Ramirez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------

HAYDEE A. RAMIREZ f/k/a HAYDEE A.

GARCIA,

Plaintiff, MEMORANDUM & ORDER

20-CV-4073 (MKB)

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Haydee A. Ramirez, formerly known as Haydee A. Garcia, commenced the

above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying her claim

for Social Security disability insurance benefits (“DIB”) under the Social Security Act (the

“SSA”). (Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the pleadings pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that Administrative Law Judge

Brien Horan (the “ALJ”) committed error in his determination that Plaintiff is not entitled to DIB

under Title II of the SSA because his assessment that she was not disabled was not supported by

substantial evidence and he failed to properly evaluate her subjective complaints. (Pl.’s Mot. for

J. on the Pleadings (“Pl.’s Mot.”), Docket Entry No. 19; Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s

Mem.”) 1, annexed to Pl.’s Mot., Docket Entry No. 19-1.) The Commissioner cross-moves for

judgment on the pleadings, arguing that substantial evidence supported the ALJ’s findings and

that the ALJ properly evaluated Plaintiff’s subjective complaints. (Comm’r’s Mot. for J. on the

Pleadings (“Comm’r’s Mot.”), Docket Entry No. 17; Comm’r’s Mem. in Supp. of Comm’r’s

Mot. (“Comm’r’s Mem.”) 1, annexed to Comm’r’s Mot., Docket Entry No. 17-1.)

For the reasons set forth below, the Court grants Plaintiff’s motion and denies the

Commissioner’s cross-motion.

I. Background

Plaintiff was born in 1964. (Certified Admin. R. (“R.”) 21, Docket Entry No. 12.)

Plaintiff has a high school education, (R. 191), and worked at an airline for almost thirty years,

the last fifteen of which she spent as a customer service representative and gate attendant, (R.

39–40).

On December 12, 2016, Plaintiff applied for DIB, alleging that she has suffered from a

disability since September 9, 2015, when she was fifty-one years old. (R. 13, 156–57.) In her

disability report, Plaintiff alleged disability due to back and neck problems and bilateral carpal

tunnel syndrome. (R. 156, 190.) On March 17, 2017, the Social Security Administration denied

Plaintiff’s claim, and Plaintiff subsequently requested a hearing. (R. 66–74, 106–07.) On May

13, 2019, Plaintiff appeared with an attorney and testified before the ALJ. (R. 28–65.) By

decision dated June 5, 2019, the ALJ determined that Plaintiff was not disabled from September

9, 2015, Plaintiff’s alleged onset date, through the date of the decision. (R. 10–22.) On June 29,

2020, the Social Security Administration Appeals Council denied Plaintiff’s request for review

of the ALJ’s determination, rendering his decision final. (R. 1–4.) Plaintiff timely appealed to

this Court. (See Compl.)

a. Hearing before the ALJ

At the May 13, 2019 administrative hearing, Plaintiff testified that while she initially

worked as a baggage clerk, the airline reassigned her after spinal surgery to a customer service

role, which required her to use both hands to open and close heavy doors and frequently check or

carry luggage from the boarding gate to the plane. (R. 39–42.) Plaintiff experiences burning and

tingling in both hands like “pins and needles.” (R. 43.) She also experiences hand weakness and

frequently drops things. (R. 43.) Plaintiff’s doctor instructed her to wear wrist bands to combat

the pain and weakness in her arms. (R. 44.) Plaintiff has pain radiating from her neck into her

arms, and she cannot lift heavy items. (R. 44–45.) She has neck and back pain during humid

rainy weather. (R. 44.) She also has back pain radiating down into her legs, which become

numb if she walks for one hour. (R. 44–45.) She can only stand for fifteen minutes or less, and

she cannot ride a bicycle because she cannot properly grasp the handles. (R. 45–46.) Although

surgical procedures eased some of the pain, Plaintiff still experiences tingling in both hands. (R.

52.) She drops silverware and plates and has since substituted them with disposable plastic

wares. (R. 48.) Plaintiff did not receive treatment after 2018 because her worker’s

compensation benefits ended. (R. 54.) Plaintiff uses hot and cold compresses rather than pain

medication, (R. 48), and lies down to rest two to three times per day, (R. 49).

