Davide v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MATTHEW DAVIDE, :

Plaintiff, :

: MEMORANDUM DECISION AND

- against - ORDER

:

ANDREW M. SAUL, Commissioner of Social 20-CV-3690 (AMD)

:

Security,

Defendant. :

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A NN M. DONNELLY, United States District Judge:

The plaintiff challenges the Social Security Commissioner’s decision that he was not

disabled for the purpose of receiving Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act (“the Act”). (ECF No. 1 ¶ 1.) Be fore the Court are the parties’ cross-

motions for judgment on the pleadings. (ECF Nos. 9, 10, 12.) For the reasons set forth below,

the plaintiff’s motion for judgment on the pleadings is granted, the Commissioner’s motion is

denied, and the case is remanded for further proceedin gs consistent with this opinion.

BACKGROUND

The 41-year-old plaintiff, a former police officer, had back surgery in 2010. In

December 2014, he re-injured his back in a work-related car accident. (ECF No. 1 ¶ 8; ECF No.

10 at 3; Tr. 212, 288, 294.) He had spine surgery on March 11, 2015 and again on February 21,

2017. (ECF No. 10 at 8, 14; Tr. 335, 393-99.) His treatment included regular physical therapy,

steroid injections and pain medication (see, e.g., ECF No. 10 at 11), but he still had lower back

and right leg pain. (ECF No. 10 at 17; Tr. 417.) In June 2016, the New York City Medical

Board concluded that the plaintiff could no longer work as a police officer, and granted him

accidental disability retirement benefits. (ECF No. 1 ¶ 10.)

Three of the plaintiff’s treating physicians—Dr. Sheeraz Qureshi and Dr. John Reilly,

both orthopedic surgeons, and Dr. Perry Drucker, a physical medicine and rehabilitation

specialist—concluded that he was disabled. Dr. Qureshi, who treated the plaintiff beginning in

January 2015, determined in January 2016 that the plaintiff was “disabled from work because he

cannot lift heavy objects and cannot sit or stand for prolonged periods because of instability in

his spine and because of constant pain in his lower back and right leg. This is a permanent

disability.” (Tr. 338, 369.) Dr. Reilly, who started treating the plaintiff in December 2016, made

multiple findings—in December 2016, September 2017, May 2018, July 2018 and April 2019—

that the plaintiff was “totally disabled” and “unable to work.” (Tr. 204, 205, 235, 423, 425, 426,

432-34.) On July 7, 2018, he made the following determination:

The physical disabilities resulting from the incident (12/02/2014) involve pain in

his low back radiating into his right leg limiting his physical capacities. His ability

to stand or walk is no more than 15 minutes before spasm, tightness and pain,

burning in nature, make him stop. Similarly[,] his capacity to sit in one position

uninterrupted is limited to 15 minutes. . . . At this time[,] the patient has made full

surgical recovery from the fusion. The fusion is healed[;] however[,] the disability

resulting from the injury persists. . . . His capacity for activities of daily living are

basic[;] he can bathe, toilet and dress independently. The prognosis, having

undergone two spinal surgeries and an exhaustive conservative treatment protocol,

at this time[,] is poor[,] and there will be permanency associated with this injury.

(Tr. 422-23.) Dr. Reilly concluded that the plaintiff was “left with a permanent total disability,”

and that “the likelihood of [the plaintiff] performing any type of gainful employment at any time

in the future is poor.” (Tr. 423.) Dr. Drucker had treated the plaintiff since November 2016, and

during a March 13, 2019 examination, observed “L3-S1 paraspinal spasm and tenderness,

moderate,” and “positive straight leg raise on the right at 45 degrees.” (Tr. 428.) He opined:

Patient . . . still has persistent disability from his injuries. [The plaintiff] can

ambulate independently but does have a limit of approximately 20-30 minutes . . . .

Patient’s capacity to partake in his activities of daily living are basic. He could

bathe, toilet and dress independently.

Patient has undergone two spinal surgeries, status-post his . . . motor vehicle

accident and has exhausted conservative rehabilitative intervention. At this time,

patient’s functional prognosis is poor[,] and there will be permanicity [sic]

associated with his injury. In my opinion, with a good deal of medical certainty,

[the plaintiff] is presently totally disabled[,] and this is permanent in nature. The

likelihood of this patient performing any significant gainful employment at any

time in the future is poor.

