Id.)
Administrative Law Judge Dina R. Loewy (“ALJ”) held two hearings
by video, on October 8, 2018 and May 21, 2019, during which
Plaintiff appeared and testified. (Id.) Plaintiff was
represented by attorneys William Aronin, Esq. at the first
hearing, and by Amy Shenstone, Esq. at the second hearing. (Id.
at 38, 75.) Dawn Blythe, a vocational expert, appeared at the
May 21, 2019 hearing and offered opinion testimony. (Id. at 77.)
In a decision dated August 8, 2019, the ALJ determined that
Plaintiff was not disabled, and Plaintiff appealed her decision
to the Appeals Council. (Id. at 26.) On May 1, 2020, the Appeals
Council denied review of the ALJ’s decision, rendering it the
final decision of the Commissioner. (Id. at 1.)
Plaintiff initiated the instant action on July 6, 2020,
represented by new counsel, Christopher James Bowes. (ECF No. 1,
Complaint (“Compl.”).) On July 9, 2020, the Court issued a
scheduling order. (ECF No. 5, Scheduling Order.) On December
29, 2020, Defendant filed the Administrative Transcript. (Tr.)
On August 3, 2021, Plaintiff filed his notice of motion
and memorandum of law in support of his motion for judgment on
the pleadings. (ECF Nos. 18 and 19.) On August 3, 2021, Defendant
filed the cross-motion and memorandum of law in support of
Defendant’s cross-motion for judgment on the pleadings and in
opposition to Plaintiff’s motion. (ECF No. 20 and 21.) That same
day, Plaintiff filed a reply in further support of his motion for
judgment on the pleadings. (ECF No. 22).
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 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
may set aside the Commissioner’s determination that a claimant is
not disabled 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) (internal
quotation marks and citation omitted); see also 42 U.S.C. §
405(g). “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) (citation omitted). 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, a claimant 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.” Id.
§ 423(d)(1)(A). 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. Id. § 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) (alterations in original)).
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
can be summarized 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. § 404.1520(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(c). Further, if the
Commissioner does find a combination of impairments, the combined
impact of the impairments, including those that are not severe (as
defined by the regulations), will be considered in the
determination process. 20 C.F.R. § 416.945(a)(2). At steps one
through four of the sequential five-step framework, the claimant
bears the “general burden of proving . . . disability.” Burgess,
537 F.3d at 128. At step five, the burden shifts from the claimant
to the Commissioner, requiring that the Commissioner show that, in
light of the claimant’s residual functional capacity, 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).
DISCUSSION
I. The ALJ’s Disability Determination
Using the five-step sequential process described above,
the ALJ determined at step one that Plaintiff had not engaged in
substantial gainful activity since May 27, 2016, the alleged onset
date. (Tr. at 16.)
At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: status post bladder cancer,
obesity, post-traumatic stress disorder (“PTSD”), a major
depressive disorder, and a panic disorder. (Id.) The ALJ found
that Plaintiff’s impairments “significantly limit [his] ability to
perform basic work activities.” (Id.)
At step three, the ALJ determined that through the date
last insured, Plaintiff did not have an impairment or combination
of impairments that equaled the severity of listed impairments
under 20 C.F.R. Part 404 Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526). (Tr. at 16.) First, the ALJ
determined that Plaintiff’s mental impairments, considered singly
and in combination, did not equal in severity to the impairments
set forth in Listing Sections 12.04 (Depressive, Bipolar and
Related Disorders), 12.06 (Anxiety Related Disorders), and 12.15
(Trauma and Stressor Related Disorders). (Id.) According to the
ALJ, although Plaintiff’s mental impairments satisfied the various
“A” criteria of the aforementioned listings, they failed to meet
the “B” and “C” criteria. (Id. at 16‒18.) To satisfy the “B”
criteria, Plaintiff’s mental impairments must result in at least
one extreme or two marked limitations in the following areas of
mental functioning: (1) understanding, remembering, or applying
information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting or managing
oneself. (Id.) Based on her review of Plaintiff’s medical
records, the ALJ determined that Plaintiff had a moderate
limitation in each of the four areas of mental functioning. (Id.)
The ALJ determined that Plaintiff had a moderate limitation in
understanding, remembering, or applying information, based on the
January 27, 2017 report of Dr. Victoria Nichols, Plaintiff’s
psychologist, which stated that Plaintiff has an average IQ and
normal recent and remote memories, and Plaintiff’s August 10, 2016
Adult Function Report, in which he noted that he did not need help
or reminders to care for his personal needs or to take medication.