The vocational expert Joseph Goodman (the “VE”) testified that an individual with

Plaintiff’s age, education, and past work experience, and with a full range of light work except

frequent balancing, stooping, kneeling, crouching, crawling and climbing ramps and stairs, no

climbing of ladders, ropes and scaffolds, frequent pushing and pulling with the right upper

extremity, frequent handling and fingering with the bilateral upper extremity, and occasional

exposure to humidity, could perform Plaintiff’s past work as a customer service representative/

gate attendant if it did not include exposure to extreme cold and heat. (R. 55–56.) The VE also

identified other unskilled light and sedentary work that the individual could perform, such as

extrusion operator, sub assembler, and sorter. (R. 57, 60.) If such an individual were limited to

occasional handling and fingering with the bilateral hands, there would be no past work, nor any

light work, but there would be available sedentary work such as a surveillance system monitor or

call-out operator, (R. 56–60), and if limited to less than occasional fingering and handling with

the bilateral hands, there would be no work, (R. 63). In addition, if such an individual were

absent two or more days per month or were off task more than ten percent of the workday due to

pain issues, there would be no work. (R. 60–61.)

b. Function report

In a written function report dated January 18, 2017, Plaintiff stated that she needed

assistance getting dressed depending on the clothing, her daughter helped her bathe and perform

hair care, and she had difficulty using a knife when feeding herself. (R. 200.) Plaintiff’s

daughter did the shopping and prepared her food, but Plaintiff could make her bed and perform

light household chores. (R. 201–02.) Plaintiff could not lift due to hand pain and lack of

strength, and standing and walking caused leg cramping such that she could walk one mile

before requiring rest. (R. 204–05.) Plaintiff took over-the-counter pain medication that relieved

her pain within twenty minutes and that lasted for a few hours. (R. 207.) Plaintiff did not have

any issues paying attention, finishing tasks, or following written or verbal instructions. (R. 205–

06.) She drove, ventured out alone, went to church, read, ate, and slept. (R. 199, 202–03.)

c. The ALJ’s decision

The ALJ conducted the five-step sequential analysis required by the SSA.1 20 C.F.R.

§ 416.920(a). At step one, the ALJ found that Plaintiff has not engaged in substantial gainful

1 The five-step sequential process outlined by the SSA considers:

(1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment or

combination of impairments; (3) whether the impairment meets or

activity since September 9, 2015, the alleged disability onset date. (R. 15.) At step two, he

found that Plaintiff has the severe impairments of major joints disfunction and spine disorder.

(R. 15.) At step three, he found that Plaintiff’s impairments do not meet or medically equal the

severity of any of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.

(R. 15–16.) At step four, he concluded that Plaintiff has the residual functional capacity (“RFC”)

to perform light work except “(1) frequent balancing, stooping, kneeling, crouching, crawling

and climbing of ramps or stairs and no climbing of ladders, ropes or scaffolds; (2) frequent

pushing and pulling with the right upper extremity; and (3) no more than frequent handling and

fingering with the bilateral upper extremities.” (R. 16.) The ALJ found that, given this

assessment, Plaintiff retains the RFC to perform past relevant work as a gate attendant, as well as

serve in other sedentary roles including surveillance system monitor and call-out operator, which

require skills acquired in the claimant’s past relevant work but no additional skills. (R. 20–21.)

Accordingly, the ALJ concluded that Plaintiff was “not disabled.” (R. 21.)

II. Discussion

a. Standard of review

“In reviewing a final decision of the Commissioner, a district court must determine

whether the correct legal standards were applied and whether substantial evidence supports the

decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (citing Machadio v. Apfel, 276

equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a ‘residual functional capacity’

assessment, whether the claimant can perform any of his or her past

relevant work despite the impairment; and (5) whether there are

significant numbers of jobs in the national economy that the

claimant can perform given the claimant’s residual functional

capacity, age, education, and work experience.

Demars v. Comm’r of Soc. Sec., 841 F. App’x 258, 260–61 (2d Cir. 2021) (quoting Estrella v.

Berryhill, 925 F.3d 90, 94 (2d Cir. 2019)).

F.3d 103, 108 (2d Cir. 2002)), as amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005); see

also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). “Substantial evidence

means more than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir.

2020) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Once an ALJ finds facts, the

court “can reject those facts only if a reasonable factfinder would have to conclude otherwise.”

