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T Racey L Osquadro v. Michael J. A Strue


September 21, 2012


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:


The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Plaintiff Tracey Michael Losquadro, Civil Procedure 12(c). Plaintiff opposes the ("plaintiff" or "Losquadro") brings this Commissioner's motion and cross-moves for action, pursuant to 42 U.S.C. § 405(g) of the judgment on the pleadings, alleging that the Social Security Act, challenging the decision Administrative Law Judge ("ALJ") erred by: of the Commissioner of Social Security (1) failing to give controlling weight to the ("defendant" or "Commissioner"), dated July opinions of plaintiff's treating physicians; (2) 30, 2010, partially denying the plaintiff's failing to properly consider plaintiff's application for Disability Insurance Benefits credibility; and (3) failing to properly ("DIB"). The Commissioner found that consider the opinion of the treating plaintiff became disabled on November 10, chiropractor. 2008, when the plaintiff's age category changed to an individual approaching For the reasons set forth below, the case is advanced age (20 C.F.R. § 404.1563). The remanded to the ALJ for further proceedings Commissioner found that, prior to the consistent with this Memorandum and Order. established onset date, plaintiff's residual In particular, given that (1) the ALJ afforded functional capacity allowed him to engage in little weight to the opinion of the treating unskilled sedentary work, which existed in chiropractor solely because he is a significant numbers in the national economy. chiropractor and (2) the Court would simply be speculating as to how the ALJ would have opined that plaintiff was totally disabled and otherwise weighed the chiropractor's opinion advised continued chiropractic treatment. (Id.) under the applicable factors pursuant to S.S.R. In August 2006, plaintiff also began receiving 06-03p, the case must be remanded to the ALJ cortisone injections. (Id. at 409.) for further consideration of the chiropractor's opinion as an "other source" under the In January 2008, Dr. Goldstein opined in a applicable factors. The Court finds the other letter that plaintiff remained permanently and arguments put forth by plaintiff, however, to totally disabled. (Id. at 535.) In February be without merit. 2008, Dr. Goldstein assessed that in an 8-hour workday, plaintiff could sit for 0-1 hour,

I. BACKGROUND stand/walk 0-1 hour, and lift/carry up to 5 pounds occasionally. (Id. at 544-46.) He also

A. Facts opined that plaintiff could not push, pull, kneel, bend or stoop and that plaintiff's pain

The following summary of facts is based was often severe enough to interfere with upon the administrative record ("AR") as attention and concentration. (Id.) On October developed by the ALJ. A more exhaustive 8, 2008, Dr. Goldstein again reported that recitation of the facts is contained in the plaintiff was unable to work and remained parties' submissions to the Court and is not disabled (Id. at 605) and reiterated, in August repeated herein. 2009, that plaintiff was totally disabled. (Id. at 24.)

1. Medical Evidence

ii. Dr. James Liguori

a. Treating Physicians

Dr. Liguori, a neurologist, first examined

i. Dr. Mitchell Goldstein plaintiff on October 26, 2004, and an additional eight times ending on March 7,

Dr. Goldstein, plaintiff's orthopedist, 2007. (Id. at 402-03, 355-56, 352-53, 349-began treating plaintiff on February 28, 2006, 350, 344-45,341, 338-39, 489, 492-93.) Dr. following a work injury four days earlier. (AR Liguori diagnosed cervical and lumbosacral 415.) He examined plaintiff on 20 separate radiculopathy. (Id. at 403.) He confirmed his occasions from March 23, 2006, through diagnoses in subsequent examinations with October 8, 2008, on a nearly monthly basis. the plaintiff. (Id. at 376-80.) From February (Id. at 404-13, 530-34, 570-72, 593-605.) 2005 to January 2006, he administered trigger Plaintiff complained of right shoulder and point injections to the left cervical spine. (Id. lower back pain with numbness and tingling at 380-85.) In March 2006, Dr. Liguori down to his left leg. (Id.)Physical opined that plaintiff was totally disabled from examination led Dr. Goldstein to report that his work duties. (Id. at 367.) plaintiff had low back pain, left sciatica and myofascitis, right shoulder tendonitis, and a Dr. Liguori's follow-up examination in right arm strain. (Id. at 416.) He July 2006 showed that plaintiff still recommended a therapy program. (Id.) complained of neck pain radiating to his right shoulder, lower back pain radiating to his left In March 2006, Dr. Goldstein noted that lower extremity, and left leg numbness. (Id. at plaintiff was additionally having tremors, and 349-50.) Physical examination revealed diagnosed a cervical and lumbosacral sprain muscle spasm in the cervical and lumbosacral and right shoulder tendonitis. (Id. at 413.) He spine and decreased pinprick sensation in his "markedly limited" in a few tasks, but only left lower back and lower extremity. (Id.) "moderately" or "mildly limited" in many others. (Id.)

On January 16, 2007, Dr. Liguori added an additional diagnosis of questionable early On May 5, 2010, Dr. Gadaleta completed Parkinson's disease. (Id. at 373-74.) an assessment that indicated moderate limitations in plaintiff's ability to perform In the period between April 14, 2006 and several work-related tasks and opined that March 7, 2007, Dr. Liguori completed several plaintiff was unable to work. (Id. at 696-97.) Workers' Compensation Board forms reporting his diagnoses of radiculopathy and iv. Dr. Howard Rosner his opinion that plaintiff was totally disabled from all work duties. (Id. at 358, 337, 340, Dr. Howard Rosner, a chiropractor who 342, 348, 351, 354, 494.) treated plaintiff one to three times a week since November 2004, assessed the patient in On August 27, 2007, Dr. Liguori assessed January 2007. (Id. at 420-32.) In an undated that, in an 8-hour workday, plaintiff could sit note, Dr. Rosner wrote that patient remained and stand/walk for 15 minutes at a time and totally disabled due to spinal disc bulges and less than 2 hours total. (Id. at 488.) herniations with subsequent leg and arm radiculopathy. (Id. at 559.) He reported that, On February 12, 2008, Dr. Liguori in an 8-hour workday, plaintiff could sit for assessed that, in an 8-hour workday, plaintiff less than 6 hours, stand/walk less than 2 could sit for 0-1 hour, and stand/walk for 0-1 hours, and lift/carry up to 10 pounds hour. (Id. at 563.) occasionally. (Id. at 429.) He also opined that plaintiff had decreased grip and dexterity, and iii. Dr. Dominic Gadaleta limited ability to push and pull with his upper extremities. (Id.)

