Mortellaro v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GEORGETTE MORTELLARO,

Plaintiff, MEMORANDUM & ORDER

19-CV-4868(JS)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: Howard D. Olinsky, Esq.

Olinsky Law Group

250 South Clinton Street, Suite 210

Syracuse, New York 13202

For Defendant: Mary M. Dickman, Esq.

United States Attorney’s Office

610 Federal Plaza, 5th Floor

Central Islip, New York 11722

SEYBERT, District Judge:

Georgette Mortellaro (“Plaintiff”) brings this action

pursuant to Section 205(g) of the Social Security Act (the “Act”),

42 U.S.C. § 405(g), challenging the denial of her application for

Social Security Disability Insurance Benefits by the Commissioner

of Social Security (the “Commissioner”). (See generally Compl.,

ECF No. 1.) Presently pending before the Court are the parties’

cross-motions for judgment on the pleadings. For the following

reasons, Plaintiff’s motion (Pl. Mot., ECF No. 8) is GRANTED, and

the Commissioner’s motion (Comm’r Mot, ECF No. 13) is DENIED.

BACKGROUND1

I. Procedural History

On December 15, 2015, Plaintiff completed an application

for disability insurance benefits (“DIB”), alleging disability as

of July 13, 2015, due to neck and back pain, as well as carpal

tunnel syndrome. (R. 54.) After Plaintiff’s claim was denied on

February 5, 2016, she requested a hearing before an Administrative

Law Judge (“ALJ”). (R. 67, 79-80.) On May 3, 2018, Plaintiff,

accompanied by counsel, appeared for a hearing before ALJ David J.

Begley (the “Hearing”). (R. 11-21.) Suman Srinivasan, a

vocational expert (“VE”), also testified at the Hearing. (R. 11,

47-51.)

In a decision dated July 30, 2018, the ALJ found that

Plaintiff was not disabled. (R. 21.) On June 25, 2019, the Social

Security Administration’s Appeals Council denied Plaintiff’s

request for review, and the ALJ’s decision became the final

decision of the Commissioner. (R. 1-7.)

Plaintiff initiated the instant action on August 26,

2019 (see Compl.) and moved for judgment on the pleadings on

1 The background is derived from the administrative record filed

by the Commissioner on December 9, 2019. (See ECF No. 7.) For

purposes of this Memorandum and Order, familiarity with the

administrative record is presumed. The Court’s discussion of the

evidence is limited to the challenges and responses raised in the

parties’ briefs. Hereafter, the administrative record will be

denoted “R.”.

February 7, 2020 (Pl. Mot.; Pl. Support Memo, ECF No. 8-1). After

receiving several extensions of time to do so, the Commissioner

filed a cross-motion for judgment on the pleadings on September 3,

2020. (Comm’r Mot., ECF No. 13; Comm’r Support Memo, ECF No. 13-

1.) Plaintiff and the Commissioner filed their reply briefs on

September 24, 2020 and November 6, 2020, respectively. (Pl. Reply,

ECF No. 14; Comm’r Reply, ECF No. 17.)

II. Evidence Presented to the ALJ

The Court first summarizes Plaintiff’s testimonial

evidence and employment history before turning to Plaintiff’s

medical records and the vocational expert’s testimony.

A. Testimonial Evidence and Employment History

At the time of the Hearing, Plaintiff was forty-four

years old. (R. 35.) She completed trade school where she learned

bookkeeping. (R. 38.) She is right-handed, five feet and ten

inches tall, and 220 pounds. (R. 35.) Plaintiff testified that

she had been unable to work since July 13, 2015 due to a work-

related incident. (R. 36.) At the time of the accident, she was

an independent real estate agent but primarily appraised houses

rather than conducting sales. (R. 36.) After the accident,

Plaintiff did not try to find any work. (R. 36-37.) She testified

that she is “useless” and unable to work because she cannot type,

sit, or stand for long periods of time and gets daily headaches.

She has been getting headaches since 2013, at which time she was

involved in her first car accident. (R. 37, 44.) Her neck gives

her the most pain and during a flare-up, her neck throbs and the

pain travels into her head, arms, and tingles in her fingers.

(R. 43.) These flare-ups can occur when Plaintiff does not have

support on her neck and when the weather is cold or rainy. (R. 44.)

She had a cervical fusion for her neck in April 2017; however the

pain worsened. (R. 44.) Plaintiff testified that “there is

nothing [her physicians] can do” for her at this point except for

pain management. (R. 44.) She uses a heating pad and takes

medication, which provides her some relief. (R. 44-45.) She is

most comfortable lying down and typically rests on her couch which

supports her neck and has an ottoman. (R. 45.)

Plaintiff is married with a teenage daughter and the

family lives in a ranch-style home with two dogs. (R. 37-38.)

Plaintiff has a driver’s license but indicated that she only drives

to pick up her medication; her husband drove her to the Hearing.

(R. 38.) She avoids driving because “[she’s] done” if she “mov[es]

[her] head and if someone jerks or brakes.” (R. 38.) She also

does not have any income; her husband is the provider, including

health insurance. (R. 39.) Plaintiff regularly sees a pain

management physician, a neurologist, and her primary care

provider, Dr. Brown. (R. 39-40.) The medication Plaintiff takes

causes drowsiness, blurred vision, and hives.

On a typical day, Plaintiff wakes up, makes a cup of

coffee, then takes ibuprofen, allergy medicine, and medicine for

her stomach. (R. 40.) She then sits on the couch, puts a heating

pad on her neck and back, and watches the news. (R. 40.) She

does “physical therapy at home, exercise[s],” and then takes her

pain medication, at which point she falls asleep. (R. 40.) After

she wakes up, she sits on the couch and uses a heating pad again,

then “tr[ies] to do some things around the house.” (R. 40-41.)

She is unable to do essentially all of the chores she used to

perform and cannot clean the house, bathroom or dishes. (R. 41.)

She can only do “things that are . . . hand level,” such as wiping

the countertops. (R. 41.) Her husband or daughter do the grocery

shopping. (R 41.) Plaintiff’s daughter also does the laundry,

something Plaintiff has not been able to do since 2015. (R. 41.)

After chores, Plaintiff then goes back to the couch, uses the

heating pad, takes another pain medication, and falls back to

sleep. (R. 41-42.) Her naps during the day last approximately

two hours and cause her to wake up at 3:00 a.m., at which time she

begins her day. (R. 41-42.) She also has difficulty sleeping at

night because of her nerves and neck. (R. 42.)

Plaintiff is able to bathe herself and has a computer at

home, which she uses only to check email. (R. 41.) To occupy her

time during the day, she listens to music and watches television.

(R. 42.) She does not belong to any groups, clubs, or

organizations and does not attend religious services or volunteer

anywhere. (R. 42.) Her friends and sister travel to her house to

visit. (R. 43.) Plaintiff did take a vacation to Florida in

February 2018 and traveled there via plane. (R. 43.) She stated

that she had to “drug [herself] up” for the trip. (R. 43.) She

smokes one pack of cigarettes over a three-day period and sometimes

drinks. (R. 43.) As to her limitations, Plaintiff can only sit

and stand for 10 to 20 minutes on a good day or 5 to 10 minutes on

a bad day. (R. 45-46.) She can walk about two blocks and lift

less than five pounds. (R. 45-46.) If she lifts weight any

heavier than that, she strains her neck and it begins to throb.

(R. 46.) She also has problems using her hands and fingers, with

more issues on her left side which were caused by carpal tunnel

and her neck. (R. 46.) She cannot type because her hand cramps

up rendering her unable to move her fingers. (R. 46.) This also

causes her to be unable to go to the bathroom at times. (R. 46.)

B. Medical Evidence

Plaintiff was involved in an automobile accident in

April 2013. (R. 36, 300.) She experienced mild and aching neck

and back pain as a result of the collision and sought treatment

from several physicians at Orlin & Cohen Orthopedic Associates

(“Orlin & Cohen”). (R. 412.) She presented to Dr. Joseph A.