Talyosef v. Saul, 848 F. App’x 47, 48 (2d Cir. 2021) (quoting Brault v. Soc. Sec. Admin., 683

F.3d 443, 448 (2d Cir. 2012)). In deciding whether substantial evidence exists, the court will

“defer to the Commissioner’s resolution of conflicting evidence.” Smith v. Berryhill, 740 F.

App’x 721, 726 (2d Cir. 2018) (quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.

2012)). If, however, the Commissioner’s decision is not supported by substantial evidence or is

based on legal error, a court may set aside the Commissioner’s decision. See Ewen v. Saul, No.

19-CV-9394, 2021 WL 1143288, at *11 (S.D.N.Y. Mar. 23, 2021) (citing Moran, 569 F.3d at

112); see also Prince v. Astrue, 514 F. App’x 18, 19–20 (2d Cir. 2013) (citing Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008)).

b. The ALJ failed to properly weigh the opinion evidence

Plaintiff argues that the ALJ’s step-four finding is not supported by substantial evidence

because he failed to properly weigh the opinion evidence. (Pl.’s Mem. 11.) In support, Plaintiff

contends that the ALJ provided no specific reasons nor explanation for why the opinions of

orthopedic surgeon Mitchell Keschner, M.D., were “not incorporated into the RFC,” (id. at 13),

and if the ALJ implicitly disregarded Dr. Keschner’s opinions, then the finding disregards Dr.

Keschner’s post-operative statements and objective findings of manipulative and exertional

limitations, (id. at 14). Plaintiff also contends that the ALJ did not provide any explanation or

cite to any particular treatment records in rejecting the opinion of consultative examiner Syeda

Asad, M.D., regarding Plaintiff’s manipulative limitations. (Id. at 17.) In addition, Plaintiff

argues that the ALJ failed to properly evaluate Plaintiff’s subjective complaints. (Id. at 19–23.)

The Commissioner argues that substantial evidence supports the ALJ’s RFC finding

because the ALJ implicitly rejected Dr. Keschner’s opinion when he examined “subsequent

evidence reflecting post-surgical treatment, examination findings, and additional medical

opinions more probative of Plaintiff[’s] functional limitations and abilities after surgical

intervention.” (Comm’r’s Mem. 12.) The Commissioner also contends that the ALJ properly

discussed medical findings and opinions by Dr. Asad. (Id. at 13.) Finally, the Commissioner

argues that the ALJ properly assessed Plaintiff’s subjective complaints and properly found them

“not entirely consistent with the medical and other evidence.” (Id. at 16.)

“[A] treating physician’s statement that the claimant is disabled cannot itself be

determinative.” Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel,

177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)

(same). However, an ALJ “must follow” specific procedures “in determining the appropriate

weight to assign a treating physician’s opinion.”2 Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.

2019); see also Ferraro v. Saul, 806 F. App’x 13, 14 (2d Cir. 2020) (holding that “[u]nder

2 On January 18, 2017, the Social Security Administration published a final rule that

changed the protocol for evaluating medical opinion evidence. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (codified at 20

C.F.R. §§ 404 & 416). The “new regulations apply only to claims filed on or after March 27,

2017.” Smith v. Comm’r of Soc. Sec., 731 F. App’x 28, 30 n.1 (2d Cir. 2018). Because

Plaintiff’s claim was filed prior to that date, the Court refers to versions of the regulations that

were in effect prior to March 27, 2017. See White v. Berryhill, No. 17-CV-4524, 2018 WL

4783974, at *4 n.4 (E.D.N.Y. Sept. 30, 2018) (“While the Act was amended effective March 27,

2017, the [c]ourt reviews the ALJ’s decision under the earlier regulations because the

[p]laintiff’s application was filed before the new regulations went into effect.”).

Second Circuit precedent and the applicable regulations,” the ALJ must follow the two-step

procedure laid out in Estrella to determine the appropriate weight to assign to the opinion of a

treating physician). “First, the ALJ must decide whether the opinion is entitled to controlling

weight.” Estrella, 925 F.3d at 95. “[T]he opinion of a claimant’s treating physician as to the

nature and severity of [an] impairment is given ‘controlling weight’ so long as it ‘is well-

supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] case record.’” Id. (alterations in original)

(quoting Burgess, 537 F.3d at 128); see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015)

(discussing the treating physician rule); Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011)

(“The opinion of a treating physician is accorded extra weight because the continuity of

treatment he provides and the doctor/patient relationship he develops place[s] him in a unique

position to make a complete and accurate diagnosis of his patient.” (quoting Mongeur v. Heckler,

722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).