Dr. Gadaleta, a psychiatrist, completed a questionnaire in May 2007, indicating that he v. Dr. Jasjit Singh first began treating plaintiff in September 2006. (Id. at 444.) He reported that plaintiff On March 6, 2009, Dr. Singh, a was extremely depressed, had a history of neurologist, indicated that the plaintiff depression, and maintained symptoms of continued to get chiropractic care for his insomnia, anxiety, fearfulness, hopelessness cervical-lumbosacral radicular complaints and and anhedonia. (Id.) He diagnosed patient a request for acupuncture was made to relieve with major depressive disorder and secondary the plaintiff's severe pain. (Id. at 573.) On panic attacks with agoraphobia, and noted that June 5, 2009, Dr. Singh assessed cervical and patient was easily distracted, self-isolating, lumbosacral radiculitis. (Id. at 584.) Dr. Singh and limited in concentration, adaptation, and continued treating plaintiff until March 9, social interaction. (Id. at 448.) Dr. Gadaleta 2010, and administered trigger point opined that plaintiff could not function in a injections on three occasions. (Id. at 684-86.) work setting. (Id.)

b. Diagnostic Tests

On February 12, 2008, Dr. Gadaleta assessed plaintiff's mental residual functional In November 2004, an MRI of plaintiff's capacity to perform work-related tasks. (Id. at cervical spine revealed subligamentous 551-58.) He reported that plaintiff was posterior disc herniations impinging on the anterior aspect of the spinal canal, but there disc herniation with encroachment upon the was no evidence of spinal abnormality. (Id. at thecal sac and displacement of the left nerve 300.) An MRI of the brain was normal. (Id. at root, shallow right disc herniation with 388.) EMG and NCV studies of the upper encroachment, small central posterior extremities were within normal limits. (Id. at herniations, and a mild bulging disc. (Id. at 396-98.) However, EMG and NCV studies of 582.) An MRI of the cervical spine on June the lower extremities in December 2004 20, 2009 revealed disc degeneration and showed radiculopathy of the left lower shallow desiccated disc herniations extremities. (Id. at 389.) accompanied by bony spurring and mild bone narrowing. (Id. at 591.)

An MRI in January 2005 revealed lumbar lordosis, disc herniations, and a c. Consulting Physicians subligamentous herniation. (Id. at 301.) i. Dr. Tasneen Sulaiman

An EMG performed in January 2006 revealed bilateral mild carpal tunnel In February 2007, Dr. Sulaiman, an syndrome. (Id. at 377.) An EKG performed in internal medicine physician, conducted a one-February 2006 revealed nonspecific T-wave time consultative examination on behalf of fluttering, and was considered borderline and the Social Security Administration ("SSA"). an echocardiogram showed adequate left (Id. at 437.) He diagnosed plaintiff with ventricular function and mild mitral cervical and lumbar radiculitis and histories regurgitation. (Id. at 305, 322, 478.) of hypertension, anxiety and depression. (Id.)

A physical examination revealed that plaintiff An MRI performed in March 2006 could not squat and that he experienced showed significant chronic acromioclavicular, limitations in his range of motion in the joint hypertrophy and rotator cuff tendonitis, cervical and lumbar spine. (Id. at 435-36.) but no signs of a labral tear, fracture, or However, Dr. Sulaiman noted that plaintiff dislocation. (Id. at 335.) could walk on heels and toes without difficulty, had a normal gait, required no An MRI performed in April 2006 revealed assistance changing or getting on and off the reversal of the normal cervical curvature, examination table, and had no difficulty cervical spondylolisthesis and discogenic sitting, standing, or walking. (Id.) Dr. changes, but no evidence of spinal cord Sulaiman concluded that, although plaintiff compression. (Id. at 336.) Electrodiagnostic had mild difficulty bending, he maintained the studies revealed evidence of radiculopathy of capacity for more than moderate exertion. the lower extremities, however, the upper (Id.) extremities were within normal limits. (Id. at 359-65.) In March 2007, a State Agency medical consultant assessed that, in an 8-hour VNG testing on April 27, 2009 was workday, plaintiff could sit up to 6 hours, abnormal and consistent with possible central stand/walk up to 6 hours, and lift/carry up to pathology, possible benign paroxysmal 20 pounds occasionally and 10 pounds positional vertigo, and possible peripheral frequently. (Id. at 438-43.) He also noted that vestibular disorder. (Id. at 575-81.) plaintiff could bend, stoop, crouch, kneel and climb occasionally with no postural, An MRI of the lumbar spine in May 2009 manipulative, communicative or showed a moderate-sized left posterolateral environmental restrictions. (Id.)

ii. Dr. A. Stockton v. Dr. Erlinda Austria

In June 2007, Dr. Stockton, a State Dr. Austria, a consulting SSA surgeon, Agency psychological consultant, discussed examined plaintiff on May 24, 2010. (Id. at plaintiff's mental residual functional capacity 711-21.) She diagnosed plaintiff with injuries to perform work-related tasks with Dr. to the lower back, neck and right shoulder, Gadaleta. (Id. at 453-66.) Dr. Stockton herniated and bulging cervical and lumbar concluded (in a Psychiatric Review discs, and a right rotator cuff tear. (Id.) In Technique Form) that plaintiff did not meet June 2010, she assessed that, in an 8-hour any listed disability. (Id. at 463.) He workday, plaintiff could sit for 3 hours, stand explained that plaintiff maintained moderate for 3 hours, walk for 3 hours, and lift/carry 21 limitations maintaining social functioning, to 50 pounds occasionally and up to 10 concentration, persistence, and pace and had pounds frequently. (Id.) She also noted that one or two deterioration episodes, of extended plaintiff could occasionally climb duration. (Id.) However, plaintiff was not stairs/ramps, balance, stoop, kneel, crouch, significantly limited in any areas of crawl, push, pull, reach, and could frequently understanding or memory, carrying out use hands to handle, finger, and feel. (Id.) simple instructions, working in coordination However, since Dr. Austria's report was with others without distraction, and socially contradictory and indicated less restriction interacting with the general public. (Id. at than the rest of the record, the ALJ gave it 467-69.) little weight. (Id.)