Cardinale, M.D., an orthopedist and pain management specialist, on

January 23, 2014, who diagnosed cervicalgia, cervical

radiculopathy, lumbar radiculopathy, and lumbago. (R. 289.) Dr.

Cardinale also referred Plaintiff to a spinal surgeon, Dr. Michael

B. Shapiro, M.D., whom she saw on February 17, 2014. (R. 289-92.)

Dr. Shapiro also assessed Plaintiff with lumbago and cervical

radiculopathy, and sent Plaintiff for an MRI to evaluate possible

surgery. (R. 292.) The MRI was conducted on February 19, 2014

and showed a focal posterior disc herniation indenting the thecal

sac, without impingement, at C3-C4; a broad-based disc bulge,

slightly flattening the ventral subarachnoid space, at C4-C5; and

central disc herniation indenting the thecal sac, without

compression, at C5-C6. (R. 335.) Upon his review of the MRI

results, Dr. Shapiro diagnosed cervicalgia and cervical

radiculopathy. (R. 294.) He discussed conservative care,

injection therapy, and even surgical intervention should the

conservative care be unsuccessful. (R. 294.) On March 3, 2014,

Plaintiff met with a third physician from Orlin & Cohen, Dr.

Bennett H. Brown. (R. 275.) Dr. Brown diagnosed Plaintiff with

bilateral carpal tunnel syndrome, gave Plaintiff injections to

treat the carpal tunnel, and told Plaintiff to use NSAIDs as

needed.2 (R. 275.) Plaintiff followed up with Dr. Brown on May

2, 2014, at which time she received an additional round of

injections for her carpal tunnel. (R. 279.) Then, Plaintiff saw

2 “NSAID” is a commonly used acronym for “non-steroidal anti-

inflammatory drugs.”

Dr. Alfred F. Faust, M.D., on May 8, 2014, who determined that

Plaintiff had a herniated disc at C5-C6 that was in contact with

her spinal cord and triggered hand forearm dysesthesias. (R. 209.)

He assessed a herniated cervical intervertebral disc and advised

Plaintiff to consider a disc replacement. (R. 209.)

In March 2015, Plaintiff treated with Theresa Gentile,

a Physician’s Assistant (“PA”) in Dr. Cardinale’s practice. (R.

314.) Plaintiff complained of neck and back pain that radiated

into her right arm. (R. 314.) PA Gentile assessed Plaintiff with

cervical radiculopathy and cervicalgia, and administered a

cervical epidural steroid injection, as well as a trigger point

injection. (R. 316.) Plaintiff returned to Dr. Brown on July 10,

2015 due to cramping and paresthesias to her hands, accompanied by

neck pain and cramping in her upper arms; however, she indicated

“some improvement” to her condition following the epidural steroid

injection. (R. 281.) After assessing cervical radiculopathy and

carpal tunnel syndrome, Dr. Brown administered a carpal tunnel

injection. (R. 283-84.)

Three days later, on July 13, 2015, Plaintiff was

involved in another motor vehicle accident, during which the

airbags deployed. (R. 239.) She presented to North Shore-LIJ

Hospital with neck tenderness, abdominal pain on her right side,

and pain in her back, right shoulder, right lower leg, and left

wrist. (R. 239.) She denied any extremity weakness. (R. 239.)

Upon examination, she had tenderness in the right upper and lower

quadrants of her abdomen as well as her lumbar and cervical spine.

(R. 241-42.) She was fitted with a neck collar, prescribed

Percocet, and discharged. (R. 241-42.)

The following day, Plaintiff saw Dr. Scott Silverberg,

M.D., an orthopedist from the Central Orthopedic Group LLP, on “an

emergency basis” for a neck and back evaluation. (R. 366.) Dr.

Silverberg noted Plaintiff’s herniated disc, as well as her

epidural treatments. (R. 366.) He also indicated that Plaintiff

“did not like the treatment she was getting [at Orlin & Cohen].”

(R. 366.) After examining Plaintiff, Dr. Silverberg assessed

Plaintiff with cervical and lumbar sprains with radiculitis. (R.

367.) He indicated that Plaintiff “ha[d] gotten quite symptomatic

in the neck again,” and referred her for an MRI and physical

therapy. (R. 367.) Plaintiff returned to Dr. Silverberg on July

27, 2015 with significant pain and throbbing in her neck which

travelled to her head. (R. 364.) Dr. Silverberg determined that

Plaintiff had a whiplash injury that was exacerbating her neck

pathology, prescribed her Tramadol, and referred her to Dr.

Fernando Checo, M.D., for an evaluation of her cervical spine, as

well as physical therapy. (R. 364-65.)

Plaintiff’s next appointment was with Dr. Cardinale on

July 28, 2015 for a “routine follow-up.” (R. 322.) Plaintiff

complained of low back, neck, and head pain that she rated a ten

out of ten in intensity. (R. 322.) Her pain radiated to her left

leg and right arm which was exacerbated with sitting, standing,

twisting, walking, bending forward, and extending backwards. (R.

322.) Dr. Cardinale assessed cervical radiculopathy, herniated

cervical intervertebral disc, cervicalgia and myalgia, and

administered trigger point injections. (R. 323.) Plaintiff then

returned to Dr. Brown two days later, at which point she complained

of cramping and paresthesias to her hands that was always

accompanied by neck pain and cramping in her upper arms. (R. 285.)

Dr. Brown recommended that Plaintiff undergo carpal tunnel release

surgery, with the right-side to be performed prior to the left.

(R. 287.)

Plaintiff then sought treatment from Dr. Checo on

August 13, 2015 and chiefly complained of neck pain, which was

excruciating and causing her headaches. (R. 362.) Upon examining

Plaintiff, Dr. Checo found Plaintiff to have cervical spondylosis

and a cervical neck sprain. (R. 363.) He recommended that

Plaintiff go to physical therapy, referred her to Dr. Seema V.

Nambiar, M.D., and advised her to continue using Mobic anti-

inflammatory medication as well as muscle relaxers. (R. 363.) He

also stated that Plaintiff was to “refrain from any heavy lifting,

bending, twisting, or strenuous activities” and gave her a note

for work. (R. 363.) Plaintiff saw Dr. Nambiar on August 25, 2015

for a comprehensive evaluation and pain management options.

(R. 359.) Plaintiff complained of persistent pain in the neck

that radiated into her arms, numbness in her fingers, pain in her

legs, as well as headaches and blurry vision. (R. 359.) After

examining Plaintiff, Dr. Nambiar assessed cervicalgia, cervical

disc disease, cervical radiculitis, lumbago, lumbar sprain, and

leg pain. (R. 360.) She sent Plaintiff for a lumbar spine MRI,

prescribed Medrol Dosepak to reduce pain and inflammation in her

neck as well as Cambia for headaches, and asked Plaintiff to resume

massage therapy. (R. 360.) Dr. Nambiar also referred Plaintiff

to a neurologist for a concussion and persistent headaches.

(R 360.)

On September 21, 2015, Plaintiff was examined by Dr. B.

Rao Yadlapalli, M.D., a neurologist. (R. 375.) Dr. Yadlapalli

reported that Plaintiff had a slight impairment of nerve sensation

in both of her hands, mildly restricted cervical and lumbrosacal

movements, some paraspinal muscle spasm in the cervical and

lumbrosacral area, mild disc degenerative changes in the

lumbrosacral spine, and lumbrosacral sprain. (R. 376.) He advised

Plaintiff to have EMG/nerve conduction studies, to continue with

her Tramadol and Flexeril prescriptions, use a wrist splint, take

B vitamins, and to continue physical therapy with massage.

(R. 376.)

Plaintiff returned to Dr. Cardinale on September 30 and

October 28, 2015. (R. 328, 332.) During the September visit,

Plaintiff complained of radiating neck and back pain, which she

rated as an eight out of ten. She also indicated that the

medication and injection therapy alleviated her pain, which was

exacerbated upon physical activity and interfered with her ability

to perform household chores. (R. 328.) After finding that

Plaintiff had decreased range of motion in her neck and back, Dr.