“Second, if the ALJ decides the opinion is not entitled to controlling weight, it must

determine how much weight, if any, to give it.” Estrella, 925 F.3d at 95. In deciding how much

weight to assign to the opinion, the ALJ “must ‘explicitly consider’ the following, nonexclusive

‘Burgess factors’: ‘(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of

medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a specialist.’” Id. at 95–96 (alteration in

original) (quoting Selian, 708 F.3d at 418); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d

Cir. 2004) (per curiam) (citing 20 C.F.R. § 404.1527(d)(2)) (discussing the factors). “At both

steps, the ALJ must ‘give good reasons . . . for the weight [it gives the] treating source’s

[medical] opinion.’” Estrella, 925 F.3d at 96 (alterations in original) (quoting Halloran, 362

F.3d at 32). “An ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight at

step two is a procedural error.” Id. (quoting Selian, 708 F.3d at 419–20). “If ‘the Commissioner

has not [otherwise] provided ‘good reasons’ [for its weight assignment],’” the district court is

unable to conclude that the procedural error is harmless, and remand is therefore appropriate, so

that the ALJ can “comprehensively set forth [its] reasons.” Id. (alterations in original) (quoting

Halloran, 362 F.3d at 33); see also Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir.

2012) (noting that failure “to provide good reasons for not crediting the opinion of a claimant’s

treating physician is a ground for remand” (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.

1998))); Halloran, 362 F.3d at 32–33 (“We do not hesitate to remand when the Commissioner

has not provided ‘good reasons’ for the weight given to a treating physician[’]s opinion . . . .”).

However, if a “searching review of the record” assures the court that the “substance of the

treating physician rule was not traversed,” the court will affirm. Estrella, 925 F.3d at 96

(quoting Halloran, 362 F.3d at 32).

Because the ALJ failed to explain why he did not assign any weight to Dr. Keschner’s

opinion, the ALJ violated the treating physician rule. Plaintiff met with Dr. Keschner on no less

than ten separate occasions between September of 2016 and April of 2017, and during these

visits Dr. Keschner performed four separate surgeries, including bilateral carpal tunnel release

procedures and right and left trigger thumb release procedures, as well as five physical

examinations, post-surgical examinations, and prepared a medical source statement.3 See

Fontanez v. Colvin, No. 16-CV-1300, 2017 WL 4334127, at *18 (E.D.N.Y. Sept. 28, 2017)

(finding that a physician the plaintiff “regularly met with . . . for numerous psychotherapy

sessions” was a treating physician). During these meetings, Plaintiff repeatedly complained of

3 (R. 328–29, 331, 372–73, 380–83, 398–401, 412–13, 440–45, 447–48.)

numbness and tingling in her hands, thumbs, and fingers, and Dr. Keschner noted on at least five

occasions that Plaintiff experienced limited wrist extension and flexion, tenderness to palpation

of the thumb CMC joint, decreased sensation to touch at the wrist nerve, and inability to flex the

IP joint. (See R. 329–30, 387, 399, 442–43, 448, 451, 455.) In a Medical Source Statement

(“MSS”) dated January 13, 2017, Dr. Keschner stated that Plaintiff is likely to be “off task”

approximately ten percent of the day. (R. 372.) Dr. Keschner also noted that, during flare ups,

which are rare, Plaintiff has no ability to work in a competitive work environment; could walk a

half mile; could sit or stand for two hours at a time for a total of four hours per day; could not

lift; could bend, stoop and balance occasionally; could never complete fine or gross manipulation

with either hand or fingers on either hand; could occasionally reach out and reach overhead with

both arms; and rarely needed to rest. (R. 373.) However, the ALJ did not attempt to make any

determination as to whether Dr. Keschner’s opinion was entitled to controlling weight. (See R.