iii. Dr. Shapiro vi. Dr. Sharon Grand

In July 2009, Dr. Shapiro, a physician Due to inconsistencies between the reports practicing in the same medical group as Dr. of Dr. Gadaleta and State Agency Goldstein, provided an orthopedic psychological consultants, an interrogatory consultation. (Id. at 698-99.) He reported an was sent to Dr. Grand, a clinical psychologist impression of lumbago and an opinion of and medical expert, in May 2010. (Id. at 25.) partial, temporary disability. (Id.) Dr. Grand indicated that plaintiff has Major Depressive Disorder, but concluded that his iv. Dr. Adam Hammer residual mental functioning capacity allowed him to maintain a simple, low stress job. (Id.

In October 2007, Dr. Hammer, a pain 25-26.) She also noted that it was unclear management specialist, examined plaintiff. whether Dr. Gadaleta's opinion, which (Id. at 536-39.) Dr. Hammer diagnosed indicated the greatest limitations to the lumbago, lumbar facet arthropathy, herniated plaintiff's functional capacity, was based on discs, lumbar radiculopathy, cervicalgia, and physical or psychological considerations. (Id.) cervical facet arthropathy. (Id. at 538.) He discussed treating options of oral medications, d. Plaintiff's Testimony physical therapy, exercise, and interventional spinal procedures. (Id. at 539.) At the February 14, 2008 hearing, plaintiff testified that he had constant neck pain, In August 2009, Dr. Hammer examined headaches, lower back pain that radiated to plaintiff and found temporary, partial his hips, and numbness in his left leg. (Id. at disability. (Id. at 25.) 65-67, 72.) He also testified that, upon performing certain activities, he experienced right shoulder pain, tremors, and body on the pleadings on November 8, 2011. shaking. (Id.)Plaintiff described his Plaintiff filed a cross-motion for judgment on medications, injection treatments, side- the pleadings and an opposition to effects, and his back and occasional neck defendant's motion on December 6, 2011. brace. (Id. at 67-69, 73, 80-81.) He testified Defendant filed a memorandum in further that he could stand/walk for 15-30 minutes support of its motion for judgment on the each and lift less than 5 pounds. (Id. at 73.) pleadings and in opposition to plaintiff's cross-motion on December 20, 2011. On At the May 18, 2010 hearing, plaintiff December 27, 2011, plaintiff filed a reply in testified that he could sit/stand for 15-20 further support of its cross-motion for minutes each, lift 5-8 pounds, and that his judgment on the pleadings and in opposition whole body trembled. (Id. at 45-46.) He also to defendant's motion. The Court has testified that he felt depressed and had panic carefully considered the parties' arguments. attacks daily. (Id. at 47.) For the reasons set forth below, the Court denies defendant's motion for judgment on

B. Procedural History the pleadings and plaintiff's cross-motion for judgment on the pleadings and remands the

On September 29, 2006, plaintiff filed for case to the ALJ for further proceedings DIB, alleging disability since February 24, consistent with this Memorandum and Order. 2006. (AR 181.) The application was denied. (Id. at 83.) A hearing was held before an II.


Administrative Law Judge ("ALJ") on February 14, 2008. (Id. at 60-82.) On March A. Legal Standard 6, 2008, the ALJ issued a written decision finding that plaintiff was not disabled. (Id. at 1. Standard of Review 84-96.) On January 23, 2009, the Appeals Council granted plaintiff's request for review A district court may only set aside a and consolidated the claim with a later claim determination by an ALJ that is "based upon filed on October 8, 2008. (Id. at 97-101.) On legal error" or "not supported by substantial April 17, 2009, the Appeals Council vacated evidence." Balsamo v. Chater, 142 F.3d 75, the ALJ decision, remanded for further 79 (2d Cir. 1998) (citing Berry v. Schweiker, administrative proceedings, and directed the 675 F.2d 464, 467 (2d Cir. 1982)). The ALJ to give further consideration to treating Supreme Court has defined "substantial source opinions, medical experts, claimant's evidence" in Social Security cases as "more subjective complaints, and claimant's residual than a mere scintilla" and that which "a functional capacity. (Id. at 102-06.) A hearing reasonable mind might accept as adequate to was held on May 18, 2010, by ALJ Rayner. support a conclusion." Richardson v. Perales, (Id. at 38-59.) On July 30, 2010, the ALJ 402 U.S. 389, 401 (1971) (quoting Consol. issued a partially favorable decision finding a Edison Co. v. NLRB, 305 U.S. 197, 229 disability onset date of November 10, 2008, (1938)); Quinones v. Chater, 117 F.3d 29, 33 the day before plaintiff turned 50 years of age. (2d Cir. 1997) (defining substantial evidence (Id. at 17-37.) Plaintiff appealed the decision as "such relevant evidence as a reasonable to the Appeals Council, which was denied on mind might accept as adequate to support a February 18, 2011. (Id. at 1-5.) conclusion" (internal quotations and citations omitted)). Furthermore, "it is up to the Plaintiff filed this action on April 13, agency, and not th[e] court, to weigh the 2011. Defendant filed a motion for judgment conflicting evidence in the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d age, education, and work experience, engage Cir. 1998). If the court finds that there is in any other kind of substantial gainful work substantial evidence to support the which exists in the national economy . . . ." 42 Commissioner's determination, the decision U.S.C. § 1382c(a)(3)(B). must be upheld, even if there is substantial evidence for the plaintiff's position. Yancey v. The Commissioner has promulgated Apfel, 145 F.3d 106, 111 (2d Cir. 1998); regulations establishing a five-step procedure Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. for evaluating disability claims. See 20 C.F.R 1991). "Where an administrative decision §§ 404.1520, 416.920. The Second Circuit rests on adequate findings sustained by has summarized this procedure as follows: evidence having rational probative force, the court should not substitute its judgment for The first step of this process requires that of the Commissioner." Yancey, 145 F.3d the [Commissioner] to determine at 111; see also Jones, 949 F.2d at 59 whether the claimant is presently (quoting Valente v. Sec'y of Health & Human employed. If the claimant is not Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). employed, the [Commissioner] then determines whether the claimant has In order to obtain a remand based on a "severe impairment" that limits her additional evidence, a plaintiff must present capacity to work. If the claimant has new evidence that: "(1) is 'new' and not such an impairment, the merely cumulative of what is already in the [Commissioner] next considers record[;]" (2) is material, in that it is "relevant whether the claimant has an to the claimant's condition during the time impairment that is listed in Appendix period for which benefits were denied," 1 of the regulations. When the probative, and presents a reasonable claimant has such an impairment, the possibility that the additional evidence would [Commissioner] will find the have resulted in a different determination by claimant disabled. However, if the the Commissioner; and (3) was not presented claimant does not have a listed earlier due to good cause. Lisa v. Sec'y of the impairment, the [Commissioner] Dep't of Health & Human Servs., 940 F.2d must determine, under the fourth 40, 43 (2d Cir. 1991). step, whether the claimant possesses the residual functional capacity to