(Tr. 429.)

On January 15, 2018, the plaintiff submitted a claim for disability benefits to the

Department of Justice’s (“DOJ”) Public Safety Officers’ Benefits Office (“PSOB”).1 (Tr. 212.)

Dr. William Oetgen did an independent evaluation of the plaintiff’s PSOB claim in November

2018. (Tr. 213.) He found that the plaintiff returned to work as a police officer after the

December 2014 accident, but was placed on light duty “because of his painful back and right leg

symptoms.” (Id.) After reviewing the plaintiff’s records, Dr. Oetgen determined:

A subsequent lumbar MRI scan demonstrated a disc herniation at L4-5. When

conservative therapy failed to relieve his painful symptoms, a right-sided

laminectomy and discectomy at L4-5 was accomplished on March 11, 2015.

Additional physical therapy was prescribed[,] and he was referred to a pain

management specialist.

Severe postoperative pain persisted[,] and [the plaintiff] was diagnosed with failed

back surgery syndrome. Additional surgery was eventually recommended and on

February 21, 2017[,] [the plaintiff] underwent an L4-5 anterior and posterior fusion.

Despite this second surgery, he continued to suffer from intractable lower back and

right leg pain.

[The plaintiff] currently suffers from severe chronic low back and right leg pain.

The pain radiates through the right hamstrings and calf into the foot. This pain is

burning in nature with tightness and spasm.

1 “The PSOB Act, codified as amended at 34 U.S.C. § 10281, et seq., provides for the payment of a one-

time death and disability benefit to families of public safety officers who have died ‘as the direct and

proximate result of a personal injury sustained in the line of duty’ or who have become permanently and

totally disabled as a result of such an injury.” Massone v. U.S. Dep’t of Just., No. 18-CV-4908, 2020

WL 3000416, at *4 (S.D.N.Y. June 4, 2020) (quoting 34 U.S.C. §§ 10281(a), (b)).

(Tr. 213-14.) Dr. Oetgen concluded that the plaintiff was “permanently” and “totally disabled

due to severe pain, limited mobility, and very significant functional limitations.” (Tr. 214.) He

explained that “[d]ue to [the plaintiff’s] very brief sitting tolerance of only 15 minutes[,] it would

be impossible for him to perform even sedentary occupational tasks,” and that “his severe low

back and right leg pain, combined with daily narcotic medications, would adversely affect the

attention and concentration which would be necessary for him to successfully accomplish any

form of work.” (Id.) Upon review of the plaintiff’s records and Dr. Oetgen’s findings, the

PSOB determined on February 1, 2019 that the plaintiff was “permanently and totally disabled”

for the purposes of the PSOB Act.2 (Id.)

On January 4, 2017, the plaintiff applied for DIB, alleging disability since June 8, 2016

from multiple impairments, including the chronic pain in his lower back and right leg. (Tr. 127,

140.) The plaintiff listed the following conditions in his application: lumbar spine derangement,

left knee derangement, melanoma psoriasis, and celiac disease. (Tr. 140.) The Social Security

Administration (“SSA”) denied the plaintiff’s DIB claim on April 10, 2017. (Tr. 58-69.) The

plaintiff requested a hearing before an Administrative Law Judge. (Tr. 70-84.)

Dr. C. Timothy Bessent did not examine the plaintiff, but reviewed his medical records in

February 2019, and completed a physical residual functional capacity assessment. (Tr. 544-52.)

Dr. Bessent opined that during an eight-hour workday, the plaintiff could lift and carry 20

pounds occasionally and 10 pounds frequently; stand or walk for about four hours; sit for about

2 The PSOB Act’s governing regulations provide that: “An individual is permanently disabled only if

there is a degree of medical certainty (given the current state of medicine in the United States) that his

disabled condition—(1) Will progressively deteriorate or remain constant, over his expected lifetime; or

(2) Otherwise has reached maximum medical improvement. . . . An individual is totally disabled only if

there is a degree of medical certainty (given the current state of medicine in the United States) that his

residual functional capacity is such that he cannot perform any gainful work.” (Tr. 215 (quoting 28

C.F.R. § 32.23).)

six hours with periodic alternating positions to relieve pain or discomfort; and occasionally use

right foot controls. (Tr. 546.) Dr. Bessent also confirmed, in answer to a question, that there

were “medical source conclusions about the [plaintiff’s] limitations or restrictions which [were]

significantly different from” his findings. (Tr. 551.) He did not identify the findings from which

his conclusions differed, or explain the reasons for the differences.

