# Mortellaro v. Commissioner of Social Security

> District Court, E.D. New York · March 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10307738

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
GEORGETTE MORTELLARO,

Plaintiff, MEMORANDUM & ORDER
19-CV-4868(JS)
-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
--------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307738. Public record. Not legal advice.