(Id.) The ALJ determined that Plaintiff had a moderate limitation
in interacting with others, reasoning that although Plaintiff’s
medical records noted that Plaintiff isolated himself socially,
Plaintiff stated in the Adult Function Report that he spent time
with others three times a week and had no problem getting along
with family, friends, neighbors, or others. (Id.) As for the
third area of mental functioning, concentrating, persisting, or
maintaining pace, the ALJ also found a moderate limitation, noting
that though Dr. Nichols reported Plaintiff having distractible
attention and poor concentration on January 27, 2017, Plaintiff
stated in the Adult Function Report that he could follow written
and oral instructions, which indicated that he had sufficient
attention and concentration. (Id.) Finally, the ALJ determined
that Plaintiff had a moderate limitation in adapting or managing
oneself, having observed that Plaintiff consistently tested as
having good to fair insight, judgment, and impulse control. (Id.)
The ALJ concluded that Plaintiff’s mental impairments did not
satisfy the “C” criteria of Listing Sections 12.04, 12.06, and
12.15, reasoning, “there is no evidence that [Plaintiff] has a
serious and persistent mental disorder of two or more years with
evidence of both: (1) mental health treatment, mental health
therapy, psychosocial support, or a highly structured setting that
is ongoing and that diminishes the symptoms and signs of a mental
disorder; and (2) a minimal capacity to adapt to changes to [his]
environment or to demands that are not already part of [his] daily
life.” (Id. at 17‒18.)
Next, the ALJ determined that Plaintiff’s bladder cancer
was not equal in severity to the criteria of Listing Section 13.22
(Urinary Bladder Carcinoma) because there was no evidence of
carcinoma that infiltrated beyond the bladder wall, was recurrent
after total cystectomy, was inoperable or unresectable, with
metastases to or beyond the regional lymph nodes, or of small-cell
(oat-cell) carcinoma. (Id. at 18.) The ALJ noted that Plaintiff’s
bladder cancer had not recurred since October 2016. (Id.)
At step four of the five-step sequential evaluation
process, the ALJ found that plaintiff had the residual functional
capacity (“RFC”) to perform medium work,1 with the following
conditions: (1) occasionally climbing ramps or stairs; (2) never
climbing ladders, ropes, or scaffolds; (3) occasionally balancing;
(4) frequently stooping; (5) occasionally kneeling; (6) frequently
crouching; (7) never crawling; (8) avoiding concentrated exposure
to extreme temperatures, wetness, and humidity; (9) avoiding even
moderate exposure to irritants such as fumes, odors, dusts, gases,
and poorly ventilated areas; (10) avoiding all exposure to
hazardous machinery, unprotected heights, and operational control
of moving machinery; (11) simple, routine tasks; (12) low stress
jobs defined as only occasional decision-making and only
occasional changes in the work setting; (13) no conveyor belt work;
and (14) only occasional interaction with the public or co-workers
and supervisors. (Id.)
1 The Court notes that though the ALJ cites to 20 C.F.R. §§ 404.1567(b) and
416.967(b) for the definition of medium work, medium work is defined under 20
C.F.R. §§ 404.1567(c) and 416.967(c), as “work [that] involves lifting no more
than 50 pounds at a time with frequent lifting or carrying of objects weighing
up to 25 pounds.” “If someone can do medium work, . . . he or she can also do
sedentary and light work,” and light work “requires a good deal of walking or
standing, or . . . sitting most of the time with some pushing and pulling of
arm or leg controls.” 20 C.F.R. §§ 404.1567(b)-(c), 416.967(b)-(c).
In determining that Plaintiff had the RFC to perform
medium work, with the aforementioned conditions, the ALJ relied on
Plaintiff’s hearing testimony and medical records that included,
among others, pharmacy records, hospital records, and treatment
records from Drs. Nichols (psychologist), Anthony Conciatori
(psychiatrist), Brian Mignola (primary care provider), David Puro
(psychologist), and Plaintiff’s treating urologist, Dr.
Karanikolas. (Id. at 18-24.) The ALJ reasoned that although
Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms,” Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record . . . .” (Id.
at 21.)