Cardinale assessed Plaintiff with lumbar radiculopathy,

cervicalgia, and chronic migraines. (R. 330.) He recommended that

Plaintiff remain on her current medication and administered a

cervical epidural steroid injection. (R. 331.) Then, during the

October visit, Plaintiff rated her neck and low back pain a seven

out of ten. (R. 332.) Dr. Cardinale’s findings were largely

similar to his findings from September. He did, however, note

that Plaintiff reported “little long lasting relief from

injections” and discussed spinal cord stimulation (“SCS”) and

surgery with her. (R. 334.)

Plaintiff then followed up with Dr. Checo in November

2015 and maintained her complaint of pain in her neck, back, and

arm, as well as pain that radiated down both of her legs. (R. 355.)

Dr. Checo assessed cervical and lumbar spondylosis, radiculopathy,

and muscle sprains. (R. 356.) He ordered physical therapy and

anti-inflammatory medication, and told Plaintiff to get an

electromyography (“EMG”) test. (R. 356.) Plaintiff saw him again

in December 2015 when he reviewed the results of Plaintiff’s EMG,

which was negative. (R. 352.) At that time, Dr. Checo also

administered trigger point injections in Plaintiff’s cervical and

lumbar spines. (R. 353.) Plaintiff did not return to Dr. Checo

until February 2016, at which time she still complained of neck

and back pain. (R. 416.) He reviewed a recent MRI of Plaintiff’s

which showed central extruded disc C4-6, lumbar lordosis loss, and

disc bulge at L4-5. (R. 417.) Dr. Checo also referred Plaintiff

to Dr. Vandana K. Soni, M.D., for a neurological workup. (R. 417.)

Prior to seeing Dr. Soni, Plaintiff saw P.A. Jessica

Bianculli in March 2016 for an evaluation of her left lower

extremity dysesthesias, neck pain, and left upper extremity

dysesthesias. (R. 442.) Plaintiff told P.A. Bianculli that, in

addition to neck pain, she had pain in her left upper arm and

numbness in her hands. (R. 442.) Plaintiff denied radicular pain,

weakness in the bilateral upper extremities, difficulty with fine

motor movements, and difficulty dropping things. (R. 442.) P.A.

Bianculli assessed lumbar degenerative disc disease, left

sacroiliac strain, and inflammatory radiculitis. (R. 444.) She

recommended activity modifications and a CT scan of Plaintiff’s

cervical spine, and referred her to a rheumatologist. (R. 444.)

Plaintiff then saw Dr. Soni in April 2016 for an initial

neurological evaluation, primarily concerning Plaintiff’s

increasing headaches which were occurring on a near-daily basis

and not being alleviated with over-the-counter medication. (R.

520.) Dr. Soni also noted Plaintiff’s complaints of radiating

neck and lower back pain. (R. 520.) Dr. Soni performed a “mini-

mental status examination” that revealed that Plaintiff had mild

attention deficit, secondary to chronic pain and probable

medication use. (R. 521.) Then, upon physical examination, Dr.

Soni found that Plaintiff had decreased range of motion of

bilateral shoulders with limited overhead abduction, and guarding

of bilateral deltoids, bilateral quadriceps, and left hamstring

muscles. (R. 521.) Dr. Soni then suggested that Plaintiff undergo

an MRI, discontinue Motrin, take Mobic and Lidoderm, and continue

physical therapy. (R. 521.) Plaintiff, however, did not want to

go to physical therapy because it was not covered by insurance.

(R. 522.)

Dr. Andrew J. Porges, M.D., a rheumatologist, performed

an initial consultation on April 22, 2016. (R. 418.) He noted

that Plaintiff had marked decreased range of motion in her lumbar

spine and shoulders, as well as tender points in her elbow and

shoulders that were not “dramatic.” (R. 420-21.) Dr. Porges

assessed fibromyalgia and sent Plaintiff for bloodwork. (R. 421-

22.) Several days later, Plaintiff returned to P.A. Bianculli,

who noted that Plaintiff’s symptoms persisted despite activity

modifications, modalities, and anti-inflammatories. (R. 445.)

P.A. Bianculli administered a left sacroiliac joint injection. (R.

447.)

In May 2016, Plaintiff treated with P.A. Gentile for a

routine follow-up, who assessed cervicalgia and cervical

radiculopathy. (R. 430-31.) She then saw Dr. Cardinale on May

17, 2016 and was given a cervical epidural steroid injection.

(R. 433.) During a follow-up with Dr. Cardinale in June 2016,

Plaintiff rated her pain an eight out of ten. (R. 435.) His

assessment varied from P.A. Gentile’s to the extent that Dr.

Cardinale also noted that Plaintiff had chronic migraines and that

Plaintiff reported 75% relief from radicular pain after receiving

an injection. (R. 437.) To help her migraines, Dr. Cardinale

prescribed Botox injections. (R. 437.)

Plaintiff then presented to Dr. Ramin Rak, M.D., for a

neurosurgical opinion regarding her lumbar and cervical disc

disease. (R. 470.) Dr. Rak noted that Plaintiff tried multiple

conservative pain management routes but her symptoms continued to

worsen and significantly affect her life. (R. 470.) More

specifically, he indicated that Plaintiff had difficulty sitting

in the examination chair, walking, sleeping, and taking care of

her daughter. (R. 470.) After examining Plaintiff, Dr. Rak opined

that Plaintiff needed surgical intervention and would benefit most

likely from a posterior lumbar interbody fusion and decompression

and instrumentation at L4-5. (R. 471.) He ordered updated MRIs

of Plaintiff’s cervical and lumbar spine, reviewed the findings

with Plaintiff, and discussed surgery with her, to which Plaintiff

agreed. (R. 472.) Dr. Rak performed surgery on September 12,

2016 and Plaintiff underwent a lumbar laminotomy decompression,

L4-5 discectomy, and L4-5 interbody fusion with spinal

instrumentation, autograft, and allograft fusion. (R. 460.)

During a post-operative follow-up on September 22, 2016,

Plaintiff reported improvement in her leg pain but complained of

incisional back pain. (R. 463.) She also had neck and arm pain

as well as numbness in her hands. (R. 463.) Plaintiff was

ambulating with a walker for safety but denied any weakness,

numbness, or tingling. (R. 463.) Several weeks later in October

2016, Plaintiff had another post-operative visit with Dr. Rak, who

indicated that Plaintiff “look[ed] great and . . . ha[d] recovered

very well from the operation.” (R. 463.) For safety, Plaintiff

was using a cane for ambulation and was grossly nonfocal. (R.

464.) Her incision was completely healed and she was not

experiencing any weakness or numbness; however, Plaintiff still

complained of occasional pain down the left leg. (R. 464.) Dr.

Rak advised Plaintiff to wear a back brace for a total of eight

weeks following her operation and indicated he would see her again

in December.

In the interim, on October 27, 2016, Plaintiff saw Dr.

Cardinale. (R. 500.) She reported neck pain at an eight out of

ten and radiating pain in both of her arms. (R. 500.) Upon

examination, Plaintiff exhibited spasms and tenderness of the left

paracervical muscles, and diminished range of motion of the

cervical spine in all planes. (R. 501.) Dr. Cardinale ordered

repeat cervical epidural steroid injections. (R. 502.) When

Plaintiff returned for a follow-up with Dr. Rak in December 2016,

she reported that she “feels better and better every day and she

is continu[ing] with physiotherapy as outpatient.” She was

experiencing some tingling in her buttocks and in her toes, which

Dr. Rak indicated is expected at this stage post-operation. (R.