On April 30, 2019, Administrative Law Judge Christine Cutter (“the ALJ”) held a video

hearing at which the plaintiff, represented by counsel, testified. (Tr. 26-44.) The plaintiff

testified about the pain in his lower back and right leg, and described the pain he experienced

after sitting for more than 20 minutes: “The radicular pain increases and increases, so my right

glut[e] and my right hamstring, sometimes down in the calf, it just . . . has like a burning

sensation, and it just builds and builds.” (Tr. 35.) He also discussed various treatments,

including surgeries, physical therapy, and medication—but said none of them provided long-

term relief. (Tr. 33-35.)

The plaintiff testified that he and his wife had three young children. The plaintiff’s wife

worked from home four days a week so that she could take care of their youngest child, and the

plaintiff’s mother and mother-in-law also helped with childcare. (Tr. 38.) The plaintiff was not

able to do much in terms of childcare. He read to the children at night, but his wife “takes care

of the children, gets them ready for school, and I just kind of . . . move around, because sitting or

like, I couldn’t really bend down in the morning to like get the kids’ shoes or anything like that,

because I am so stiff.” (Tr. 37.) The plaintiff did “some” household chores, and “tr[ied] not to

leave it all for [his] wife,” but acknowledged that housework “just falls under [his] wife’s

umbrella, unfortunately” because of his back and leg pain. (Tr. 35, 38.) As a result, the

plaintiff’s wife did “dishes and most of the cooking,” as well as the “big food shopping[].” (Id.)

A vocational expert, Whitney Eng, (“the VE”) testified that the plaintiff could do the

following unskilled work: parking lot cashier, storage rental facility clerk and order caller. (Tr.

42.)

In a May 22, 2019 decision, the ALJ determined that the plaintiff was not disabled and

denied his claim for DIB. (Tr. 7-25.) The ALJ found that the plaintiff’s “spine disorder” was a

severe impairment. (Tr. 12.) In her view, however, this impairment did not meet or medically

equal the severity of any impairment listed in the applicable Social Security regulations. (Tr. 13-

14.) The ALJ determined that “the level of impairment alleged by [the plaintiff] [was] not

supported by the evidence of the record:”

Although he experiences some symptoms related to his spine disorder, including

back and right lower extremity pain, the evidence indicates that he retains the ability

to complete a wide range of daily activities, such as attending to his personal needs,

preparing meals, completing household chores, driving a vehicle, and going

shopping. Moreover, the [plaintiff] takes care of his young children, including

getting them ready for daycare in the morning, feeding them, and changing their

diapers.

(Tr. 17.) She gave “great weight” to Dr. Bessent’s assessment, and noted that he “[was]

thoroughly familiar with the [SSA] disability standards and based [his] opinions on a

comprehensive review of the medical evidence of record:”

Dr. Bessent’s assessment is consistent with the evidence, which shows that the

[plaintiff] alleges right-sided back pain radiating into his hip, buttock, and leg;

however, despite these symptoms, physical examinations show that he presents as

alert, oriented, and in no acute distress, and examiners note that he has 5/5 strength,

his gait is within normal limits, and he ambulates effectively and without any

assistive devices. Moreover, the evidence reveals that the [plaintiff] retains the

physical functioning sufficient to complete numerous daily activities, including

taking care of his young children, completing personal care tasks, preparing meals,

completing household chores, driving a vehicle, and going shopping.

(Id.) The ALJ assigned “little weight” to the opinions of Dr. Reilly, Dr. Drucker and Dr. Qureshi

in part because their findings were inconsistent with the plaintiff’s daily activities. (Tr. 17-18.)