With regards to the physical impairments, the ALJ
determined that Plaintiff’s testimony that he is unable to work
and that it is difficult him to go out due to urinary pain and
frequency is not supported by his treatment records, which stated
that his urinary symptoms improved with medication and that he
reported feeling well and denied experiencing dysuria to his
urologist. (Id.) The ALJ noted that Plaintiff’s “overall physical
examinations have remained primarily benign since his two bladder
surgeries” and that his bladder cancer has not recurred since
October 2016. (Id.) The ALJ also noted the inconsistencies
between Plaintiff’s reports to his mental health professionals and
primary care provider, and what he reported his urologist, with
regards to the intensity and limiting effects of his urinary
symptoms. (Id.)
The ALJ gave little weight to Dr. Mignola’s August 2,
2016 opinion that Plaintiff could never perform exertional
activities or postural functions, reasoning that the opinion was
rendered two months after Plaintiff’s first resection surgery,
Plaintiff’s overall physical health has improved since, and his
bladder cancer has not recurred. (Id. at 22.) In addition, the
ALJ noted that Plaintiff would have had to perform at least some
exertional and postural functions to attend his hospital visits
and undergo procedures. (Id. at 22.)
The ALJ similarly afforded little weight to Dr.
Mignola’s November 8, 2018 opinion that Plaintiff was 100% disabled
and that his symptoms made it impossible for him to work, reasoning
that Dr. Mignola’s treatment notes demonstrated that Plaintiff’s
physical examinations were overall benign, with the exception of
his urinary symptoms, which had improved with medication. (Id.)
She also noted that Plaintiff’s bladder cancer is in remission and
there was no indication of Plaintiff’s obesity limiting his
physical functioning. (Id.) Finally, the ALJ gave little weight
to Dr. Mignola’s April 30, 2019 opinion that Plaintiff was either
completely disabled or limited to sitting for an hour and standing
and/or walking for 15 minutes, and was unable to perform any
postural functions, having found that the opinion was inconsistent
with Dr. Mignola’s own treatment records, as well as the treatment
records of Plaintiff’s urologist. (Id. at 23.) For these reasons,
the ALJ concluded that Plaintiff was capable of performing work-
related physical activities.
As for Plaintiff’s mental impairments, the ALJ found
that despite continuous reports by Plaintiff of symptoms of PTSD,
panic, depression, and variable mood, Plaintiff’s mental status
examinations “show[ed] fairly benign results” and that Plaintiff
reported more than once that medication helped stabilize his mood.
(Id. at 22.) The ALJ gave little weight to Dr. Puro’s October 26,
2018 opinion that Dr. Conciatori should raise Plaintiff’s level of
disability to one hundred percent, reasoning that the opinion was
“not based on any objective evidence,” but a desire to increase
the amount of Plaintiff’s worker’s compensation benefit. (Id. at
23.) The ALJ likewise afforded little weight to Dr. Puro’s
opinions that Plaintiff was disabled and had poor to no ability to
perform work-related mental activities, and concluded that such
opinions were based not on Dr. Puro’s objective assessment of
Plaintiff’s mental functioning but Plaintiff’s subjective
complaints regarding his symptoms. (Id.) She also added that any
disability determination was reserved to the Commissioner. (Id.)
Similarly, the ALJ afforded little weight to Dr.
Nichols’ July 31, 2017 and May 26, 2017 opinions that Plaintiff
was unable to work, reasoning that such opinions were based on
Plaintiff’s self-reporting and not on formal mental status
examinations by Dr. Nichols. (Id.) The ALJ also noted that
Plaintiff’s psychological symptoms were caused by stressors
related to his life events and were not “independent psychological
symptoms.” (Id.) The ALJ gave little weight to Dr. Conciatori’s
opinion that Plaintiff was psychiatrically disabled and had poor
to no ability to perform various work-related mental activities,
reasoning that the results of Plaintiff’s mental health
examinations were benign overall, other than his variable mood,
Plaintiff was given a Global Assessment of Functioning (“GAF”)2
score of 60, his psychological symptoms improved with medication,
and Plaintiff mainly complained of stressors related to family,
financial, and medical issues. (Id.)