478.) In addition, Dr. Rak noted Plaintiff’s cervical spine issues

and the fact that they planned to address those issues after

Plaintiff recovered from the lumbar surgery. (R. 478.) Plaintiff

complained of neck pain, headaches, shoulder pain, and tingling

and numbness down her arms. (R. 478.) Thus, Dr. Rak advised

Plaintiff to avoid heavy lifting, pulling, or pushing and indicated

they would discuss how to manage her cervical spine issues during

their next follow-up, which was in February 2017. (R. 466, 478.)

At that follow-up, Dr. Rak reviewed a new MRI scan of Plaintiff’s

cervical spine because her neck pain, headaches, tingling, and

numbness were worsening and significantly affecting her life. (R.

466.) Her symptoms of radiculopathy on the bilateral upper

extremities were moderate to severe, with worse pain on the left

side. (R. 466.) Plaintiff was unable to perform daily routine

activities or even take care of herself, including her hygiene.

(R. 466.) A review of the new MRI scan showed worsening of

Plaintiff’s degenerative disc disease at C4-5 and C5-6, with

reversal of normal lordosis as well as spinal canal stenosis and

foraminal stenosis. As such, Dr. Rak recommended surgery since

Plaintiff exhausted all conservative courses of treatment. (R.

466.)

On March 21, 2017, Dr. Rak performed an anterior cervical

discectomy at C4-5 and C5-6, anterior cervical fusion at the same

levels with autograft an allograft, and anterior cervical plating

instrumentation from C4 to C6. (R. 467.) During a post-operative

follow-up on March 30, 2017, Plaintiff reported lessening of her

neck pain, headaches, tingling and numbness. (R. 483.) She

experienced neck muscle spasms only at night while wearing a

cervical collar. (R. 483.) Her incision healed and Dr. Rak

observed improvements in neurological radiculopathy of both upper

extremities and hands, as well as full range of motion of the neck.

(R. 483.) Dr. Rak instructed Plaintiff to wear a soft neck collar

at night, to discontinue oxycodone but to continue ibuprofen and

Flexeril, and to start physical therapy. (R. 483.) Plaintiff

returned to Dr. Rak on April 6 and 27, 2017, and reported that she

was doing well. (R. 484-85.) She denied neck pain, numbness,

tingling, and weakness during both visits. (R. 484-85.)

Over the following months, Plaintiffs’ symptoms

returned. In May 2017, Plaintiff visited with Dr. Cardinale and

complained of pain in her lower back that radiated into the left

arm and leg. (R. 496.) Upon examination, Dr. Cardinale found

that Plaintiff’s neck and back had diminished range of motion in

all planes. (R. 497.) He assessed chronic migraines, cervicalgia,

lumbago, and myalgia. (R. 497.) He prescribed Tramadol and

Skelaxin, administered a Botox injection to treat Plaintiff’s

migraines, and recommended that Plaintiff continue home exercises

and physical therapy. (R. 498.) Dr. Cardinale assessed migraines

again on June 9, 2017, administered another Botox injection, and

prescribed Duexis. (R. 494-95.)

On June 19, 2017, Plaintiff treated with Dr. Porges, to

whom she complained that her entire body hurt, that she could

barely walk in the morning, and that she could not sleep. (R.

535.) On examination, she had no tenderness, swelling, or

synovitis of the hands or fingers. (R. 538.) She had full range

of motion in her wrists, shoulders, hips, and ankles but had

tenderness in both knees. (R. 537-38.) Dr. Porges assessed

fibromyalgia with diffuse pain syndrome, and prescribed a trial of

Elavil, as well as Motrin. (R. 541.)

Plaintiff returned to Dr. Rak’s office on June 29, 2017,

and was examined by his P.A., Jinali Zaveri. (R. 486.) Plaintiff

complained of a mild headache, throbbing back pain, and toe

numbness; however, she was able to maintain her daily routine.

(R. 486.) P.A. Zaveri noted that Plaintiff was “doing well” after

the operation with Dr. Rak and that she would follow-up with him

after having new MRIs taken. (R. 486.) Plaintiff then saw Dr.

Rak in August 2017 who stated that her new MRI studies showed

“complete decompression at the surgical site[s] on the cervical

spine as well as lumbar spine.” (R. 487.) Dr. Rak also reported

that “there are good alignments and nerve decompressions and spinal

cord compressions at the surgical levels.” (R. 487.) He noted

that Plaintiff had occasional tingling in her fingers, headaches,

and blurry vision, which Dr. Rak attributed to Plaintiff’s

migraines. (R. 487.) As such, he referred Plaintiff to a

neurologist but noted that he is otherwise “pleased with her

outcome and recovery.” (R. 487.)

Plaintiff then saw Dr. Cardinale on September 27, 2017

and reported a seven out of ten pain level in her low back, neck,

and head; the pain was radiating into both arms and her left leg.

(R. 488.) After examining Plaintiff, Dr. Cardinale noted that

she had bilateral trapezial and paracervical spasms, diminished

range of motion in her neck, and a positive left Spurling test.

(R. 489.) He assessed myalgia, prescribed Skelaxin, Zanaflex,

Gabapentin and Duexis, and administered a trigger point injection

at C7-T1. (R. 490-92.)

On October 23, 2017, Plaintiff returned to her

neurologist, Dr. Soni. (R. 519.) Dr. Soni found that Plaintiff

was guarding her cervical paraspinal muscle, rated her power as a

4 out of 5, and noted that Plaintiff had normal gait. (R. 519.)

She diagnosed Plaintiff with cervical radiculopathy and headaches,

prescribed Tizandine, and recommended that Plaintiff continue

using Botox for pain management. (R. 519.)

In November 2017, Plaintiff visited with Dr. Porges and

complained of ongoing diffuse pain, pain and tenderness all over

her body, and depression. (R. 542.) Plaintiff also felt that

she was poorly responding to multiple medications. (R. 542.) In

his examination, Dr. Porges found that Plaintiff had tenderness in

her spine, was flushed and tearful, and had full range of motion

in her wrists, shoulders, hips, and ankles. (R. 544.) He assessed

fibromyalgia and prescribed Tramadol and Elavil. (R. 548.)

Plaintiff followed up with Dr. Cardinale on February 7,

2018, complaining of pain in her lower back and head with

associated numbness, tingling, weakness, and pins and needles

sensations. (R. 527.) Dr. Cardinale stated that her condition

was getting worse but that her pain was alleviated with medication

and heat. (R. 528.) He found bilateral trapezial, cervical,

paraspinal, and lumbar paraspinal spasms and tenderness. (R. 528-

29.) He also found that Plaintiff had a diminished range of motion

in her cervical spine. (R. 528.) Dr. Cardinale assessed

radiculopathy of the cervical region, cervicalgia, myalgia, and

chronic pain disorder. (R. 529.) He requested that Plaintiff

undergo another MRI scan, renewed her medication, including Botox,

and administered trigger point injections. (R. 529.) The

resulting MRI of Plaintiff’s cervical spine, which was conducted

on February 13, 2018, showed no acute process or significant

interval change, straightening of the normal cervical lordosis,

and mild disc protrusion at C3-4. (R. 524.) The MRI of Plaintiff’s

thoracic spine, which was conducted that same day, showed mild

thickening of ligamentum flavum in the lower thoracic spine,

without evidence of significant spinal canal stenosis. (R. 526.)

Last, on March 8, 2018, Plaintiff returned to Dr. Porges.

(R. 548.) She complained of ongoing diffuse pain, difficulty using

her hands, and pain in her neck, back and joints. (R. 548.) Dr.

Porges reported no remarkable findings in his musculoskeletal

examination, noting normal curvature and motion of the cervical,

thoracic and lumbar spines, and no tenderness or loss of motion in

the extremities or joints. (R. 551.) He assessed chronic diffuse

pain, “probably mechanical with fibromyalgia type pain,”

prescribed Tramadol, and referred Plaintiff to a spine specialist.

(R. 555.)

C. Opinion Evidence

There is opinion evidence from Dr. Checo, Dr. Rak, Dr.

Cardinale and Dr. Porges, four of Plaintiff’s treating physicians,

as well as Dr. Syeda Asad, M.D., who performed a consultative

examination upon the Commissioner’s request.