In addition, she determined that Dr. Drucker’s examination notes did not support his opinion,

because although Dr. Drucker noted “some paraspinal spasm and tenderness and positive straight

leg on the right” leg, “the remainder of his examination was largely benign,” including the

plaintiff’s range of motion and strength in his left leg. (Tr. 18.) The ALJ also discounted Dr.

Qureshi’s opinion because “it was provided before the [plaintiff’s] alleged onset date,” and “it

appear[ed] to be largely based on the [plaintiff’s] subjective self-report of symptoms and

limitations.” (Id.) The ALJ assigned “little weight” to the PSOB’s disability determination, and

reasoned, “Whether or not the [plaintiff] is disabled is a determination reserved for the

Commissioner. Furthermore, the Department of Justice uses different rules than what the SSA

uses for deciding disability claims, and this finding is not supported by the evidence of record.”

(Id.)

The ALJ found that the plaintiff had “the residual functional capacity to perform light

work as defined in 20 C.F.R. § 404.1567(b)” with certain limitations. (Tr. 14.) In her view, the

plaintiff could, in an eight-hour workday, “stand and/or walk about 4 hours” but “must be able to

change positions to the opposite (stand to sit and vice versa) every hour for 3 to 5 minutes,” and

could “occasionally use right foot controls,” “occasionally climb ramps and stairs, stoop, kneel,

crouch, and crawl; never climb ladders, ropes, and use scaffolds; frequently balance; and never

work at unprotected heights.” (Id.) Finally, based on the VE’s testimony, the ALJ ruled that

although the plaintiff could not perform his past relevant work as a police officer, he could

perform the jobs identified by the VE. (Tr. 19-20.)

On June 10, 2020, the Appeals Council denied the plaintiff’s request for review,

rendering the ALJ’s decision final. (Tr. 1-6.)

STANDARD OF REVIEW

An ALJ employs a five-step sequential process to evaluate whether a claimant meets the

definition of disabled under the Act. See 20 C.F.R. § 404.1520(a)(4):

[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 v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (internal quotation marks and citation

omitted).

The claimant “bears the burden of proving his or her case” at steps one through four of

this framework. Id. at 128 (citing Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)). At step

five, the burden shifts to the Commissioner, who must show that given the claimant’s residual

functional capacity (“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). A court reviewing a Commissioner’s final decision to deny DIB must

“determine[e] whether the SSA’s conclusions were supported by substantial evidence in the

record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d

Cir. 2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)).

Substantial evidence amounts to “more than a mere scintilla” and “means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Greek v. Colvin, 802

F.3d 370, 375 (2d Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If

substantial evidence exists to support the Commissioner’s factual findings, those findings must

be sustained. 42 U.S.C. § 405(g). A district court judge cannot substitute her own judgment for

that of the Commissioner, “even if [she] might justifiably have reached a different result upon de

novo review.” Cerqueira v. Colvin, No. 14-CV-1134, 2015 WL 4656626, at *11 (E.D.N.Y. Aug.

5, 2015) (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).

Although the Commissioner’s factual determinations are binding when they are

supported by substantial evidence, a court will not defer to the Commissioner’s decision

“[w]here an error of law has been made that might have affected the disposition of the case.”

Pollard v. Halter, 377 F.3d 183, 188-⁠89 (2d Cir. 2004) (alteration in original) (quoting Townley

v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Thus, “legal error alone can be enough to

overturn the ALJ’s decision.” Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009).

DISCUSSION

The plaintiff challenges the ALJ’s RFC determination on the ground that she did not give

proper weight to the opinions of his treating physicians—Dr. Reilly, Dr. Drucker and Dr.

Qureshi—and “improperly elevated the opinion of the non-examining medical” consultant, Dr.

Bessent. (ECF No. 10 at 19.) The plaintiff also claims that the ALJ did not give appropriate

consideration to the PSOB’s disability determination. (Id. at 23-25.)