At step five of the sequential evaluation process, the
ALJ found that, based on Plaintiff’s age, education, work
experience, and RFC, he would not be able to return to his past
2 “The Global Assessment of Functioning (GAF) Scale (DSM—IV Axis V) ranks
psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186
n.1 (2d Cir. 2004). Courts in this Circuit have recognized that “the utility
of this metric is debatable, particularly after its exclusion from the fifth
edition of the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS.” Berry
v. Comm’r of Soc. Sec., No. 14-cv-3977(KPF), 2015 WL 4557374, at *3 n.10
(S.D.N.Y. July 29, 2015)
relevant work as a commercial cleaner, which is too physically
demanding. (Id. at 24.) The ALJ took the vocational expert’s
testimony into account in arriving at this conclusion. (Id.) In
addition, the ALJ determined that there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform (20 C.F.R. §§ 404.1569, 404.1569a). (Id. at 25.) At the
May 21, 2019 hearing, the vocational expert testified that
Plaintiff would be able to perform the requirements of
representative occupations such as Photocopy Machine Operator,
Mail Clerk, and Page. (Id.) 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). (Id. at 26.)
II. The ALJ’s Assessment of Opinion Evidence
Under the treating physician rule, the opinion of a
claimant’s treating physician as to “the nature and severity of
the [claimant’s] impairment is 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) (citing Burgess, 537 F.3d
at 128; 20 C.F.R. § 404.1527(c)(2)).3 An ALJ who does not accord
3 In 2017, new regulations were issued that changed the standard for
evaluating medical opinion evidence for claims filed on or after March 27,
2017. See 20 C.F.R. § 404.1520c. However, because Plaintiff filed his claims
on June 24, 2016, the previous regulations, including the treating physician
rule, still apply.
controlling weight to a treating physician’s medical opinion must
explicitly consider the following non-exclusive Burgess factors in
determining how much weight to give to the opinion: (1) the
frequency, 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) (citation omitted); see 20 C.F.R. §
404.1527(c)(2); see also Coard Adukpo v. Berryhill, No. 19-cv-
2709(BMC), 2020 WL 3410333, at *1 (E.D.N.Y. Jun. 22, 2020). “The
ALJ must then ‘comprehensively set forth [her] reasons for the
weight assigned to a treating physician’s opinion.’” Cichocki v.
Astrue, 534 F. App’x. 71, 75 (2d Cir. 2013) (citing Burgess, 537
F.3d at 129).
However, “a treating physician's conclusion that a
claimant is disabled is not entitled to controlling weight, as
this determination is reserved to the Commissioner.” Quiles v.
Saul, 19-cv-11181(KNF), 2021 WL 848197, at *9 (S.D.N.Y. Mar. 5,
2021). “[W]hen an ALJ discounts a treating physician’s opinion
that a claimant is disabled, the ALJ is obligated to give good
reasons for doing so.” Id.
Plaintiff contends that the ALJ improperly rejected the
opinions of his treating psychologist, Dr. Puro, and psychiatrist,
Dr. Conciatori. (ECF No. 19, Plaintiff’s Memorandum of Law in
Support of Plaintiff’s Motion for Judgment on the Pleadings (“Pl.
Mem.”), at 11‒12.) The Court discusses each of their opinions in
turn.
The ALJ’s Consideration of Dr. Puro’s Opinions
The Court finds that the ALJ reasonably afforded little
weight to Dr. Puro’s October 26, 2018 opinion that Dr. Conciatori
should raise Plaintiff’s level of disability from eighty-five to
one hundred percent, having found that Dr. Puro’s own notes, which
stated, “contact Dr. Conciatori-raise disability to 100%-causing
problem with $,” (Tr. at 1007), indicated that such opinion was
based not on Dr. Puro’s assessment of Plaintiff’s mental
functioning but rather his “feeling that the level of disability
should be raised so as not to interfere with [Plaintiff’s] worker’s
compensation benefit amounts.” (Id. at 21, 23.) However, the
Court concludes that the ALJ did not provide good reasons for
discounting Dr. Puro’s September 21, 2018 opinion that Plaintiff
was permanently and totally disabled. All that the ALJ gave as
the basis for her decision was her conclusory statement that Dr.
Puro did not perform an objective assessment of Plaintiff’s mental
ability but overly relied on Plaintiff’s subjective complaints
regarding his symptoms. (Id. at 23.)
Additionally, the Court finds that the ALJ, in
concluding that Dr. Puro’s opinions on the nature and severity of
Plaintiff’s mental impairments, or his diagnoses, are not entitled
to controlling weight, erred by failing to consider many of the
Burgess factors, such as the frequency, nature, and extent of Dr.