Dr. Checo completed a residual functional assessment

form dated November 6, 2015. (R. 347.) He indicated that

Plaintiff could sit and stand for five minutes at a time and for

less than two hours in an eight-hour work day. (R. 347.) He also

marked that Plaintiff could occasionally lift less than 10 pounds

but could never reach, feel, bend, stoop, crawl, handle, push/pull,

climb, kneel, or squat. (R. 347.)

Dr. Asad examined Plaintiff on February 1, 2016.

(R. 412.) Plaintiff’s chief complaints at that time were neck

pain, low back pain, and migraines. (R. 412.) She told Dr. Asad

that her pain has worsened over time, since the July 2015 accident,

and that the multiple epidural cortisone shots she received in the

upper neck and low back did not help. (R. 412.) She described

her neck pain as throbbing, radiating into the bilateral upper

extremities and associated with numbness and tingling into the

fingers on both hands. (R. 412.) Plaintiff’s low back pain was

sharp and radiating into both lower extremities, although more

prominently in the left leg. (R. 412.) She rated her pain as

eight out of ten in intensity. (R. 412.) Upon conducting a

physical examination, Dr. Asad noted that Plaintiff did not appear

to be in acute distress but with a slightly slow gait. (R. 412.)

Plaintiff had a normal stance and refused to squat or walk on her

heels and toes. She needed no help getting on and off the exam

table and was able to rise from her chair with minimal difficulty.

(R. 412-13.) Dr. Asad also reported that Plaintiff’s cervical

spine showed flexion and extension to 30 degrees, rotation of 40

degrees bilaterally, and lateral flexion 30 degrees bilaterally.

(R. 414.) Plaintiff’s thoracic spine showed no scoliosis,

kyphosis, or abnormalities. (R. 414.) Plaintiff’s lumbar spine

showed flexion and extension to 30 degrees, lateral flexion of 15

degrees bilaterally, and rotation of 15 degrees bilaterally.

Plaintiff’s shoulders had forward elevation of 40 degrees and she

had full range of motion of her elbows, forearms, and wrists

bilaterally. As to her hips, flexion and extension was 50 degrees

and backward extension was 15 degrees. Range of motion of

Plaintiff’s knees was 75 degrees, and she had full range of motion

in her ankles. Dr. Asad noted that Plaintiff had no sensory

deficits and rated Plaintiff’s strength as five out of five in

both her upper and lower extremities. She also indicated

Plaintiff’s hand and finger dexterity was intact and that

Plaintiff’s grip strength was rated five out of five in both hands.

Dr. Asad opined that due to Plaintiff’s back pain, she had

“moderate limitations for squatting, kneeling, bending, walking,

and standing for a long period of time” and “moderate limitations

for lifting, carrying, or pushing any objects.” (R. 415.)

Dr. Rak completed a “Spinal Impairment Questionnaire” on

February 2, 2017. (R. 453-59.) After noting that he began

treating Plaintiff on July 21, 2016, he stated Plaintiff’s

diagnosis as lumbar and cervical spine degenerative disc disease

and indicated this condition was chronic and long-term. (R. 453.)

The clinical findings he based this diagnosis upon were Plaintiff’s

abnormal gait; limited range of motion; tenderness; muscle spasm;

sensory loss; reflex changes; muscle atrophy; and muscle weakness

in the cervical and lumbar spine. (R. 454.) He also noted that

Plaintiff had constant headaches and pain in her back, neck, and

hands. (R. 455.) In assessing Plaintiff’s residual functional

capacity (“RFC”), Dr. Rak opined that, in an eight-hour work

environment, Plaintiff could sit, stand, and walk for up to one

hour. (R. 456.) He also recommended that Plaintiff not

continuously sit, stand or walk, and that she must get up and move

around every 30 to 40 minutes. (R. 456.) Dr. Rak noted that

Plaintiff was capable of tolerating low work stress and that she

could occasionally lift and carry between zero and 10 pounds but

never any weight in excess of that amount. (R. 457.) He believed

Plaintiff’s condition would: require her to take unscheduled

breaks; interfere with her ability to keep her neck in a constant

position; and cause her to be absent from work for treatment more

than three times per month. (R. 458.) He noted additional

limitations that would affect Plaintiff’s ability to work

regularly such as her need to avoid noise, heights, pulling,

pushing, kneeling, bending, and stopping. (R. 459.) In sum, he

stated Plaintiff was “unable to work.” (R. 457.)

Dr. Cardinale completed a “Multiple Impairment

Questionnaire” on November 14, 2017. (R. 504-11.) He indicated

that he began treating Plaintiff on a monthly basis on May 9, 2013.

(R. 504.) He diagnosed Plaintiff with myalgia and cervicalgia,

and noted Plaintiff’s lumbar spinal fusion. (R. 504.) He

identified positive clinical findings to support his diagnosis,

including palpation of the cervical spine; bilateral trapezial

spasm; bilateral paracervical spasm and tenderness; diminished

range of motion in all planes; and a positive Spurling’s test.

(R. 504.) Plaintiff’s pain was noted as constant, radiating,

shooting and throbbing in her left leg above the knee, as well as

in both arms above the elbow. (R. 505-06.) He noted the level of

pain was an 8 out of 10, and exacerbated by stretching, standing,

sitting, twisting, walking, bending, extending, lifting, and

laying in bed. (R. 505-06.) Regarding Plaintiff’s RFC, Dr.

Cardinale opined that Plaintiff could sit for 30 minutes, and stand

and walk for 15 minutes in an eight-hour work day. Further, she

must get up and move around every 15 minutes, and not stand or

walk continuously. (R. 506-07.) She could occasionally lift and

carry less than five pounds but could never exceed that amount.

(R. 507.) Plaintiff had significant limitations in doing

repetitive reaching, handling, fingering, or lifting, and had

marked limitations with respect to the use of both hands. (R.

507-08.) He opined that Plaintiff is totally disabled, could not

do a full-time competitive job that required activity on a

sustained basis, and that her symptoms would likely increase if

she was placed in such a work environment. (R. 508-09.)

Last, Dr. Porges completed a “Fibromyalgia Impairment

Questionnaire” on November 22, 2017. (R. 512-17.) He noted that

he began treating Plaintiff in April 2016 and saw her every three

to four months. (R. 512.) He identified Plaintiff as having

constant pain at a level of 9 out of 10 in her lumbar and cervical

spine, and in the bilateral shoulders, arms, hands/fingers, hips,

legs, knees, ankles, and feet. (R. 513-14.) As to Plaintiff’s

work limitations, Dr. Porges opined that Plaintiff could sit for

two hours on a non-continuous basis and stand/walk for less than

one hour. (R. 514.) He also indicated Plaintiff could

occasionally lift and carry less than five pounds, would need to

take unscheduled breaks, and miss work more than three times per

month. (R. 515-16.)

D. Vocational Expert’s Testimony

At the hearing, Srinivasan, the VE, testified that

Plaintiff worked as a real estate appraiser which was classified

as light and skilled work. (R. 48.) The VE then considered a

hypothetical individual with Plaintiff’s vocational profile who

was limited to light work, occasional climbing of ramps and stairs,

and occasional balancing, stooping, kneeling, crouching or

crawling; prohibited from climbing ladders, ropes or scaffolding

and from reaching overhead; limited to “frequent handling,

fingering and feeling”; and needed to avoid excessive noise, bright

lights, slippery and uneven surfaces, hazardous machinery,

unprotected heights, and open flames. (R. 48.) With these

limitations in mind, the VE opined that this individual could

perform Plaintiff’s past work, as well as the work of a cashier,

merchandise marker, and storage facility rental clerk. (R. 48-

49.) The ALJ modified the hypothetical to provide for a sedentary

exertional level but kept all of the other limitations in place,

and the VE testified that the individual could not perform

Plaintiff’s past work but could be a document specialist,

addresser, or charge account clerk. (R. 49.) However, if such a

person were to be regularly absent from work more than once per

month and/or be off task more than 10% of the day outside of

regularly scheduled breaks, the VE stated the person would not be

able to maintain competitive employment. (R. 50.) In addition,

if two-hour limitations for sitting and standing/walking, lifting

no more than five pounds, or occasional handling and fingering

were added to the hypotheticals, the VE indicated that under each

of those scenarios, the individual would be unable to perform the

light or sedentary work previously described. (R. 50-51.)