2. The Disability Determination perform her past relevant work. Finally, if the claimant is unable to

A claimant is entitled to disability benefits perform her past relevant work, the under the SSA if the claimant is unable "to [Commissioner] determines whether engage in any substantial gainful activity by the claimant is capable of performing reason of any medically determinable any other work. physical or mental impairment which can be expected to result in death or which has lasted Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. or can be expected to last for a continuous 1999) (citing Perez v. Chater, 77 F.3d 41, 46 period of not less than twelve months." 42 (2d Cir. 1996)). The claimant bears the U.S.C. § 1382c(a)(3)(A). An individual's burden of proof with regard to the first four physical or mental impairment is not steps; the Commissioner bears the burden of disabling under the SSA unless it is "of such proving the last step. Brown, 174 F.3d at 62. severity that he is not only unable to do his previous work but cannot, considering his

Case 2:11-cv-01798-JFB Document 22 Filed 09/21/12 Page 8 of 16 PageID #: 867

The Commissioner "must consider" the § 404.1520(b). Substantial work activity is following in determining a claimant's work activity that involves doing significant entitlement to benefits: "(1) objective medical physical or mental activities, 20 C.F.R. facts; (2) diagnoses or medical opinions based § 404.1572(a), and gainful work activity is on such facts; (3) subjective evidence of pain work usually done for pay or profit, 20 C.F.R. or disability testified to by the claimant or § 404.1572(b). Individuals who are employed others; and (4) the claimant's educational are engaging in substantial gainful activity. In background, age, and work experience." Id. this case, the ALJ determined that plaintiff (citing Mongeur v. Heckler, 722 F.2d 1033, had not engaged in any substantial gainful 1037 (2d Cir. 1983) (per curiam)). activity since the alleged onset date of February 24, 2006. (Id. at 17, 19.) Substantial

B. Application evidence supports this finding, and plaintiff does not challenge its correctness.

Plaintiff argues that the ALJ's decision is not supported by substantial evidence and is 2. Severe Impairment the result of legal error. Specifically, the plaintiff argues that the ALJ erred by: (1) If the claimant is not employed, the ALJ failing to apply the "treating physician rule" then determines whether the claimant has a to the medical opinions of Dr. Goldstein, Dr. "severe impairment" that limits his capacity Liguori, and Dr. Gadaleta because the ALJ to work. An impairment or combination of did not give those opinions "controlling impairments is "severe" if it significantly weight"; (2) failing to properly consider limits an individual's physical or mental plaintiff's credibility; and (3) failing to ability to perform basic work activities. 20 properly consider the opinion of the treating C.F.R. § 404.1520(c); see also Perez v. chiropractor, Dr. Rosner. Chater, 77 F.3d 41, 46 (2d Cir.1996). An impairment or combination of impairments is As set forth below, this Court concludes "not severe" when medical and other that the ALJ gave sufficient reasons for his evidence establishes only a slight abnormality decision not to give controlling weight to the or a combination of slight abnormalities that medical opinions of the treating physicians. would have no more than a minimal effect on Additionally, this Court finds that sufficient an individual's ability to work. See 20 C.F.R. evidence supports the ALJ's determination § 404.1521. The ALJ in this case found that that the plaintiff's subjective testimony as to plaintiff had the following severe the intensity, persistence, and limiting effects impairments: "degenerative disc disease of of his symptoms was not persuasive. the cervical and lumbosacral spines, cervical However, this Court finds that the ALJ erred and lumbar radiculopathy, right shoulder in giving "little weight" to the opinion of tendonitis, a gastroesophagael reflux disorder plaintiff's chiropractor solely on the grounds and a depressive disorder." (AR 20.) that "the opinion of a chiropractor does not Substantial evidence supports this finding, constitute evidence from an acceptable and plaintiff does not challenge its medical source." (AR 22.) correctness.

1. Substantial Gainful Activity 3. Listed Impairment

At step one, the ALJ must determine If the claimant has such an impairment, whether the claimant is presently engaging in the ALJ next considers whether the claimant substantial gainful activity. 20 C.F.R. has an impairment that is listed in Appendix 1 of the regulations. When the claimant has determines whether the claimant is capable of such an impairment, the ALJ will find the adjusting to performing any other work. 20 claimant disabled without considering the C.F.R. § 404.1520(g). To support a finding claimant's age, education, or work that an individual is not disabled, the SSA has experience. 20 C.F.R. § 404.1520(c). In this the burden of demonstrating that other jobs case, the ALJ found that plaintiff's exist in significant numbers in the national impairments did not meet any of the listed economy that claimant can perform. 20 impairments in the Listing of Impairments, 20 C.F.R. § 404.1560(c); see also Schaal v. C.F.R. Part 404, Subpart P, Appendix 1. (AR Apfel, 134 F.3d 496, 501 (2d Cir. 1998). 20.) The ALJ noted that evidence has not shown "nerve root compression with a neural- In this case, the ALJ considered plaintiff's anatomical distribution of motor loss, muscle age, education, work experience, and residual weakness and sensory and reflex loss; of functional capacity, and found that prior to spinal arachnoiditis, or lumbar spinal stenosis November 10, 2008, plaintiff remained resulting in claudication, as required to meet a capable of performing unskilled sedentary listed impairment. (Id.) Substantial evidence work that existed in significant numbers in the supports this finding and plaintiff does not national economy. (AR 34.) However, challenge its correctness. beginning on November 10, 2008, plaintiff's age category changed and he became

4. Residual Functional Capacity and Past "disabled" under Medical-Vocational Rule Relevant Work 201.14 because his vocational skills were non-transferable to other occupations. (Id.) In

If the claimant does not have a listed reaching this conclusion, the ALJ rejected the impairment, the ALJ determines the opinions of the treating physicians, Dr. claimant's residual functional capacity, in Goldstein, Dr. Liguori, and Dr. Gadaleta, and light of the relevant medical and other relied on the medical evidence of consulting evidence in the claimant's record, in order to physicians, specialists, and experts. (Id. at determine the claimant's ability to perform 27.) The ALJ also found that the plaintiff's his past relevant work. 20 C.F.R. allegations as to the intensity, persistence, and § 404.1520(e). The ALJ then compares the limiting effects of his symptoms were not claimant's residual functional capacity to the persuasive. (Id.) Additionally, the ALJ physical and mental demands of his past afforded "little weight" to the opinion of relevant work. 20 C.F.R. § 404.1520(f). If the plaintiff's chiropractor on the grounds that claimant has the ability to perform his past "the opinion of a chiropractor does not relevant work, he is not disabled. Id. In this constitute evidence from an acceptable case, the ALJ found, as discussed further medical source." (Id. at 22.) infra, that plaintiff does not have the residual functional capacity to perform his past a. Treating Physician Rule relevant work as a construction laborer. (AR 28.) Substantial evidence supports this finding The Commissioner must give special and plaintiff does not challenge its evidentiary weight to the opinion of the correctness. treating physician. See Clark, 143 F.3d at 118.

The "treating physical rule," as it is known,

5. Other Work "mandates that the medical opinion of a claimant's treating physician [be] given

At step five, if the claimant is unable to controlling weight if it is well supported by perform his past relevant work, the ALJ the medical findings and not inconsistent with other substantial record evidence." Shaw v. and cannot work, should be controlling. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see However, a "treating physician's statement Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. that the claimant is disabled cannot itself be 1999); Clark, 143 F.3d at 118; Schisler v. determinative." See Snell, 177 F.3d at 133. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The Their opinions must be supported by clinical rule, as set forth in the regulations, provide: and diagnostic tests and must not be inconsistent with other aspects of the record. Generally, we give more weight to Here, the ALJ described the lack of clinical opinions from your treating sources, and diagnostic techniques to support their since these sources are likely to be the opinions of complete disability and further medical professionals most able to highlighted other medical evidence that was provide a detailed, longitudinal picture inconsistent with their assessments. of your medical impairment(s) and may bring a unique perspective to the The Commissioner does not dispute that medical evidence that cannot be plaintiff suffers from impairments of cervical obtained from the objective medical and lumbosacral radiculopathy. However, the findings alone or from reports of ALJ correctly noted that MRI, EMG, and individual examinations, such as EKG tests do not support a diagnosis of nerve consultative examinations or brief root impingement in the cervical or hospitalizations. If we find that a lumbosacral spine or a severe impairment of treating source's opinion on the the upper extremity. If the ALJ had ignored issue(s) of the nature and severity of diagnostic tests that supported the physicians' your impairment(s) is well-supported assessments, there could be ground for by medically acceptable clinical and remand. See Reyes v. Barnhart, 226 F. Supp. laboratory diagnostic techniques and 2d 523, 529-30 (S.D.N.Y. 2002). However, is not inconsistent with the other here, the ALJ considered all medical evidence substantial evidence in your case available and determined that the alleged record, we will give it controlling severity of the medical impairment was weight. unsupported.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ also cannot reject a treating physician's opinion on the sole basis that it

Furthermore, while treating physicians conflicts with the physician's own clinical may share their opinion concerning a patient's findings. See Balsamo, 142 F.3d at 80. Here, inability to work and the severity of disability, however, the ALJ did not reject the treating the ultimate decision of whether an individual physicians' opinions simply because of a lack is disabled is "reserved to the Commissioner." of supporting clinical and diagnostic tests, but

20 C.F.R. §§ 404.1527(e)(1). See Snell v. also on the basis of inconsistencies with other Apfel, 177 F.3d 128, 133 (2d Cir. 1999) significant medical evidence. The ALJ ("[t]he Social Security Administration explained that the reports of the treating considers the data that physicians provide but physicians were inconsistent with the medical draws its own conclusions as to whether those reports of Dr. Sulaiman, Dr. Stockton, Dr. data indicate disability.") Singh, and Dr. Hammer, and other State

Agency consultants, who reported that In this case, plaintiff argues that the plaintiff was not totally disabled and was opinions of Dr. Goldstein, Dr. Liguori, and capable of performing sedentary work.