16–20.) Nor did he explicitly consider the Burgess factors to determine how much weight

should be assigned to the opinion or the reasons for any weight assignment. (See id.) Because

the ALJ must explicitly consider the otherwise valid opinion of a treating source, the ALJ failed

to comply with the treating physician rule, and therefore committed a procedural error. See

Ferraro, 806 F. App’x at 15 (holding that the ALJ failed to apply the Burgess factors or

otherwise provide “good reasons” for assigning a reduced weight because “merely

acknowledging the existence of treatment relationships is not the same as explicitly considering

‘the frequency, length, nature, and extent of treatment’” (quoting Estrella, 925 F.3d at 95));

Hornyak v. Saul, No. 18-CV-1950, 2020 WL 1910129, at *13 (D. Conn. Apr. 20, 2020) (“In his

decision, the ALJ failed to specify the weight he assigned to [the] treating physicians. . . . [and]

[f]ailure to do so is legal error.” (citing Dailey v. Barnhart, 277 F. Supp. 2d 226, 235 (W.D.N.Y.

2003))); Rivera v. Berryhill, No. 17-CV-991, 2018 WL 4328203, at *14–15 (S.D.N.Y. Sept. 11,

2018) (“Although the ALJ mentioned a few of [the treating physician’s] findings, his failure to

state expressly what weight, if any, he gave to them provides a separate basis for remand.” (first

citing McClean v. Astrue, 650 F. Supp. 2d 223, 228 (E.D.N.Y. 2009); and then citing Crothers v.

Colvin, No. 13-CV-4060, 2015 WL 1190167, at *2 (S.D.N.Y. Mar. 16, 2015))); Fontanez, 2017

WL 4334127, at *18 (“By failing to assign any weight to [the plaintiff’s] treating psychiatrist . .

. and by implicitly rejecting [his] diagnoses without providing any reasons for doing so, the ALJ

committed error that requires remand.” (collecting cases)); Crothers, 2015 WL 1190167, at *2

(remanding where the ALJ failed to assign any weight to the plaintiff’s treating physician’s

report); Dailey, 277 F. Supp. 2d at 235 (“The ALJ simply does not articulate the reasons for the

weight he assigned, if any, to the opinions of [the treating physicians]. This lapse alone

constitutes legal error and requires that the case be remanded.”).

The Commissioner’s assertion that while the ALJ did not specifically weigh Dr.

Keschner’s pre-surgery opinion, he did so implicitly by discussing evidence reflecting post-

surgical treatment, examination findings, and additional medical opinions, (see Comm’r’s Mem.

12), is insufficient to comply with the treating physician rule. The ALJ did not explicitly assign

weight to any component of Dr. Keschner’s opinion or provide an explanation for why no weight

was assigned under the Burgess factors. The ALJ’s “implicit” rejection of Dr. Keschner’s

opinion is insufficient. (Comm’r’s Mem. 12); see Ferraro, 806 F. App’x at 15 (“[M]erely

acknowledging the existence of treatment relationships is not the same as explicitly considering

‘the frequency, length, nature, and extent of treatment.’”); Estrella, 925 F.3d at 95 (noting that

the ALJ must “explicitly consider” factors). These assertions are also belied by the record. After

Dr. Keschner performed the bilateral carpal tunnel release procedures in October and November

of 2016, he noted on November 23, 2016, that Plaintiff’s left “wrist extension is [sixty-five]

degrees and flexion is [sixty] degrees” and right “wrist extension is [sixty] degrees and flexion is

[seventy-five] degrees,” “scar is tender to palpation,” “A1 pulley region of the thumb is tender,”

and “patient is unable to actively flex the IP joint,” (R. 330–31); and on January 4, 2017, that

Plaintiff’s left “wrist extension is [sixty] degrees and flexion is [sixty] degrees. . . . The thumb

CMC joint is tender to palpation” and right “wrist extension is [sixty] degrees and flexion is

[seventy] degrees . . . . The A1 pulley region of the thumb is tender. . . . The thumb CMC joint is

tender to palpation,” (R. 328–29). After Dr. Keschner performed locked right and left trigger

thumb release surgeries in March and April of 2017, respectively, he noted on April 5, 2017, that

Plaintiff displayed decreased range of motion of the right thumb MP and IP joints, tenderness to

the left thumb A1 pulley region, and decreased range of motion of the left thumb MP and IP

joints, (R. 444–45); and on April 24, 2017, that Plaintiff’s examination revealed residual range of

motion loss at the left thumb MP and IP joints, as well as in the right thumb MP and IP joints,

(R. 442–43).