DISCUSSION

I. Standard of Review

In reviewing the ruling of an ALJ, the Court does not

determine de novo whether the plaintiff is entitled to disability

benefits. Thus, even if the Court may have reached a different

decision, it must not substitute its own judgment for that of the

ALJ. See Colgan v. Kijakazi, No. 20-CV-3297, 2022 WL 18502, at *3

(2d Cir. Jan. 3, 2022); see also Jones v. Sullivan, 949 F.2d 57,

59 (2d Cir. 1991). Put otherwise “[e]ven where the administrative

record may also adequately support contrary findings on particular

issues, the ALJ’s factual findings ‘must be given conclusive

effect’ so long as they are supported by substantial evidence.”

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (quoting Schauer

v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

II. The ALJ’s Decision

Initially, the ALJ found that Plaintiff meets the

insured-status requirements of her claim through June 30, 2020.

(R. 13.) Next, the ALJ applied the familiar five-step disability

analysis and concluded that Plaintiff was not disabled from July

13, 2015, the alleged disability-onset date, through July 30, 2018,

the date of the ALJ’s decision. (R. 13-21.); see also 20 C.F.R.

§ 404.1520. At steps one through three, the ALJ found that (1)

Plaintiff had not engaged in substantial gainful activity since

the alleged onset date (R. 13.); (2) Plaintiff had severe

impairments of degenerative disc disease in the cervical and lumbar

spines status post-fusion and fibromyalgia (R. 13.); and (3)

Plaintiff’s impairments did not meet, or medically equal, the

severity of any of the impairments listed in Appendix 1 of the

Social Security regulations (R. 14.)

The ALJ then determined that Plaintiff had the RFC to

perform sedentary work, albeit with the following limitations: be

prohibited from climbing ladders, ropes, and scaffolds; could only

occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, and crawl; be prohibited from reaching bilaterally

overhead; limited to frequent handling, fingering, and feeling

bilaterally; required to avoid concentrated exposure to excessive

noise and bright lights; and required to avoid slippery and uneven

surfaces, and hazardous machinery, unprotected heights, and open

flames. (R. 14.) To support this RFC determination, the ALJ first

summarized Plaintiff’s hearing testimony. (R. 15.) He observed

that Plaintiff testified she stopped working when she was involved

in an accident and that she is unable to work because she cannot

sit or stand for long; her neck gives her the most pain, which

pain travels to arms, hands, and fingers; her neck pain worsened

after the fusion but medications help; she did not go to physical

therapy due to lack of insurance coverage although she testified

that she had insurance through her husband and she performed

physical therapy at home which provided her relief. (R. 15.) The

ALJ was not persuaded by Plaintiff’s “subjective allegations that

treatment did not effectively manage the alleged symptoms.” (R.

15.)

Next, the ALJ turned to the Function Report that

Plaintiff submitted in connection with her disability claim, (R.

15, 180-87), and reflects that Plaintiff cannot lift anything

overhead, sit for more than 10 minutes, or stand or walk for more

than three minutes. (R. 15.) However, Plaintiff testified that

she could lift less than five pounds, walk two blocks, and stand

for 20 minutes on a good day but only 10 minutes on a bad day,

which the ALJ found inconsistent with the three-minute standing

and walking limitations in the Report. (R. 15.) The Report also

indicated that Plaintiff could not climb more than two stairs, she

needed help with cleaning and laundry, and that her daughter helped

her put on pants. (R. 15.) The ALJ also found these reported

abilities inconsistent with the alleged degree of severity. (R.

15.) Plaintiff testified that she was able to shower, and in the

Report, indicated she was able to prepare quick meals on a daily

basis and shop in stores for food. (R. 15.) The ALJ also pointed

to Dr. Asad’s examination of Plaintiff, during which Plaintiff

indicated she could perform light cleaning, laundry, and shop with

assistance, finding this contradictory to Plaintiff’s testimony

which provided that her husband and daughter performed those tasks.

(R. 15, 413.) Moreover, Plaintiff testified that she drove to

pick up her medications and that she flew to Florida in February

2018, which would involve sitting, standing, and walking for

extended periods.

The ALJ then reviewed the medical evidence and

determined that the objective findings failed to support the

alleged extent of Plaintiff’s symptoms and limiting effects. (R.

15-16.) To begin, the ALJ noted that Plaintiff went to the

emergency room after being involved in a car accident in July 2015

but was discharged that same day in improved condition. (R. 16.)

The orthopedic evidence from that month showed tenderness to

palpation of the cervical spine, pain with range of motion in the

cervical and lumbar spine, and positive Spurling’s test results,

but that Plaintiff maintained full strength of the upper

extremities. (R. 16.) The ALJ found the July 2015 cervical spine

MRI that showed mild degenerative change to be inconsistent with

the alleged degree of severity of Plaintiff’s neck symptoms. The

August 2015 lumbar spine MRI showed straightening but no interval

change of the disc herniation. (R. 16.) The September and October

2015 records showed diminished range of motion of the cervical and

lumbar spine and mild gait, but that Plaintiff maintained full

strength of the extremities. (R. 16.) The November 2015 records

contained no evidence of cervical or lumbar radiculopathy “which

shows that the alleged symptoms did not radiate as alleged.” (R.

16.) Moreover, the November and December 2015 records showed pain

and tightness and that Plaintiff maintained full strength of the

upper extremities, which the ALJ found consistent with the records

from February 2016 since they collectively demonstrated that

Plaintiff’s symptoms were not as limiting as alleged. (R. 116.)

The medical imaging from January and April 2016 showed

straightening and disc bulge in the lumbar spine, disc ridge

complexes and reversal of the curvature in the cervical spine,

severe spondylosis in the cervical spine, and mild disc herniation.

(R. 16.) However, the records from March, April and June of that

year showed normal gait despite tenderness, as well as decreased

range of motion, but that Plaintiff was not in pain. (R. 16.)

Again, this led the ALJ to the conclusion that the evidence

supports the existence of Plaintiff’s symptoms but not the extent

of their limiting effects. (R. 16.)

The ALJ then addressed the injections and surgical

intervention Plaintiff underwent. (R. 16.) He noted that

Plaintiff received injections for cervical spine symptoms in

August 2015, October 2015, and May 2016, then underwent a lumbar

fusion in September 2016. (R. 16.) Plaintiff then received

another injection in October 2016 and, in December 2016, reported

feeling better each day after the fusion. (R. 16.) However,

Plaintiff reported that her cervical spine symptoms continued and

underwent a cervical fusion in March 2017. (R. 16.) She reported

“doing great” as of June 2017 and, during a follow-up in August

2017, showed good alignment and complete decompression. (R. 17.)

Plaintiff also received more trigger point injections in September

2017 and February 2018. (R. 17.) This evidence of reported

improvement, according to the ALJ, was contrary to Plaintiff’s

testimony that the fusions did not help, and was reasonably

consistent with the specialized treatment findings. (R. 17.) The

May and June 2017 records showed diminished range of motion in the

cervical and lumbar spine, and the September 2017 evidence showed

diminished range of motion in the neck. (R. 17.) However,

Plaintiff maintained a normal gait as of October 2017 which the

ALJ found demonstrative of the fact that Plaintiff’s ability to

ambulate was not significantly limited. (R. 17.) Moreover,

although the February 2018 evidence continued to show diminished

range of motion of the cervical spine and spasms of the lumbar

spine, the medical images taken that same month showed no

significant changes or that Plaintiff’s condition was

deteriorating. (R. 17.)