The ALJ’s Determination of the Plaintiff’s RFC

For claims filed before March 27, 2017, the ALJ must apply the “treating physician rule,”

20 C.F.R. § 404.1520c(c)(2), which requires that the ALJ give “controlling weight” to the

medical opinion of a doctor who has “an ongoing treatment relationship” with the plaintiff as

long as 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.” 20

C.F.R. §§ 416.927(a)(2), (c)(2). “[I]f the ALJ decides the opinion is not entitled to controlling

weight, [she] must determine how much weight, if any, to give it.” Estrella v. Berryhill, 925

F.3d 90, 95 (2d Cir. 2019). “In doing so, [the ALJ] must explicitly consider the following,

nonexclusive Burgess factors: (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.” Id. at 95-96

(quotation marks omitted) (quoting McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014)); see

also Burgess, 537 F.3d at 129. “At both steps, the ALJ must give good reasons in [her] notice of

determination or decision for the weight [she] gives the treating source’s medical opinion.”

Estrella, 925 F.3d at 96 (alterations, citation and quotation marks omitted). “An ALJ’s failure to

‘explicitly’ apply the Burgess factors when assigning weight at step two is a procedural error.”

Id. “[A] reviewing court should remand for failure to explicitly consider the Burgess factors

unless a searching review of the record shows that the ALJ has provided ‘good reasons’ for [her]

weight assessment.” Guerra v. Saul, 778 F. App’x 75, 77 (2d Cir. 2019).

“A corollary to the treating physician rule is that the opinion of a non-examining doctor

by itself cannot constitute the contrary substantial evidence required to override the treating

physician’s diagnosis.” Hidalgo v. Bowen, 822 F.2d 294, 297 (2d Cir. 1987) (citation omitted);

see also Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990) (“The general rule is that the

written reports of medical advisors who have not personally examined the claimant deserve little

weight in the overall evaluation of disability. The advisers’ assessment of what other doctors

find is hardly a basis for competent evaluation without a personal examination of the claimant.”

(citation and quotation marks omitted)).

As the Commissioner recognizes, Dr. Qureshi, Dr. Drucker and Dr. Reilly all had treating

relationships with the plaintiff that began in January 2015, November 2016 and December 2016,

respectively.3 (ECF No. 12 at 21.) Therefore, the ALJ was required to determine first whether

the treating physicians’ opinions merited controlling weight. See 20 C.F.R. § 416.927(c)(2).

3 Although the ALJ did not explicitly recognize the doctors as treating physicians, she reviewed and cited

notes that reflected at least a portion of the treating relationships. (See, e.g., Tr. 16 (citing Dr. Drucker’s

treating notes from September 12, 2018 to March 13, 2019).)

The ALJ did not refer to the controlling weight presumption or explain why she did not give the

treating physicians’ opinions controlling weight. (Tr. 17-18.)

Nor did the ALJ address the first, second, and fourth Burgess factors for any of the

treating physicians. She did not mention the frequency, length, nature and extent of the

physicians’ treatment of the plaintiff, the extent to which medical evidence supported their

opinions, or whether they were specialists. See Estrella, 925 F.3d at 96 (highlighting the ALJ’s

failure to consider physician’s treatment of the plaintiff over approximately five years).

While the ALJ discussed whether the treating physicians’ opinions were consistent with

“the record,” she based her decision on Dr. Bessent’s opinion, using it as the yardstick against

which she considered the treating doctors’ findings. She also misread the plaintiff’s testimony

about his daily activities. (Tr. 17.) Because Dr. Bessent did not examine the plaintiff, his

opinion “deserve[s] little weight in the overall evaluation of [the plaintiff’s] disability,” Vargas,

898 F.2d at 295, and “cannot constitute the contrary substantial evidence required to override the

treating physician[s’] diagnosis.” Hidalgo, 822 F.2d at 297.

Moreover, the ALJ’s finding that Dr. Bessent’s opinion was consistent with the plaintiff’s

testimony about his daily activities is premised on a misreading of the testimony. The ALJ wrote

that “the [plaintiff] retains the physical functioning sufficient to complete numerous daily

activities, including taking care of his young children, completing personal care tasks, preparing

meals, completing household chores, driving a vehicle, and going shopping.” (Tr. 17.) In fact,

the plaintiff testified that he read to his children in the evening, but that his back pain prevented

him from helping them get ready for school; his wife took care of their youngest child, with the

help of the plaintiff’s mother and mother-in-law. (Tr. 37-38.) The plaintiff also testified that he