Puro’s treating relationship with Plaintiff. “An ALJ's failure to
‘explicitly’ apply the Burgess factors when assigning weight [to
a treating physician’s opinion] is a procedural error.” Estrella,
925 F.3d at 96 (citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d
Cir. 2013)). See Day v. Astrue, No. 09-cv-00131(DRH), 2011 WL
1467652, at *15 (E.D.N.Y. Apr. 18, 2011) (“[F]ailure to follow the
treating physician rule is a failure to apply the proper legal
standard and is grounds for reversal.”).
In Dr. Puro’s September 21, 2018 assessment of
Plaintiff’s ability to perform work-related mental abilities, he
opined that Plaintiff is “severely depressed, anxious and
agitated,” and that his psychological symptoms interfere with his
cognitive functioning. (Tr. at 832‒33.) He determined that, other
than maintaining his personal appearance, Plaintiff has poor to
zero ability to perform the activities requisite to adjusting to
a job, such as, among others, following work rules, understanding,
remembering, and carrying out job instructions, relating to co-
workers, dealing with the public, using judgment, interacting with
supervisor(s), functioning independently, and maintaining
attention/concentration. (Id.) These opinions are also
consistent with Dr. Puro’s treatment records from September 5,
2018 to May 1, 2019, in which he repeated noted that Plaintiff is
severely depressed, anxious, and agitated, has difficulty focusing
and concentrating, suffers from PTSD, has flashbacks of 9/11, has
trouble functioning day to day, and is socially isolated and
withdrawn. (Id. at 837‒41, 980‒1010.)
The ALJ arrived at an RFC inconsistent with the diagnoses
of Dr. Puro, Plaintiff’s treating psychologist, finding Plaintiff
capable of performing medium work that involves “simple, routine
tasks” and “low stress,” with “only occasional decision-making .
. . changes in the work setting . . . interaction with the public
or co-workers and supervisors.” (Id. at 18.) Though the ALJ made
note of Dr. Puro’s diagnoses, (Id. at 21), she did not analyze
them using the Burgess factors nor provided good reasons for not
according them controlling weight. In fact, nowhere in the ALJ’s
decision does it mention how much weight she accorded Dr. Puro’s
diagnoses. And the ALJ did not provide any basis for her decision
to give greater weight to Dr. Conciatori’s mental status
examinations of Plaintiff than Dr. Puro’s diagnoses, nor did she
proffer scientific support for her conclusion that Plaintiff’s
psychological symptoms are less serious because they “stemmed form
his worry about his financial, family and physical health
stressors.” (Id. at 22.)
Additionally, the Court finds that the ALJ cherry-picked
parts of Plaintiff’s medical records that supported her
conclusion, while ignoring the portions of the records that did
not further corroborate her findings. The Court is cognizant that
an ALJ may “only credit portions of a medical source opinion, or
weigh different parts of the opinion differently,” however, the
ALJ must always “provid[e] sound reasons for the discrepancy.”
Destina v. Berryhill, 17-cv-2382(ADS), 2018 WL 4964103, at *6
(E.D.N.Y. Oct. 15, 2018). Here, the ALJ, in concluding that
Plaintiff’s medical impairments are not as severe as Plaintiff
suggested, noted that “[o]ne of his treating mental health
providers noted that the claimant experienced moderate levels of
anxiety and stress” and that Plaintiff was assessed a GAF score of
60. (Tr. at 22.) It appears that the ALJ relied on the May 26,
2017 opinion of Dr. Nichols, who treated Plaintiff from December
2016 to May 2017, (Id. at 694-714), but did not provide any reasons
for her reliance on Dr. Nichols’ opinion over the diagnoses of Dr.
Puro. See Clarke v. Colvin, No. 15-cv-354, 2017 WL 1215362, at *9
(S.D.N.Y. Apr. 3, 2017) (“[A]n ALJ may not ‘pick and choose
evidence which favors a finding that the claimant is not
disabled.’”) (citing Rodriguez v. Astrue, No. 07-cv-534, 2009 WL
637154, at *25 (S.D.N.Y. Mar. 9, 2009)). Finally, the ALJ
acknowledged that a GAF score is a “snapshot assessment” and does
“not represent [Plaintiff’s] overall functioning over any
significant period of time” but did not explain why she then
accorded more weight to a GAF score indicating only moderate mental
limitations over Plaintiff’s treating psychologist’s diagnoses
finding him severely impaired.