The ALJ also found that the record did not support

Plaintiff’s claimed severity of fibromyalgia. (R. 17.) As of

April 2016, the record showed the rheumatoid factor was 13 and the

initial rheumatology consultation evidence showed a marked

decrease range of motion of the lumbar. (R. 17.) However, the

only tender points identified were in the elbow and shoulders which

did not indicate that the fibromyalgia was wide-spread throughout

Plaintiff’s body. (R. 17.) Similarly, the June 2017 rheumatology

evidence showed tenderness of the knees, but not in the hands; the

November 2017 records showed tenderness of the knees spine, and

hands; but the February 2018 documentation showed normal findings

of the musculoskeletal system, including full range of motion and

no tenderness. (R. 17.)

Next, the ALJ considered the opinion evidence. He

assigned limited, little, or very little weight to each of the

four opinions provided by Dr. Checo, Dr. Rak, Dr. Cardinale, and

Dr. Porges, all with whom Plaintiff had a treatment relationship.

(R. 17-19.) As to Dr. Checo, Dr. Rak, and Dr. Cardinale, the ALJ

found that their opinions were not consistent with the evidence,

including Plaintiff’s “reported and demonstrated abilities as well

as the evidence of improvement.” (R. 17-18.) Then, as to Dr.

Porges, the ALJ found that his opinion was “inconsistent with the

evidence throughout the record, including [his] own findings.”

(R. 18.) Last, the ALJ considered the findings by Dr. Asad and

assigned some weight to her opinion, which prescribed moderate

limitations on Plaintiff’s abilities despite the opinion being

based upon a one-time examination. (R. 19.)

Turning to step four of the disability analysis, the ALJ

found Plaintiff was not capable of performing any past relevant

work, consistent with the VE’s testimony. (R. 19.) Nevertheless,

at the final, fifth next step, the ALJ concluded that

“[c]onsidering [Plaintiff’s] age, education, work experience, and

residual functional capacity, there are jobs that exist in

significant numbers in the national economy that the claimant can

perform.” (R. 19.) Accordingly, the ALJ determined that Plaintiff

is not disabled. (R. 20.)

III. Analysis

Plaintiff’s primary argument is that the ALJ weighed the

opinion evidence by Dr. Checo, Dr. Rak, Dr. Cardinale, and Dr.

Porges in violation of the treating physician rule which renders

the ALJ’s RFC determination unsupported by the record. (Pl.

Support Memo at 1.) The Commissioner contends that the ALJ

properly declined to afford controlling weight to these opinions

and that the ALJ’s RFC findings are supported by substantial

evidence. (Comm’r Support Memo at 25-33.)

A. The Treating Physician Rule3

The “treating physician rule” provides that the medical

opinions and reports of a claimant’s treating physicians are to be

given “special evidentiary weight.” Clark v. Comm’r of Soc. Sec.,

143 F.3d 115, 118 (2d Cir. 1998). The regulations state:

Generally, we give more weight to medical

opinions from your treating sources . . . .

If we find that a treating source’s medical

opinion on the issue(s) of the nature and

severity of your impairment(s) is well-

supported by medically acceptable clinical and

laboratory diagnostic techniques and is not

inconsistent with the other substantial

3 “[T]he Court reviews the ALJ’s decision under the earlier

regulations because the Plaintiff’s application was filed before

the new regulations went into effect.” Williams v. Colvin, No.

16-CV-2293, 2017 WL 3701480, at *1 (E.D.N.Y. Aug. 25, 2017).

evidence in your case record, we will give it

controlling weight.

20 C.F.R. § 404.1527(c)(2) (emphasis supplied; second and third

alterations in original). Thus, the opinion of a treating

physician “need not be given controlling weight where [it is]

contradicted by other substantial evidence in the record.” Molina

v. Colvin, No. 13-CV-4701, 2014 WL 3925303, at *2 (S.D.N.Y. Aug. 7,

2014) (internal quotation marks and citation omitted).

When an ALJ does not afford controlling weight to the

opinion of a treating physician, the ALJ must consider several

factors:

(1) the length of the treatment relationship

and frequency of the examination; (2) the

nature and extent of the treatment

relationship; (3) the extent to which the

opinion is supported by medical and laboratory

findings; (4) the physician’s consistency

with the record as a whole; and (5) whether

the physician is a specialist.

Schnetzler v. Astrue, 533 F. Supp. 2d 272, 286 (E.D.N.Y. 2008).

The ALJ must also set forth “‘good reasons’ for not crediting the

opinion of a [plaintiff’s] treating physician.” Id. at 287. An

ALJ provides “‘good reasons’ for discounting a treating

physician’s opinion that reflect in substance the factors as set

forth in [Section] 404.1527(d)(2), even though the ALJ declines to

examine the factors with explicit reference to the regulation.”

Crowell v. Comm’r of Soc. Sec., 705 F. App’x 34, 35 (2d Cir. 2017)

(“While the ALJ did not explicitly discuss the treating physician

rule, he nonetheless stated that [the physician’s]

opinion . . . was contradictory to the rest of the record

evidence.”). “Ultimately, an ALJ must comprehensively set forth

her reasons for the weight assigned to a treating physician’s

opinion.” Id. (internal quotation marks and citation omitted).

B. Application

In explaining his decision to afford Plaintiff’s

treating physicians’ opinions less than controlling weight, the

ALJ generally stated that the opinions were not consistent with

the evidence in the record due to Plaintiff’s “reported and

demonstrated abilities” as well as her “reported improvement.” To

support these inferences as to each physician’s opinion, the ALJ

provided the same string citation to a laundry list of exhibits

without any elaboration regarding the exhibits and their

significance, i.e., what within the exhibits rendered the opinions

inconsistent. (See R. 17-19.) As such, it is not clear to the

Court why the records cited by the ALJ formed the bases of his

assessments of the physicians’ opinions. Despite the fact that

all of the treating physicians’ opinions were consistent with each

other, yet deemed non-controlling, it is also not apparent why

some were seemingly afforded more weight than others, e.g., why

the opinions of Dr. Checo and Dr. Rak were afforded “limited

weight” whereas Dr. Cardinale’s opinion was assigned “little

weight” and Dr. Porges’ opinion was given “very little weight.”

See Maneri v. Berryhill, No. 17-CV-322, 2019 WL 4253972, at *5

(E.D.N.Y. Sept. 9, 2019) (“Although the Court is generally required

to defer to the medical opinion of a treating physician, see

Schisler v. Sullivan, 3 F.3d 563, 567-68 (2d Cir. 1993), those

findings may not be accorded controlling weight if they are

inconsistent with other substantial evidence, including the

opinions of other medical experts.” (citation omitted)). This

constitutes error requiring remand because the ALJ’s lack of

particularity frustrates the Court’s review of the weight afforded

to these opinions. See Cichocki v. Astrue, 729 F.3d 172, 177 (2d

Cir. 2013) (“Remand may be appropriate, however, where an ALJ fails

to assess a claimant’s capacity to perform relevant functions,

despite contradictory evidence in the record, or where other

inadequacies in the ALJ’s analysis frustrate meaningful review.”

(emphasis added) (citing Myers v. Apfel, 238 F.3d 617, 621 (5th

Cir. 2001))); Colon Medina v. Comm’r of Soc. Sec., 351 F. Supp.

3d 295, 303 (W.D.N.Y. 2018) (“Because the ALJ’s reasoning for

rejecting several opinions in the record is abundantly unclear to

the Court, the matter must be remanded for further proceedings.”).

The Court further observes that, based upon the portion

of the ALJ’s decision which reviews the record evidence, it appears

the information that the ALJ utilized to discredit the treating

physicians’ opinions consisted of Plaintiff’s stated abilities to

walk two blocks, shower, “prepare quick meals on a daily basis,”

shop in stores for food with or without assistance, perform light

cleaning, do laundry, do physical therapy at home, drive to pick-

up medication, and travel to Florida by plane. (R. 15.) In

addition, the ALJ referred to Plaintiff’s reported improvement

after receiving injections and undergoing both a lumbar fusion and

a cervical fusion. (R. 16.) However, the Court does not find any

of these rationales to be “good reasons” to discount the

physicians’ opinions.