“tr[ied] not to leave [household chores] all for [his] wife,” but that chores nevertheless “just [fell]

under [his] wife’s umbrella.” (Tr. 35, 38.) He did not prepare meals, except for making a

sandwich or reheating food in the microwave; his wife did the cooking and dishes. (Tr. 37.) She

also did the bulk of the grocery shopping; the plaintiff shopped only occasionally—“a simple,

quick, in-and-out-type thing.” (Tr. 38.) In short, the plaintiff made it clear that his contributions

to housework and childcare were limited because of his back and leg pain.4

Citing the Second Circuit’s summary decision in Guerra, the Commissioner argues that

the ALJ provided “good reasons” for her assessment. (ECF No. 12 at 21.) The ALJ in Guerra,

however, gave far more extensive reasons for his conclusion. Guerra 778 F. App’x at 76. For

example, he explained that he assigned the treating physician’s opinions less than controlling

weight because “they were only conclusory; they stated contradictory things; they ran contrary to

the treatment records; they ran contrary to Guerra’s testimony; and they were vague, of

unspecified duration, and conditioned on scheduled surgical procedures.” Id. The Second

Circuit also noted that the ALJ’s determination was “[s]upported by ample treatment notes,

physical examination findings, and Guerra’s testimony.” Id. In this case, however, the ALJ

4 Even if the plaintiff could have done the things the ALJ described—childcare, housework and the like—

it would not be sufficient to reject the treating physicians’ opinions. “Indeed, it is well-settled that the

performance of basic daily activities does not necessarily contradict allegations of disability, ‘as people

should not be penalized for enduring the pain of their disability in order to care for themselves.’”

Cabibi v. Colvin, 50 F. Supp. 3d 213, 238 (E.D.N.Y. 2014) (quoting Woodford v. Apfel, 93 F. Supp. 2d

521, 529 (S.D.N.Y. 2000)) (collecting cases); see also Mahon v. Colvin, No. 15-CV-2641, 2017 WL

1232471, at *15 (E.D.N.Y. Mar. 31, 2017) (“Yet, this heavy reliance on Plaintiff’s reported daily

activities of self-care, child-care, and hobbies does not provide a sufficient basis for discounting almost

entirely the well-supported expert testimony of licensed psychiatrists and psychologists regarding

Plaintiff’s ability to sustain a job.” (emphasis in original)); Nusraty v. Colvin, 213 F. Supp. 3d 425, 440

(E.D.N.Y. 2016) (“Because ‘a claimant need not be an invalid to be found disabled,’ Plaintiff’s reports

of her daily activities by themselves are not substantial evidence that she was not disabled and are

insufficient to justify according [the treating physician’s] opinion limited weight.” (quoting Balsamo v.

Chater, 142 F.3d 75, 81 (2d Cir. 1998)); id. (“[W]hen a disabled person gamely chooses to endure pain

in order to pursue important goals . . . it would be a shame to hold this endurance against him.”

(alterations in original) (quoting Balsamo, 142 F.3d at 81)).

rejected the conclusions of three treating doctors, and relied instead on a non-examining

physician’s opinion and a misreading of the plaintiff’s testimony about his daily activities.5

Remand is required so that the ALJ can re-evaluate the medical record and apply the

Burgess factors.

The Public Safety Officers’ Benefits Office Determination

The plaintiff argues that “[t]he ALJ also improperly dismissed the February 1, 2019

report by the [DOJ] finding [him] permanently and totally disabled under the [PSOB’s] rules.”6

(ECF No. 10 at 23.) The Commissioner contends that “the ALJ properly considered the PSOB

determination but gave it little weight as the determination of disability under the Social Security

Act is reserved to the Commissioner.” (ECF No. 12 at 23.)

“While the determination of another governmental agency that a social security disability

benefits claimant is disabled is not binding on the [Commissioner], it is entitled to some weight

and should be considered.” Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975). In

5 The ALJ also discounted Dr. Drucker’s opinion because it was “not supported by . . . his own

examination notes.” (Tr. 18.) While the ALJ acknowledged that Dr. Drucker noted “paraspinal spasm

and tenderness and positive straight leg raise on the right [leg] at 60 degrees,” she determined that “the

remainder of [Dr. Drucker’s] examination [was] largely benign” because he also noted the plaintiff’s

range of motion and strength in his leg. (Id.) These notes do not address the plaintiff’s reported chronic

pain in his back and leg, and are not inconsistent with Dr. Drucker’s opinion.