Accordingly, the Court finds that the ALJ’s improper
discounting of Dr. Puro’s diagnoses without a sufficient
explanation warrants a remand. On remand, the ALJ is directed to
comprehensively weigh and apply the regulatory factors and
consider the record in its entirety to determine the weight of Dr.
Puro’s diagnoses. If the ALJ determines that the opinions of
Plaintiff’s treating physician are not entitled to controlling
weight, the ALJ “must nonetheless articulate a basis for the
alternative weight assigned.” Knight v. Comm’r, No. 18-cv-
2474(KAM), 2020 WL 3085778 at *7 (E.D.N.Y. June 10, 2020).
The ALJ’s Consideration of Dr. Conciatori’s Opinions
The Court finds that the ALJ offered good reasons for
giving little weight to Dr. Conciatori’s opinion finding Plaintiff
psychiatrically disabled, based on the inconsistencies between the
disability determination and Dr. Conciatori’s own reports of
mental status examinations that he conducted on Plaintiff, in which
he consistently found that Plaintiff “ma[de] fair eye contact,”
“show[ed] normal psychomotor status,” had “reactive/appropriate”
affect, “congruent” mood, “goal-oriented” thought process, and
good insight, judgment, and impulse control. (Tr. at 24, 715‒17,
719, 825‒30, 923‒41.) The ALJ also noted that Plaintiff cares for
his autistic son, “a task which requires greater physical and
mental functional abilities than [Plaintiff] is alleging,” and
that Dr. Conciatori’s treatment notes indicated that Plaintiff’s
psychological symptoms showed improvements with medication. (Id.
at 24.)
The Court next turns to Dr. Conciatori’s opinion
regarding the nature and severity of Plaintiff’s mental
impairments. In Dr. Conciatori’s September 26, 2018 medical
assessment of Plaintiff’s ability to perform work-related mental
activities, he opined that Plaintiff has poor concentration, poor
response to stress from environments, poor frustration tolerance,
a poor organizational skill set, and is irritable. (Id. at 834-
35.) Additionally, Dr. Conciatori determined that Plaintiff has
seriously limited ability to follow work rules, relate to co-
workers, use judgment, and understand, remember, and carry out
simple to detailed job instructions. (Id.) Finally, he opined
that Plaintiff has poor to no ability to deal with the public,
interact with supervisor(s), deal with work stresses, function
independently, maintain attention/concentration, behave in an
emotionally stable manner, relate predictably in social
situations, and demonstrate reliability. (Id.)
The Court finds that like her treatment of Dr. Puro’s
diagnoses, the ALJ, in deciding to afford little weight to Dr.
Conciatori’s opinion that Plaintiff had seriously limited to no
ability to perform a range of work-related mental abilities, erred
by failing to consider many of the Burgess factors, such as the
frequency, nature, and extent of Dr. Conciatori’s treating
relationship with Plaintiff. Nevertheless, the Court finds this
error not reversible, based on the sound reasons provided by the
ALJ for not according controlling weight to Dr. Conciatori’s
opinion, namely that it is inconsistent with his own treatment
notes stating that Plaintiff’s psychological symptoms have shown
improvements with medication and the results of his mental status
examinations on Plaintiff. Cf. Quiles, 2021 WL 848197, at *9 (“In
the absence of other good reasons for the weight assigned to the
treating physician’s opinion, failure to apply the Burgess factors
is grounds for remand.”).
Thus, because the ALJ set forth good reasons for the
respective weight she assigned to Dr. Conciatori’s opinions, the
Court finds that ALJ properly applied the treating physician rule.
III. Substantial Evidence Supports the ALJ's Findings that
Plaintiff Is Not Disabled Due to His Physical Impairments
In reviewing decisions of the ALJ, the Court must
determine whether substantial evidence supports her decision.
Jones ex rel. T.J. v. Astrue, No. 07–cv–4886, 2010 WL 1049283, at
*4 (E.D.N.Y. Mar. 17, 2010). “Substantial evidence” is relevant
evidence which a “reasonable mind might accept as adequate to
support a conclusion.” Halloran, 362 F.3d at 31.
Plaintiff argues that the ALJ “ignored [Plaintiff’s]
complaints regarding frequency, urinary incontinence, and BCG
treatments.” (Pl. Mem. at 5.) As an initial matter, the Court
finds that the ALJ did not “fail[ ] to account for how Plaintiff’s
urinary frequency, urinary incontinence, and treatments with BCG
would interfere with his ability to hold a job.” (Id. at 6.)