First, to the extent the ALJ relied upon evidence of

Plaintiff’s daily activities described above, the Court does not

view these abilities to be inconsistent with the limitations

prescribed by the treating physicians in their opinions. See

McCleese v. Saul, No. 18-CV-4494, 2019 WL 3037308, at *12–13

(S.D.N.Y. June 26, 2019) (“As for daily activities, the ALJ cited

to evidence in the record that McCleese engaged in shopping,

exercising, light cooking, watching television, reading and

socializing with friends, which he found indicated a ‘higher level

of functionality’ than Dr. Polifrone’s opinions allowed. However,

McCleese’s ability to engage in certain daily activities on a

limited basis is not inconsistent with the limitations described

by Dr. Polifrone.” (internal citation omitted)), report &

recommendation adopted sub nom., 2019 WL 3034892 (S.D.N.Y. July

11, 2019); see also Cabrera v. Comm’r of Soc. Sec., No. 16-CV-

4311, 2017 WL 3686760, at *4 (S.D.N.Y. Aug. 25, 2017) (holding

ALJ’s rejection of treating physician opinion improper where the

opinion was discredited as “not consistent with the claimant’s own

reported retained capacity to perform activities of daily living

despite her severe physical impairments” because “[c]ourts have

found statements of this sort to be too conclusory to constitute

‘good reasons’ for not assigning a treating doctor’s opinion

controlling weight”). “The ALJ had an obligation to better explain

his decision to discount [the treating physicians'] opinion[s]

based on [Plaintiff’s] alleged ability to perform daily

activities, and to at least acknowledge the rigor of [Plaintiff’s]

daily activities and the limitations she placed on those tasks.”

Cabrera, 2017 WL 3686760, at *4 (citing Archambault v. Astrue, No.

09-CV-6363, 2010 WL 5829378, at *30 (S.D.N.Y. Dec. 13, 2010),

report & recommendation adopted, 2011 WL 649665 (S.D.N.Y. Feb. 17,

2011)); see also Lawrence v. Comm’r of Soc. Sec., No. 18-CV-12317,

2020 WL 8815492, at *1 (S.D.N.Y. June 10, 2020) (“[T]he Court finds

that the ALJ’s reliance on Lawrence’s purported daily activities

and conservative treatment are not good reasons to assign little

weight to Dr. McNulty’s opinions as to Lawrence’s functional

abilities. Notably, the ALJ’s characterization of Lawrence’s

reported daily activities is flawed. The ALJ stated that Lawrence

could drive, go out alone, put clothing into a washing machine, do

some cooking and go to the store, but in the function report the

ALJ cites Lawrence describes significant limitations on these

activities. . . . Moreover, the activities described do not

undermine Dr. McNulty’s assessment of Lawrence’s work-related

functions.” (citations omitted)), report & recommendation adopted,

2020 WL 8815488 (S.D.N.Y. June 29, 2020).

Moreover, although the Court understands why the ALJ

would question Plaintiff’s stated inability to sit for extended

periods of time because she flew to Florida, the Court does not

find this single isolated event to be in conflict with Plaintiff’s

work-related limitations assessed by her treating physicians

because those assessments were based upon Plaintiff’s ability to

perform certain activities for purposes of working eight hours a

day, five days per week. See Cummings v. Comm’r of Soc. Sec., No.

18-CV-0187, 2020 WL 5045038, at *6 (W.D.N.Y. Aug. 26, 2020) (“[T]he

ALJ’s rejection of Dr. Bassig’s opinion based on its inconsistency

with Plaintiff’s own testimony about her travel to California prior

to the hearing was not justified. Even though the ALJ has

discretion to resolve conflicts in the record, including those

related to a claimant’s activities of daily living, see Perozzi v.

Berryhill, 287 F. Supp. 3d 471, 492 (S.D.N.Y. 2018), the claimant’s

daily activities alone cannot constitute substantial evidence. In

fact, a claimant’s ability to function on a daily basis in a

restrictive and isolated setting has been found to be insufficient

to determine the claimant’s employability . . . . Here,

Plaintiff’s isolated short trip to California where she first flew

on a plane and then was a passenger in the car while her niece

drove them along the Pacific Coast Highway was insufficient to

discount the findings of Dr. Bassig’s regarding Plaintiff’s work-

related limitations.” (citations omitted)).

Last, the Court is not convinced that “the evidence of

improvement” cited by the ALJ is sufficient grounds to reject the

treating physicians’ opinions. (R. 16-17.) The ALJ noted that

after receiving several trigger point injections, Plaintiff

underwent a lumbar fusion in September 2016, received another

injection in October 2016, underwent a cervical fusion in March

2017, and received additional injections in September 2017 and

February 2018. (R. 16-17.) Pertinent here, the ALJ noted that in

December 2016, Plaintiff reported feeling better each day

following the lumbar fusion and that in March 2017, she felt great

after the cervical fusion. (R. 16.) The ALJ then found this

“evidence of improvement . . . reasonably consistent with the

specialized treatment findings.” (R. 17.) Yet, after reviewing

further orthopedic evidence from May to September 2017, which

showed Plaintiff had diminished range of motion of the spine and

neck following surgical intervention, the ALJ found that February

2018 MRI scans of Plaintiff’s spine “show[] that her condition was

not deteriorating despite her subjective allegations” to the

contrary. (R. 17.) Even if that were so, neither did those scans

evince any improvement; at most, they were neutral and certainly

not enough to disregard the opinions of Plaintiff’s treating

physicians.

In sum, the ALJ essentially indicates that the treating

physicians’ opinions concerning the severity of Plaintiff’s

degenerative disc disease were based upon Plaintiff’s subjective

complaints of pain, which are not supported by the record evidence.

And to reconcile this determination, the ALJ erroneously inserted

his own opinion as to the implications of Plaintiff’s MRI scans.

“It is well-settled that ‘the ALJ cannot arbitrarily substitute

his own judgment for competent medical opinion . . . . [W]hile an

[ALJ] is free to resolve issues of credibility as to lay testimony

or to choose between properly submitted medical opinions, he is

not free to set his own expertise against that of a physician who

[submitted an opinion to or] testified before him.’” Balsamo v.

Chater, 142 F.3d 75, 81 (2d Cir. 1998) (alterations in original)

(citing McBrayer v. Sec’y of Health & Human Servs., 712 F.2d 795,

799 (2d Cir.1983)).

Thus, the Court finds that the ALJ violated the treating

physician rule, thereby warranting remand. On remand, the ALJ

will need to reevaluate the weight he accorded to Plaintiff’s

treating physicians’ opinions. This is particularly so where these

four physicians reached consistent conclusions, and the ALJ

provided inadequate explanations for discrediting their opinions

in addition to critiquing those opinions based upon his own

judgment. If any of these opinions are given controlling weight

on remand, there is a substantial likelihood that the ALJ’s

conclusion that Plaintiff is able to perform sedentary work will

be reversed. In particular, Drs. Checo, Cardinale, Porges, and

Rak all opined that Plaintiff’s ability to sit is extremely

limited, and according to the VE’s hearing testimony, Plaintiff

would be unable to perform the sedentary jobs identified by the

ALJ in his decision if Plaintiff could not sit for two hours in a

given workday.

In light of these findings, the Court need not consider

the parties’ remaining contentions, which they are free to address

on remand.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED that

Plaintiff’s motion (ECF No. 8) is GRANTED and the Commissioner’s

motion (ECF No. 13) is DENIED. This matter is REMANDED for

proceedings consistent with this Memorandum and Order. The Clerk

of the Court is directed enter judgment accordingly and to mark

this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: March 28, 2022

Central Islip, New York