Dr. Gadaleta stating that plaintiff is disabled

With respect to Dr. Gadaleta, the record Commissioner must apply various factors to was unclear whether Dr. Gadaleta was decide how much weight to give the opinion. assessing plaintiff's functional limitations See Shaw, 221 F.3d at 134; Clark, 143 F.3d at from a psychiatric perspective or simply 118. These factors include: (i) the frequency documenting plaintiff's portrayal of his of examination and length, nature, and extent physical limitations due to back pain. On May of the treatment relationship, (ii) the evidence 15, 2002, Dr. Gadaleta wrote that plaintiff's in support of the opinion, (iii) the opinion's back pain caused his inability to function. consistency with the record as a whole; (iv) (AR 448.) On February 12, 2008, he stated whether the opinion is from a specialist; and that plaintiff was unable to work due to back (v) other relevant factors. see Clark, 143 F.3d pain (Id. at 558) and that his back pain at 118 (citing 20 C.F.R §§ 404.1527(d)(2), superseded his ability to work. (Id. at 556). 416.927(d)(2)). When the Commissioner chooses not to give the treating physician's In any event, even assuming arguendo opinion controlling weight, he must "give that Dr. Gadaleta's opinion was referring to good reasons in his notice of determination or plaintiff's functional limitations from a decision for the weight [he] gives [the psychiatric perspective (rather than simply claimant's] treating source's opinion. Clark, documenting plaintiff's statement regarding 143 F.3d at 118 (quoting 20 C.F.R physical limitations), any opinion that §§ 404.1527(d)(2), 416.927(d)(2)); see also, plaintiff was completely unable to work from e.g., Perez v. Astrue No. 07-cv-958 (DLI), a psychological standpoint was also 2009 WL 2496585, at *8 (E.D.N.Y Aug. 14, inconsistent with the assessments of Dr. 2009) ("Even if [the treating physician's] Austria and Dr. Grand. Dr. Austria believed opinions do not merit controlling weight, the that plaintiff was capable of light work, which ALJ must explain what weight she gave those demands greater exertion than sedentary opinions and must articulate good reasons for work. Dr. Grand, a psychiatric medical expert not crediting the opinions of a claimant's who reviewed Dr. Gadaleta's medical treating physician."); Santiago v. Barnhart, findings, opined that plaintiff could maintain 441 F. Supp. 2d 620, 627 (S.D.N.Y 2006) a low stress job. (Id. at 704.) Dr. Grand noted ("Even if the treating physician's opinion is that the medical findings did not include any contradicted by substantial evidence and is mention of the frequency and severity of thus not controlling, it is still entitled to plaintiff's alleged panic attacks, and assessed significant weight because the treating source no limitations in plaintiff's ability to is inherently more familiar with a claimant's understand, remember, and carry out simple medical condition than are other sources."). A instructions. (Id. at 700, 705.) failure by the Commissioner to provide "good reasons" for not crediting the opinion of a Thus, sufficient evidence in the record treating physician is a ground for remand. See supports the ALJ's decision that the treating Snell, 177 F.3d at 133. physicians' opinions were not entitled to controlling or even considerable weight. Losquadro argues that, even if the ALJ properly determined that the treating

b. Giving Reasons and Weighing the physicians' opinions were not entitled to Evidence controlling weight, the ALJ failed to indicate his reasons for that determination and failed

If the opinion of the treating physician as to specify how much weight he afforded to to the nature and severity of the impairment is the treating physicians' opinions. However, not given controlling weight, the this Court cannot agree. After providing a detailed description of the medical reports and ALJ clearly stated his reasons for giving opinions of the treating physicians, the controlling weight to the report of Dr. Grand: assessments of consultative examiners, and "As the medical expert's opinion is supported the diagnostic test results, the ALJ explained: by substantial evidence in the record, it is adopted by the undersigned in finding that the Based on the claimant's testimony claimant -- despite a severe mental impairment regarding his daily activities, the -- has remained mentally capable of findings of Dr. Sulaiman, a performing simple, low stress, work." (Id. at consultative examiner (Exhibit 10F); 26.) The ALJ explained that Dr. Grand the assessment of State Agency confirmed that Dr. Gadaleta's functional medical consultant (Exhibit 11F) and assessment was not "adequately or clearly the opinion of Dr. Adam Hammer, a explained and not supported by the overall pain management specialist who record based on psychiatric symptoms alone" examined the plaintiff in August 2009 and that it was "unclear whether the doctor's and found temporary, partial answers were based on physical or disability (Exhibits 39F & 41F), the psychological limitations." (Id. at 26.) The Administrative Law Judge finds that ALJ further elaborated: the claimant has remained exertionally capable of sedentary In making this finding, the work. The opinions/assessments of undersigned has considered all Dr. Liguori and Dr. Goldstein, symptoms and the extent to which treating sources, are not supported by these symptoms can reasonably be the objective medical findings on accepted as consistent with the diagnostic studies such as MRI's of objective medical evidence and other the claimant's cervical and evidence, based on the requirements lumbosacral spine throughout the of 20 CFR 404.1529 and SSRs 96-4p record, which showed no evidence of and 96-7p. The undersigned has also nerve root impingement or considered opinion evidence in compromise and electrodiagnostic accordance with the requirements of studies of the claimant's upper 20 CFR 404.1527 and SSRs 96-2p, extremities, which were within 96-5p 96-6p and 06-3p. normal limits with no evidence of cervical radiculopathy -- which both (Id. at 26.)

Dr. Liguori and Dr. Goldstein diagnosed and obviously relied upon The ALJ's analysis in this case is in formulating their functional distinguishable from the deficient analyses in capacity assessments. the cases cited by the plaintiff. For example, in Burgess v. Astrue, the ALJ did not credit a (AR 25.) treating physician's opinion because he found that the treating physician's opinion was not The ALJ further explained his decision supported by objective evidence. 537 F.3d that the functional assessment of Dr. Gadaleta 117, 130-31 (2d Cir. 2008). The treating was not entitled to controlling weight. To physician's opinion was, however, plainly resolve the conflicting medical evidence supported by an MRI report. Id. Accordingly, between Dr. Gadaleta and State Agency the Second Circuit vacated and remanded the psychological consultants, an interrogatory ALJ decision on the grounds that the ALJ had was sent to Dr. Grand, a medical expert. The failed to give good reasons for disregarding the treating physician's opinion. Id. Whereas Additionally, when a claimant's statements the ALJ deciding Burgess erred by ignoring about her pain and disability suggest a greater clearly probative evidence, here, the ALJ has severity of impairment than the objective considered all relevant clinical and diagnostic medical evidence shows by itself, the tests in the record. Similarly, in Reyes v. Commissioner considers relevant factors such Barnhart, the ALJ erred in asserting that the as the following: the claimant's daily treating physician's assessments were activities; the nature, location, onset, duration, unsupported by clinical findings when, in frequency, and intensity of her pain; factors fact, the treating physicians' conclusions were that precipitate or aggravate claimant's pain based upon and consistent with the clinical or disability; the type, dosage, effectiveness, tests, CT scans, X-rays, and other exams of and side effects of medication; any other the plaintiff. 226 F. Supp 2d at 529. Here, by treatment; and any other measures the contrast, sufficient evidence supported the claimant used to relieve pain or other ALJ's determination that the diagnostic tests symptoms. 20 C.F.R. §§ 404.1529(c), did not support the assessments of the treating 416.929(c); S.S.R. 96--7p. physicians. Additionally, in Balsamo v. Chater, the ALJ erred because he did not "cite Here, the ALJ applied the legal standard any medical opinion to dispute the treating for considering the plaintiff's subjective physicians' conclusions." 142 F.3d 75 at 81. testimony and delineated the two-step process Here, however, the ALJ discusses, at length, for evaluating the intensity, persistence, and the numerous consulting physicians' opinions, limiting effects of plaintiff's symptoms. (Id. the medical expert testimonies, and the at 26.) The ALJ concluded: diagnostic tests that are inconsistent with the conclusions of the treating physicians. After careful consideration of the evidence, the undersigned finds that Thus, the ALJ has provided a sufficient the claimant's medically determinable and persuasive explanation for giving little impairments could reasonably be weight to the opinions of the treating expected to cause the alleged physicians. symptoms; however, the claimant's statements concerning the intensity,

c. Subjective Testimony persistence and limiting effects of these symptoms were not persuasive

Aside from objective medical facts, the to the extent they were inconsistent ALJ must consider subjective evidence of with the objective medical findings. pain and disability in his "severity" analysis, see Mongeur, 722 F.2d at 1037, including (Id. at 27.) evidence from non-medical sources such as statements or reports from the claimant and The ALJ proceeded to indicate the testimony from relatives. See 20 C.F.R. specific inconsistencies between the §§ 404.1529(a), 404.1513(d)(4). Subjective plaintiff's subjective testimony and the symptoms, however, are insufficient to medical evidence concerning plaintiff's motor establish a person's disability under the SSA and sensory capabilities. The ALJ also unless there are medical signs and laboratory showed how the plaintiff's testimony was findings showing that a medical impairment inconsistent with the residual functional could reasonably be causing the pain or other capacity assessments of the treating symptoms. S.S.R. 96--7p; see also 20 C.F.R. physicians, and highlighted various diagnostic §§ 404.1529(d)(1), 416.929(d) (1). tests that did not support symptoms to the extent alleged by the patient. Under the the treatment and evaluation functions guidelines established by S.S.R. 96--7p, the previously handled primarily by physicians ALJ does not need to give great weight to the and psychologists." S.S.R. 06-03p. plaintiff's subjective testimony or give credence to the alleged severity of the In assessing a chiropractor's opinion, the symptoms and their limiting effects when it is ALJ does not need to apply the treating unsupported by the record. Here, the ALJ physician rule and afford controlling weight considered the plaintiff's subjective to the chiropractor's opinion. See Diaz v. testimony, and sufficient evidence in the Shalala,59 F.3d 307, 313 (2d Cir. 1995). record supports the ALJ's determination that However, the ALJ must afford some weight to plaintiff was not disabled to the extent a treating chiropractor's assessment. alleged. Kostzenskie v. Astrue, 07-CV-1320, 2009 U.S. Dist. LEXIS 66047, at *9 (N.D.N.Y. d. Chiropractor July 30, 2009) (citing Mongeur, 722 F.2d at 1039 n.2).

However, the ALJ erred by giving "little weight" to the opinion of Dr. Rosner, In determining how much weight to afford plaintiff's chiropractor, solely on the grounds a source listed as "other" under the that he is a chiropractor. When assessing a regulations, the ALJ may consider: (i) how claimant's disability, the ALJ performs a two- long the source has known plaintiff and step analysis. In step one, plaintiff must show frequency of treatment, (ii) how consistent the a medically determinable impairment, which opinion is with other evidence; (iii) the degree must be supported by evidence from to which the source presents relevant "acceptable medical sources." 20 C.F.R. evidence to support an opinion; (iv) how well § 404.1513(a). In step two, the ALJ must the source explains the opinion; (v) whether assess the severity and functional limitations the source has a specialty or area of expertise of such impairments, and considers evidence related to the individual's impairment; and from "other sources," in addition to (vi) any other factors that tend to support of "acceptable medical sources." 20 C.F.R. refute the opinion. See S.S.R. 06-03p § 404.1513(d); Solsbee v. Astrue, 737 F. ("Although the factors [listed above] Supp. 2d 102, 114 (W.D.N.Y. 2010). explicitly apply only to the evaluation of Although a chiropractor does not qualify as an medical opinions from 'acceptable medical "acceptable medical source" and thereby sources,' these same factors can be applied to cannot establish a medical impairment, a opinion evidence from 'other sources.'"); chiropractor is listed as an "other source," Solsbee, 737 F. Supp. 2d at 102. whose opinion should be considered in step two of the analysis. 20 C.F.R. § 404.1513(d); In this case, plaintiff was treated by a SSR 06-03p ("Opinions from these medical chiropractor for an extended duration and sources, who are not technically deemed both Dr. Goldstein and Dr. Singh recognized 'acceptable medical sources' under our rules, that chiropractic care was an important are important and should be evaluated on key element of plaintiff's treatment. (AR 413, issues such as impairment severity and 573.) Despite that, the ALJ explained that functional effects, along with the other "little weight" was given to Dr. Rosner's relevant evidence in the file.") These medical opinion, because "the opinion of a sources, such as chiropractors, are important chiropractor does not constitute evidence in the medical evaluation because they "have from an acceptable medical source." (Id. 22.) increasingly assumed a greater percentage of

The ALJ has discretion in determining the reasons for the weight assigned to a treating amount of weight to give to various medical physician's opinion."). A reviewing court opinions and can determine to afford little "may not accept appellate counsel's post hoc weight to an opinion if it is inconsistent with rationalizations for agency action." the record as a whole. 20 C.F.R. Burlington Truck Lines, Inc. v. United States, § 404.1527(c)(4); Snell, 177 F.3d at 133. Of 371 U.S. 156, 168 (1962); see Snell,177 F.3d course, that discretion also applies to "other" at 134. This Court cannot be certain what medical sources, such as a chiropractor. See impact, if any, the chiropractor's opinion

20 C.F.R. § 404.1513(d); Diaz, 59 F.3d at 314 would have had on the ALJ's determination if ("The ALJ has the discretion to determine the it was properly considered under the S.S.R. appropriate weight to accord the 06-03p framework, rather than being rejected chiropractor's opinion based on all the simply because it was the opinion of a evidence before him."). However, the ALJ chiropractor and, in any event, the ALJ should cannot disregard or give little weight to a be required to state the reason for his or her medical opinion solely because it is decision on this issue. In short, the ALJ erred categorized as an "other source." See Canales in giving "little weight" to the opinion of

v. Comm'r of Soc. Sec., 698 F. Supp. 2d 335, plaintiff's chiropractor solely on the grounds 344 (E.D.N.Y. 2010) (ALJ erred in that "the opinion of a chiropractor does not dismissing social worker's report "simply constitute evidence from an acceptable because it was the opinion of a social worker, medical source" (AR 22), and thus remand is not on account of its content or whether it warranted. conformed with the other evidence in the record"); Solsbee, 737 F. Supp. 2d at 114 This Court's holding is consistent with the (ALJ erred in affording "little weight" to numerous courts that also have clearly stated chiropractor's opinion, where he that, although an ALJ has the discretion to "[e]ssentially . . . granted no weight to [the assign little weight to a chiropractor's chiropractor's] opinion because chiropractors opinion, the ALJ cannot do so solely because are not considered an acceptable medical a chiropractor is not an acceptable medical source under the Regulations"). source, but rather must still consider the opinion as an "other source" under the Defendant argues that Dr. Rosner's applicable rules. See, e.g., Sanfilippo v. opinion "could not impact the case because Astrue, 274 F. App'x 551, 553 (9th Cir. 2008) his clinical findings were inconsistent with ("The ALJ stated that a chiropractor is not an those made by the other physicians of 'acceptable medical source,' and that record." (Def.'s Reply Mem. and Opp. at 3, therefore a chiropractor's opinion is not Dec. 20, 2011, ECF No. 18.) If, however, this entitled to controlling weight. The ALJ is was the basis for the ALJ's rejection of Dr. correct that a chiropractor is not an Rosner's opinion, the ALJ was required to 'acceptable medical source.' 20 C.F.R. explain that position. See Canales, 698 F. § 404.1513(a). However, an ALJ 'may' Supp. 2d at 344. See generally Halloran v. consider the opinion of an 'other' medical Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per source, such as a chiropractor, to determine curiam) ("We do not hesitate to remand when the severity of an impairment. 20 C.F.R. the Commissioner has not provided 'good § 404.1513(d)(1). 20 C.F.R. § 404.1527(d) reasons' for the weight given to a treating states that 'regardless of the source, the Social physician[']s opinion and we will continue Security Administration 'will evaluate every remanding when we encounter opinions from medical opinion [it] receive[s].' The ALJ ALJ's that do not comprehensively set forth applied the wrong standard with regard to the opinion of the treating chiropractor.


Accordingly, we remand for the administration to apply the proper standard to For the reasons set forth above, the case is the treating chiropractor's opinion."); Kelly v. remanded to the ALJ for further proceedings Astrue, No. 1:11-cv-00738-LJO-SKO, 2012 consistent with this Memorandum and Order. WL 3638029, 2012 U.S. Dist. LEXIS 118293, Specifically, on remand, the ALJ must at *21-22 (E.D. Cal. Aug. 21, 2012) ("The consider the chiropractor's opinion in ALJ provides no discussion of Chiropractor accordance with S.S.R. 06-03p, in light of all McClanahan's opinion other than to state he of the evidence, and must explain how much is not an acceptable medical source. That is weight he has afforded to the chiropractor's simply a statement of fact, and is not adequate opinion and the basis for that determination. consideration of the evidence itself. While the ALJ may evaluate the weight of the SO ORDERED. opinion based on its source, here the ALJ appeared not to have given the opinion any consideration whatsoever. An ALJ has an ________________________ obligation to explain why significant probative evidence has been rejected. Social Security Ruling 06-03p makes clear that all 'evidence' [is] to be considered, even from medical sources who are not 'acceptable' medical sources under the regulations. SSR 06-3p. The ALJ must explain how the * * * evidence was weighed -- simply pointing out that a chiropractor is not an acceptable Plaintiff is represented by Terry I. Katz, medical source provides no reasoning for the Terry Katz & Associates, P.C., 300 Jericho court to review." (citation omitted)); Quadrangle, Suite 180, Jericho, NY 11753. Clemmons v. Astrue, 1:10-cv-902, 2012 WL The attorney for defendant is Loretta E. 219512, 2012 U.S. Dist. LEXIS 8650, at *23 Lynch, United States Attorney, Eastern (S.D. Ohio Jan. 25, 2012) ("While a District of New York, by Arthur Swerdloff, chiropractor is not an 'acceptable medical 271 Cadman Plaza East, 7th Floor, Brooklyn, source' for purposes of the treating physician NY 11201. rule, see 20 C.F.R. §§ 404.1513(a) and (d), that does not mean that an ALJ may reject the results of objective tests or other clinical evidence solely because it comes from a chiropractor." (emphasis in original) (citation omitted)), adopted by 2012 U.S. Dist. LEXIS 20994 (S.D. Ohio Feb. 21, 2012); Cowgar v. Comm'r of Soc. Sec. Admin., 1:07CV59, 2008 WL 4283324, at *37 (N.D. W.Va. Sept. 17, 2008) (Report and Recommendation) ("[H]ad the ALJ dismissed [the chiropractor's] reports solely because [he] was a chiropractor, his dismissal would have been in error." (citation omitted)).

JOSEPH F. BIANCO United States District Judge

Date: September 21, 2012 Central Islip, NY


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