Rather, the ALJ concluded that Plaintiff’s urinary symptoms were
not as severe as Plaintiff alleged them to be, based on her review
of Plaintiff’s medical records, and that the BCG treatment regimen
was not so restrictive as to render Plaintiff unable to work. (Tr.
at 21.)
The Court finds that there is substantial evidence in
the record to support the ALJ’s determination that Plaintiff’s
statements concerning the intensity, persistence, and limiting
effects of his urinary symptoms “are not entirely consistent with
the medical evidence.” (Id.) Specifically, the Court finds that
Plaintiff’s testimony and Dr. Mignola’s November 8, 2018 opinion
that Plaintiff’s urinary frequency and incontinence, and “pain
from cancer” are so severe that he is prohibited from working, are
not supported by the treatment notes of his urologist, Dr.
Karanikolas. (Id. at 798‒801, 842‒65, 920.) Dr. Karanikolas
treatment notes from February 15, 2017 to October 4, 2018, indicate
that the results of Plaintiff’s cystoscopies were benign, showing
no evidence of recurrence of Plaintiff’s bladder cancer, and that
Plaintiff did not experience any major complications from BCG
treatment. (Id. at 798‒801, 842‒65.) Dr. Karanikolas did note
Plaintiff’s urinal frequency on July 26, 2017, but he attributed
it to Plaintiff’s water intake, which indicated that he did not
find the frequency troubling. (Id. at 862.) Furthermore, Dr.
Karanikolas’ treatment notes from February 28, 2018 state that
Plaintiff specifically denied experiencing dysuria, hematuria,
lower urinary tract symptoms, or fever or chills. (Id. at 850‒
52.) Moreover, although Plaintiff complained of suffering from
intermittent right flank pain, Dr. Karanikolas’ treatment notes
from March 14, 2018 indicate that the pain was resolved by then.
(Id.) Finally, as the ALJ noted, although Plaintiff testified
that he wears diapers all the time due to the severity of his
urinary incontinence, there was no mention of diapers anywhere in
Dr. Karanikolas’ treatment records. (Id. at 21.)
The Court also notes, as the ALJ did, the inconsistencies
between the treatment records of Drs. Mignola and Karanikolas with
regard to the severity of Plaintiff’s physical impairments. For
example, Dr. Mignola, Plaintiff’s primary care provider, stated in
his treatment notes dated September 5, 2017 that Plaintiff was
experiencing abdominal pain from BCG treatment. (Id. at 739.)
However, Dr. Karanikolas’ treatment records do not mention of any
abdominal pain or complications from Plaintiff’s August 2017 BCG
treatment, other than low grade temperature and passing of clots
after the second BCG instillation, which resolved after 24 hours.
(Id. at 856‒61.) Similarly, Dr. Mignola reported in his treatment
notes dated November 12, 2018 that Plaintiff was experiencing
“frequent urination and pressure,” penile pain, and acute, bloody,
and burning discharge that started months ago, but Dr. Karanikolas
noted no complications during Plaintiff’s October 4, 2018
cystoscopy visit, during which a “flexible cystoscope was used to
visualize the urethra and bladder.” (Tr. at 843.)
Based on the foregoing, the Court finds that there is
sufficient evidence in the record for “a reasonable mind [to]
accept as adequate to support” the conclusion that Plaintiff
possesses the RFC to perform medium work. Halloran, 362 F.3d at
31.
CONCLUSION
Federal regulations explicitly authorize a court, when
reviewing decisions of the Commissioner, 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 appropriate
where further findings or explanation will clarify the rationale
for the ALJ’s decision. Pratts v. Charter, 94 F.3d 34, 39 (2d
Cir. 1996)
For the reasons previously set forth, the Court grants
Plaintiff’s motion for judgment on the pleadings; denies
Defendant’s cross-motion for judgment on the pleadings; and
remands this case for further proceedings consistent with this
Memorandum and Order. The Clerk of Court is respectfully directed
to close this case and enter judgment in favor of Plaintiff. The
parties shall confer in an attempt to resolve Plaintiff’s request
for attorney’s fees.
SO ORDERED.
DATED: February 10, 2022
Brooklyn, New York
__________/s/_______________
HON. KIYO A. MATSUMOTO
United States District Judge