In addition, the ALJ discounted Dr. Qureshi’s opinion in part because “it was provided before the

[plaintiff’s] alleged onset date.” (Tr. 18.) “Although the timing of a treating physician’s report is

plainly relevant to the ALJ’s determination of the weight, if any, to give it, a treating physician’s

opinion need not be rejected solely because it predates the relevant time period.” Mura v. Colvin, No.

16-CV-6159, 2017 WL 2543939, at *5 (W.D.N.Y. June 13, 2017); see also Garcia Medina v. Comm’r

of Soc. Sec., No. 17-CV-6793, 2019 WL 1230081, at *2 (W.D.N.Y. Mar. 15, 2019) (“While the ALJ

may have had sound arguments to discredit some of these opinions . . . because they . . . came before the

alleged onset date[,] they were relevant at the very least and she should have at least addressed them.”)

(collecting cases).

6 The SSA published revised regulations stating that for claims filed after March 27, 2017, an ALJ need

not address in her determination “a decision made by any other governmental agency or a

nongovernmental entity about whether [a claimant] [is] disabled, blind, employable, or entitled to any

benefits.” 20 C.F.R. §§ 404.1504, 416.904. As the plaintiff points out, the new regulations do not apply

here as he filed his claim on January 4, 2017, before the changes took effect. (ECF No. 10 at 23 n.3.)

assigning the PSOB determination “little weight,” the ALJ reasoned that “[w]hether or not the

[plaintiff] is disabled is a determination reserved for the Commissioner;” she also observed that

“the Department of Justice uses different rules than what the SSA uses for deciding disability

claims,” and that its “finding is not supported by the evidence of record.” (Tr. 18.) As explained

above, the ALJ’s conclusion about the evidence and her reliance on a non-examining doctor’s

opinion were errors. Her additional points—that the DOJ applies different rules, and that

determining disability is for the Commissioner—are not bases to discount the PSOB’s

determination. See Best v. Comm’r of Soc. Sec., No. 18-CV-5751, 2020 WL 1550251, at *4

(E.D.N.Y. Mar. 31, 2020) (finding that the ALJ improperly discounted findings by the

Department of Veterans Affairs (“VA”) because “[i]nstead of . . . explaining why the [VA’s]

disability determination was not entitled to significant weight, the ALJ went on to state only that

‘[w]hether a claimant is “disabled” or unable to work is a legal issue reserved exclusively to the

Commissioner to decide. In addition, the VA uses different rules, regulations, and guidelines to

determine disability benefits under their system than Social Security’”).

Moreover, the PSOB found that the plaintiff was disabled and unable to work because of

both his chronic pain and his related dependence on pain medication. (Tr. 214.) However, “[t]he

ALJ did not even attempt to summarize the [PSOB’s] findings, or to apply such findings in the

context of [the plaintiff’s] application for benefits under the Social Security Act.” Best, 2020

WL 1550251, at *4 (first alteration in original) (citation omitted). This was plain error. See, e.g.

Longbardi v. Astrue, No. 07-CV-5952, 2009 WL 50140, at *22 (S.D.N.Y. Jan. 7, 2009) (“Courts

in this Circuit have long held that an ALJ’s failure to acknowledge relevant evidence or explain

its implicit rejection is plain error.” (internal quotation marks omitted)).

Remand is required so that the ALJ can consider the PSOB’s disability determination, or

explain why the determination warrants little weight.7 See Best, 2020 WL 1550251, at *5.

CONCLUSION

The plaintiff’s motion for judgment on the pleadings is granted and the Commissioner’s

motion is denied. The case is remanded for further proceedings consistent with this opinion.

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

March 25, 2022

7 The plaintiff also argues that the ALJ should have explicitly considered his use of a pain medication,

Dilaudid. (ECF No. 10 at 25-26.) The ALJ considered the plaintiff’s subjective statements about pain

and his use of pain medication generally (ECF No. 8 at 21), and the plaintiff cites no authority for the

proposition that an ALJ errs if she does not specifically name more potent types of medication.