Accordingly, because the ALJ failed to assign any weight to Dr. Keschner’s opinion or

provide an explanation as to why no weight was assigned, the ALJ failed to comply with the

treating physician rule.

c. The ALJ’s error was not harmless

The ALJ’s error in failing to assign weight to Dr. Keschner’s opinion was not harmless.

At the administrative hearing, the VE testified that an individual with Plaintiff’s age, education,

and the limitations assessed by the ALJ could perform Plaintiff’s past relevant work as a gate

attendant and serve in other sedentary roles including surveillance system monitor and call-out

operator, which require skills acquired in the claimant’s past relevant work but no additional

skills. (R. 21.) If such an individual were limited to less than occasional fingering and handling

with the bilateral hands, they could not perform any work. (R. 63.) In addition, if such an

individual were absent two or more days per month, or were off task more than ten percent of the

workday due to pain issues, they could not perform any work. (R. 60–61.) Because the ALJ

neither assigned any weight to Dr. Keschner’s medical opinion nor explained why no weight was

assigned, the Court cannot evaluate whether the ALJ properly determined Plaintiff’s capacity to

meet the fingering and handling limitations or properly evaluated whether Plaintiff could

perform any work depending on her need to be absent from work or off task as detailed by the

VE. Therefore, the ALJ’s error in discrediting the opinion of Plaintiff’s treating physician in this

regard was not harmless and requires remand. See Griffel v. Berryhill, No. 16-CV-1772, 2017

WL 4286254, at *10 (E.D.N.Y. Sept. 26, 2017) (holding that the ALJ’s failure to include a

treating physician’s uncontradicted opinion on the RFC determination was not harmless); see

also Lesterhuis, 805 F.3d at 88.4

Accordingly, because the ALJ’s violation of the treating physician rule was not harmless,

4 Because the Court finds that remand is proper on the basis that the ALJ erred in failing

to provide adequate justification for not crediting the opinion of Dr. Keschner, thereby failing to

abide by the treating physician rule, the Court does not address the arguments that the ALJ erred

by affording less weight to Dr. Asad’s opinion regarding Plaintiff’s manipulative limitations and

that the ALJ erred in disregarding Plaintiff’s hearing testimony. See Griffel v. Berryhill, No. 16-

CV-1772, 2017 WL 4286254, at *10 n.11 (E.D.N.Y. Sept. 26, 2017) (citing Foxman v.

Barnhart, 157 F. App’x 344, 347–48 (2d Cir. 2005)) (declining to address arguments presented

by the parties that were different from the bases underlying the Court’s decision to remand);

Christopher B. v. Saul, No. 19-CV-905, 2020 WL 5587266, at *20 (N.D.N.Y. Sept. 18, 2020)

(“[I]n light of the fact that the ALJ’s assessment of [the plaintiff’s] credibility is inextricably

intertwined with the ALJ’s evaluation of the treating physician, . . . the [c]ourt is unable to

conclude that the ALJ properly evaluated [the plaintiff’s] credibility.”); Daniel v. Astrue, No. 10-

CV-5397, 2012 WL 3537019, at *11 (E.D.N.Y. Aug. 14, 2012) (explaining that “[t]he ALJ’s

determination that [the plaintiff’s] allegations were inconsistent with the medical evidence was

tainted by the ALJ’s failure to properly evaluate the opinions of [the plaintiff’s] treating

physicians — a failure that would naturally have affected how the ALJ viewed the totality of the

medical evidence” (citing Sutherland v. Barnhart, 322 F. Supp. 2d 282, 291 (E.D.N.Y. 2004))).

the Court grants Plaintiff’s motion for remand. See Rodriguez v. Comm’r of Soc. Sec., No. 19-

CV-7062, 2021 WL 2219276, at *10–12 (E.D.N.Y. Mar. 29, 2021).

III. Conclusion

For the foregoing reasons, the Court grants Plaintiff’s motion for judgment on the

pleadings and denies the Commissioner’s cross-motion for judgment on the pleadings. The

Commissioner’s decision is vacated and this action is remanded for further administrative

proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is

directed to close this case.

Dated: September 12, 2022

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge