McIntosh v. Berryhill

Full title: KEMPTHON MCINTOSH, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Jul 16, 2018

17cv5403 (ER) (DF) (S.D.N.Y. Jul. 16, 2018)

Opinion

17cv5403 (ER) (DF)

07-16-2018

KEMPTHON MCINTOSH, Plaintiff, v. NANCY A. BERRYHILL Acting Commissioner of Social Security, Defendant.

DEBRA FREEMAN United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE EDGARDO RAMOS, U.S.D.J.:

In this action, Plaintiff Kempthon¹ McIntosh ("Plaintiff") seeks review of the final decision of the Acting Commissioner of the Social Security Administration ("Defendant" or the "Commissioner"), denying Plaintiff disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") on the ground that Plaintiff was not disabled under the Act. Plaintiff has moved, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, for summary judgment reversing the administrative decision of the Commissioner or, in the alternative, remanding the order for a new hearing (Dkt. 10), and Defendant has cross-moved for judgment on the pleadings affirming that decision (Dkt. 12).

1 This Court notes that, based on the administrative record in this case (the "Record") or (R."), Plaintiff's first name is "Kempthon," (see, e.g., R. at 46), and not "Kempton" (see Dkt. 11) or "Kenpthon" (see Dkt. 13).

For the reasons set forth below, I respectfully recommend that Plaintiff's motion (Dkt. 10) be granted, that Defendant's cross-motion (Dkt. 12) be denied, and that this matter be remanded for further proceedings.

BACKGROUND

A. Procedural History

Plaintiff applied for DIB on November 8, 2013, when he was 38 years old, alleging disability as of April 10, 2013, based on "arthritis in back nerve damage right leg," "lumbar spine impairment," "hernia in groin," "nerve damage in right leg," "arthritis of the back," and "lumbar spine hernia."² (R. at 81-88.) Plaintiff's last insured date was December 31, 2013. (Id. at 50, 191.) After Plaintiff's claim was initially denied on January 23, 2014 (id. at 96), he requested a hearing before an Administrative Law Judge ("ALJ") (id. at 104-05). On January 8, 2016, ALJ Jason A. Miller held a hearing, at which he heard testimony from Plaintiff, who was represented by counsel, as well as testimony from vocational expert ("VE") Andrew Vaughn. (Id. at 67-80.) In an administrative decision dated February 8, 2016, ALJ Miller determined that, although Plaintiff was severely impaired, he did not meet one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1; that Plaintiff retained the residual functional capacity ("RFC") to perform "a range of light work," with certain limitations; and that Plaintiff was not disabled under the Act from April 10, 2013, the alleged onset date, through December 31, 2013, the date Plaintiff was last insured. (Id. at 21-28.) The Appeals Council denied Plaintiff's request for review on May 12, 2017. (Id. at 5.) Thereafter, ALJ Miller's decision became the final decision of the Commissioner.

2 This Court notes that, based on the Record, prior to Plaintiff filing for DIB, Plaintiff filed for state workers' compensation and, on August 15, 2013, Plaintiff was determined by the New York Workers' Compensation Board to have a work-related injury in his right groin. (R. at 156.)

B. Plaintiff's Personal and Employment History

Plaintiff was born on September 22, 1975 and was 38 years old when he filed his disability application. (See id. at 81.) At the hearing before ALJ Miller, Plaintiff testified that he lived in New York City, that he had a girlfriend and was not married, and that he did not have any children. (Id. at 54-55.) With respect to Plaintiff's educational level, Plaintiff testified that he had obtained a GED. (Id. at 57.)

From 1996 through 2006, Plaintiff worked as a carpenter and then, from 2006 through April 10, 2013, as a "sandhog" (i.e., a miner who drilled in the Long Island Railroad tunnels at Grand Central Station in New York City). (Id. at 57, 185.) On April 10, 2013, Plaintiff was working in an underground tunnel when the "lights went out," he slipped and fell down a ledge, his legs split apart, and he landed on his buttocks. (Id. at 58, 373.) Although Plaintiff denied experiencing any head trauma or loss of consciousness (id. at 373), he was taken out of the tunnel on a "train" to a "safety place," where a report was written up to document the accident, and he was then sent home from work (id. at 58, 373). The next day, Plaintiff returned to work, but only to visit the onsite emergency room, Medcor, where he first complained that his lower back and groin were "bothering" him.³ (Id. at 58-59.) Plaintiff has not worked since the date of his work-related accident. (Id. at 57.)

3 Plaintiff testified that Medcor did not have the machines necessary to perform an X-ray, an MRI, or a CT scan, and, therefore, that no such images were taken on the day immediately following his accident. (Id. at 59.)

C. Medical Records

1. Evidence of Plaintiff's Impairments from April 10 , 2013 through December 31, 2013. ⁴

4 The period for which Plaintiff is seeking disability benefits under the Act runs from April 10, 2013 (i.e., the alleged disability onset date) through December 31, 2013 (i.e., Plaintiff's last insured date). See DeJesus v. Astrue, 762 F. Supp. 2d 673, 678 (S.D.N.Y. 2011) (noting that the relevant period was from the alleged onset date to the date last insured); Cataneo v. Astrue, No. 11cv2671 (KAM), 2013 WL 1122626, at *1 (E.D.N.Y. Mar. 17, 2013) (defining the relevant period as between plaintiff's alleged disability onset date and the last date plaintiff qualified for DIB).

a. Initial Medical Evaluation by Dr. Delman (April 15 , 2013)

On April 15, 2013, less than one week following the accident, Plaintiff saw Dr. David H. Delman, an internist and specialist in emergency medicine at DHD Medical, P.C. Dr. Delman initially evaluated Plaintiff because he was complaining of "persistent pain in the lower back," "pain, numbness, and tingling radiating into the right buttock," "pain in the right groin," and "worsening pain, numbness, [and] weakness[] in the right leg and foot." (Id. at 373.) Dr. Delman performed a musculoskeletal examination and found that Plaintiff had limited range of motion; specifically, he found that Plaintiff's range of motion "in flexion [was] 50 degrees, [whereas] normal [is] 90 degrees," that his "extension [was] 10 degrees, [whereas] normal [is] 30 degrees," and that his "[b]ending to the right [was] 10 degrees and bending to the left [was] 15 degrees, [whereas] normal [is] 40 degrees." (Id. at 374.) In addition, Dr. Delman assessed that Plaintiff was experiencing "pain on range of motion and tenderness and spasm in the lumber paraspinal musculature." (Id.) Dr. Delman also conducted a motor system examination, and found that Plaintiff's motor strength was slightly impeded in his right foot. (See id. at 375 (stating that "[motor strength] of the upper and lower extremities is 5/5 with [the] exception of the right foot dorsiflextor, which [is] 4/5 . . . [and] [t]he plantar flexor[,] [which] is 4/5").) Further, Dr. Delman found some diminishment in Plaintiff's sensory function. (See id. (Plaintiff's sensation was "diminished in the right leg in the L4 and L5⁵ dermatomes to pinprick").) Dr. Delman's assessment was that Plaintiff was suffering from "[l]umber spine sprain/strain . . . with possible right lumbar radiculopathy⁶ and worsening pain, weakness, and tingling in the right leg," as well as a "[r]ight groin injury with [a] possible hernia." (Id. at 375.) Aside from these conditions, Dr. Delman observed that, generally, Plaintiff was a "well-developed, well-nourished male," that he was "alert and oriented," and that his tendon reflexes were mostly symmetric in his upper and lower extremities. (See id. at 374-75.)

5 L1 through L5 are references to the five vertebrae composing the lumbar spine. Lumbar Spine Anatomy and Pain, https://www.spine-health.com/conditions/spine-anatomy/lumbar-spine-anatomy-and-pain

6 Lumbar radiculopathy is a disease involving the lumbar spinal nerve root and "is typically caused by a compression of the spinal nerve root." Lumbar Radiculopathy, https://www.emoryhealthcare.org/orthopedics/lumbar-radiculopathy.html

Dr. Delman noted that Plaintiff was then taking Tylenol and Motrin for pain, and further prescribed "a course of very gentle physical therapy[,] initially including moist heat, massage, and very gentle range of motion exercises with further therapeutic exercises[,] as tolerated[,] depending upon the results of [Plaintiff's] test to the lumber spine." (Id. at 373, 375.) He advised that Plaintiff be evaluated by a surgeon for his right groin pain. (Id. at 375.) He also recommended that "an MRI of [Plaintiff's] lumbar spine [be performed] to rule out disc herniations or other pathology causing [Plaintiff's] worsening pain, spasm, range of motion loss, and worsening [neurological deficits] in [Plaintiff's] right lower leg." (Id.)

Finally, Dr. Delman found that Plaintiff was "unable to work safely in any capacity due to his injuries [and that Plaintiff was] having difficulty with [] activities of daily living that were not a problem prior to his accident," and he "advised [Plaintiff] to be vigilant [in not doing] any activities to further exacerbate his injuries." (Id. at 376.)

b. MRI Results (April 18 , 2013)

On April 18, 2013, Dr. Naravan Paruchuri, a radiologist at Doshi Diagnostic Imaging Services, performed an MRI on Plaintiff. (Id. at 414-15.) The MRI showed facet hypertrophy⁷ of Plaintiff's lumbar spine at L1-2, L2-3 and L3-4, but did not evidence spondylosis, spondyloliathesis, compression fracture, bulge, or herniation. (Id. at 415.)

7 Facet hypertrophy "is the . . . degeneration and enlargement of the facet joints. The facet joints, which are a pair of small joints at each level along the back of the spine, are designed to provide support, stability, and flexibility to the spine. The facet joint may become enlarged as part of the body's response to degeneration of the spine, i.e., to try to provide additional stability to counteract the instability from degenerative disc disease." Hypertrophic Facet Disease Definition, https://www.spine-health.com/glossary/hypertrophic-facet-disease

c. Follow-Up Evaluation by Dr. Delman (May 2 , 2013)

Plaintiff visited Dr. Delman again on May 2, 2013, and Dr. Delman noted that Plaintiff had been attending physical therapy and taking Tylenol; that, while Plaintiff's lower back pain was "still hurting him a lot, he fe[lt] he [was] getting better"; that his pain level was a 6 on the VAS⁸ scale; and that Plaintiff was continuing to complain about discomfort in the right groin region. (Id. at 377.) Upon examination, Dr. Delman found some improvement in Plaintiff's range of motion, though the motor diminishment in Plaintiff's right foot and the sensory diminishment in Plaintiff's right leg were unchanged. (Id. at 377-78.) Notably, Dr. Delman found that Plaintiff tested positive for straight leg raising.⁹ (Id. at 378.)

8 VAS refers to the "Visual Analog Scale," which is "a unidimensional measure of pain intensity," with 10 being the highest amount of pain and 1 being the lowest amount of pain. See Visual Analogue Scale, https://www.physio-pedia.com/Visual_Analogue_Scale

9 The straight leg raise test "checks the mechanical movement of the neurological tissues as well as their sensitivity to mechanical stress or compression." Straight Leg Raise Test, https://www.physio-pedia.com/Straight_Leg_Raise_Test. The Record is unclear regarding whether Plaintiff was supine or standing during this test, though, generally, in a straight-leg raising test, the patient is in the supine position with the knee and hip extended and there is passive dorsiflexion of the foot, where back pain indicates nerve root compression or impingement. See Stedman's Medical Dictionary (updated November 2014) available on Westlaw at STEDMANS 908450.

Dr. Delman's overall assessment was that Plaintiff suffered from "[l]umber spine sprain/strain/myofascial pain syndrome with persistent right lumbar radicular symptomology," as well as a "[r]ight groin injury with [a] possible hernia." (Id.). He advised that Plaintiff be evaluated by a physiatrist to investigate further the "persistent radicular symptomatology in [his] right lower leg." (Id.) Finally, he reiterated that Plaintiff was unable to work safely in any capacity. (Id. at 379.)

d. Medical Evaluations by Dr. Manolas (May 9 , 2013) and Dr. Tolat (May 14, 2013)

On May 9, 2013, Dr. Panagiotis A. Manolas, a general surgeon, performed a clinical examination on Plaintiff to evaluate his groin injury. The Record appears to indicate that this examination included an electromyography procedure. (R. at 388-89.) The examination revealed, inter alia, tenderness in Plaintiff's right groin and "limitation in [his] range of motion [in] the right lower extremity." (Id.) Dr. Manolas opined that a CT scan of Plaintiff's groin and upper thighs would be necessary to rule out a hernia and stress fractures. (Id.)

On May 14, 2013, Dr. Raj D. Tolat, a physiatrist working in the same medical office as Dr. Delman, also evaluated Plaintiff. Dr. Tolat reported that Plaintiff was complaining of lower back pain radiating to his right lower extremity, with numbness, tingling, and weakness in his right leg. (Id. at 435.) Upon examination, Dr. Tolat found that Plaintiff's range of motion in his lumbar spine was restricted by pain and that there was sensory diminishment in his right lower extremity, although he also found that Plaintiff's muscle strength was undiminished and that his reflexes were symmetric. (Id.) Dr. Tolat also performed an electrodiagnostic evaluation on Plaintiff, which revealed "right L4 radiculopathy," and he advised Plaintiff to see a pain management specialist for management of his lumbar radiculopathies. (Id. at 437.)

e. Final Medical Evaluation by Dr. Delman (June 10 , 2013)

The Record reflects that Plaintiff's last visit to Dr. Delman was on June 10, 2013. (Id. at 383-84.) While Dr. Delman's record of that visit includes a notation that Plaintiff reported, at that time, that he had received a CT scan, that notation appears to be an error, as the Record does not contain any CT scan reports. Further, the June 10 record then indicates that Dr. Delman recommended that a CT scan be performed, per the recommendation of Dr. Manolas. (Id.)

In any event, Dr. Delman's records show that Plaintiff reported, on June 10, that his lower back was "slow[ly] improving," that his pain was then a 5 on the VAS, and that he was "somewhat less stiff." (Id. at 383.) Plaintiff maintained that he was going to physical therapy, participating in home exercise with "good results," and taking Tylenol for the pain. (Id.) While Dr. Delman noted further improvement in Plaintiff's range of motion, he also again found that Plaintiff had pain and tenderness in his lumbar paraspinal musculature, and that Plaintiff tested positive for straight leg raising. (Id. at 383-84). Dr. Delman's overall assessment was generally unchanged, which was that Plaintiff was suffering from "[l]umber spine sprain/strain/myofascial pain syndrome" and a right groin injury with a possible hernia. (Id. at 384.) He did note that, based on Dr. Tolat's studies, there was now "EMG evidence of right-sided L4 radiculopathy," and he referred Plaintiff to Dr. Leonid Reyfman, a pain management specialist, for further treatment. (Id. at 385.) He reiterated, again, that Plaintiff could not work safely because of his injuries. (Id.)

f. Treatment by Dr. Reyfman (prior to December 13 , 2013)

The Record indicates that Plaintiff was treated by Dr. Leonid Reyfman, a pain management specialist, on four separate occasions from June 21 to December 13, 2013 (Plaintiff's date last insured).¹⁰

10 As set out below, Dr. Reyfman also treated Plaintiff through October 29, 2015, after the period under consideration.

Dr. Reyfman's initial examination notes, from Plaintiff's visit on June 21, 2013, indicate that Plaintiff reported "lower back pain [that was] radiating to [his] right leg with numbness [and] tingling in [his feet and toes]"; pain at level 8 on the VAS; constant, dull, aching, sharp, and shooting pain that was exacerbated by standing, sitting, bending forward, lifting, and twisting; and leg pain that was worsened by standing and walking. (Id. at 397.) Plaintiff also reported experiencing "fatigue, impaired work tolerance, [and] difficulty sleeping, concentrating and performing activities of daily living." (Id.)

Upon examination by Dr. Reyfman, Plaintiff had diffuse tenderness in his lower back and sacroiliac region; limited range of motion in his lumbar spine and pelvis (especially with extension); diminished sensory functions from pin prick and light touch in his L5 and S1;¹¹ a positive result on the Lasegue test;¹² difficulty with squatting, as well as toe and heel walking; and slightly reduced reflexes in his patella and Achilles. (Id. at 398.) Dr. Reyfman diagnosed Plaintiff with lumbar disc displacement and lumbosacral neuritis radiculopathy. (Id.) He advised that Plaintiff avoid "repetitive, forceful, strenuous, twisting, jerky activities[,] which may aggravate [his] underlying condition," as well as "activities like pulling, pushing, bending, lifting, or carrying anything heavy." (Id.) He prescribed Tramadol¹³ for the pain. (Id.) Notably, Dr. Reyfman assessed Plaintiff as having experienced only "minimal improvement with conservative therapies" and therefore recommended that Plaintiff "proceed with a lumbar epidural steroid injection." (Id. at 399.) He noted that, because Plaintiff "also presented with symptoms extending into the limb, consistent with radicular pain . . . [and] ongoing lumbar axial pain," he was a better candidate for receiving such an injection. (Id.) Finally, Dr. Reyfman was of the opinion that Plaintiff had a temporary partial marked disability of 80%.¹⁴ (Id. at 400.)

11 "The base of the spine is made up of the intricate L5-S1 vertebral segment, also called the lumbosacral joint. This spinal segment has several interconnected components, any of which can cause lower back and/or leg pain (sciatica)." All about L5-S1 (Lumbosacral Joint), https://www.spine-health.com/conditions/spine-anatomy/all-about-l5-s1-lumbosacral-joint

12 The Lasegue Test is a type of Straight Leg Raise test that includes ankle dorsiflexion. Straight Leg Raise Test, https://www.physio-pedia.com/Straight_Leg_Raise_Test

13 Tramadol is an opiate analgesic used to relieve moderate to moderately severe pain. Tramadol, https://medlineplus.gov/druginfo/meds/a695011.html

14 Under the New York State Workers' Compensation Disability Classifications, "temporary partial marked disability" is where "the injured worker's wage-earning capacity is lost totally, but only on a temporary basis." Disability Classifications, http://www.wcb.ny.gov/content/main/onthejob/DisabilityClass.jsp

On October 14, 2013, Dr. Reyfman's findings remained generally unchanged from those he made at the June 2013 session. (See id. at 401-04.) Upon physically examining Plaintiff on October 21, 2013, Dr. Reyfman found that Plaintiff tested positive on the lumbar facet loading test,¹⁵ and he added lumbosacral spondylosis and lumbar facet syndrome to Plaintiff's overall diagnoses. (Id. at 406.) On that same date, Dr. Reyfman also gave Plaintiff a facet medial nerve injection. (Id. at 392.) On November 4, 2013, Plaintiff reported that he had experienced "moderate pain relief" following the facet injection. (Id. at 409.)

15 A lumbar facet loading test, lumbar quandrant test, or Kemp's test, assesses the lumbar spine facet joints to detect pain, and is used to diagnose for lumbar facet syndrome. Lumbar Quandrant Test, https://www.physio-pedia.com/Lumbar_Quadrant_Test

2. Evidence of Plaintiff's Impairments From December 31 , 2013 Through November 11, 2015. ¹⁶

16 Medical evidence pertaining to the time period after Plaintiff's last insured date may still be relevant to determining disability under the Act, but only insofar as such evidence relates back to Plaintiff's impairment from the date of his accident to the last insured date, or is probative of whether Plaintiff's impairment satisfied the 12-month durational requirement under the Act. See, e.g., Peralta v. Barnhart, No. 4cv4557 (JG), 2005 WL 1527669, at *13 (E.D.N.Y. Jun. 22, 2005) (holding that ALJ should consider evidence to the extent it relates back to plaintiff's condition during the time period for which benefits would be awarded); see also 42 U.S.C. § 423(d)(1)(A) (defining "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months).

a. Medical Evaluation by Dr. Ko (January 24 , 2014)

On January 24, 2014, Plaintiff was examined by Dr. Ko, also a pain management specialist, who worked in the same office as Dr. Reyfman. (Id. at 296.) Generally, Dr. Ko's treatment notes indicate complaints similar to those made by Plaintiff to Dr. Reyfman, and, upon physical examination, Dr. Ko made similar findings to those made by Dr. Reyfman.¹⁷ Most notably, Dr. Ko found that Plaintiff's back pain had decreased to a 4-5 on the VAS and that Plaintiff had experienced "good relief" after receiving a median block nerve injection.¹⁸ (Id.) Nonetheless, according to Dr. Ko, Plaintiff had "failed basic non-invasive conservative care," and Dr. Ko therefore performed a radiofrequency ablation on Plaintiff's median nerve, which Plaintiff tolerated well and which decreased his pain. (Id. at 298.) Dr. Ko diagnosed Plaintiff with lumbosacral spondylosis, lumbar facet syndrome, lumbar disc displacement, and lumbar neuritis radiculopathy (i.e., the same diagnoses as Dr. Reyfman). (Id. at 297.) Also similar to Dr. Reyfman's findings, Dr. Ko's examination revealed, inter alia, tenderness in Plaintiff's lower back and sacroiliac region; limited range of motion in the lumbar spine and pelvis; sensory diminishment; some loss of motor function; a positive result on the Lasegue test; and difficulty with squatting, toe and heel walk. (Id. at 297.) In agreement with Dr. Reyfman's opinions, Dr. Ko opined that Plaintiff should avoid "repetitive, forceful, strenuous, twisting, jerky activities[,] which may aggravate the underlying condition," and that Plaintiff should "avoid activities like pulling, pushing, bending, lifting, or carrying anything heavy." (Id. at 298.) Finally, Dr. Ko concluded, like Dr. Reyfman, that Plaintiff had a temporary partial marked disability of 80%. (Id.)

17 Dr. Ko wrote, inter alia, that Plaintiff was complaining of "lower back pain radiating to the right leg with numbness/tingling in feet/toes" with a "VAS [of] 8 [out of] 10]" that was "constant, dull, aching, sharp, [and] shooting," and that Plaintiff's pain was "exacerbated by mechanical type activities including standing, sitting, bending forward, lifting and twisting, whereas standing and walking worsen[ed] [his]leg pain." (R at 296.) Dr. Ko also noted that Plaintiff reported "concomitant fatigue, impaired work tolerance, difficulty sleeping, concentrating and performing activities of daily living." (Id.)

18 It is not entirely clear from Dr. Ko's treatment notes whether the injection decreased Plaintiff's pain by 50% or by 70%. While Dr. Ko indicated that Plaintiff had experienced "good relief [of] 50%," he also wrote that Plaintiff "demonstrated positive diagnostic response to median nerve block with at least 70% pain relief." (See id. at 296-97.)

b. Treatment by Dr. Reyfman (February 2014 Through October 2015)

On February 26, 2014, Plaintiff reported to Dr. Reyfman that, as a result of the ablation procedure, he had experienced moderate pain relief, which, according to Plaintiff, had lasted for 3 to 4 weeks; he also reported a pain level of 4-5 on the VAS that was "intermittent, dull, [and] aching." (Id. at 290.) Plaintiff denied experiencing any side effects from his medication. (Id.) Upon physical examination, Dr. Reyfman found moderate tenderness in Plaintiff's lower back and sacroiliac region, and a positive result on a lumbar facet loading test. (Id. at 291.) At that time, Dr. Reyfman did not make any notes regarding whether he had assessed Plaintiff's range of motion in the spine, his motor function, his sensations or reflexes, or his performance on the Lasegue test. (Id.) Dr. Reyfman reiterated his diagnoses of lumbar facet syndrome and lumbar disc displacement, added the diagnosis of lumbago,¹⁹ and excluded the prior diagnoses of lumbosacral neuritis radiculopathy and lumbosacral spondylosis. (Id. at 288, 291.) In addition to Plaintiff's Tramadol prescription, Dr. Reyfman added Robaxin²⁰ and, once again, concluded that Plaintiff had a temporary partial marked disability of 80%. (Id. at 292.)

19 Lumbago "is the general term referring to low back pain." Understanding Low Back Pain (Lumbago), https://www.spine-health.com/conditions/lower-back-pain/understanding-low-back-pain-lumbago

20 Robaxin (generic name methocarbamol) "is used . . . to relax muscles and relieve pain and discomfort caused by . . . muscle injuries." Methocarbamol, https://medlineplus.gov/druginfo/meds/a682579.html

On April 4, 2014, Dr. Reyfman's treatment notes show that, while Plaintiff reported a decrease in pain, Plaintiff's condition remained generally unchanged, except that Plaintiff's lumbar disc displacement indicated "restricted lumbar and lumbosacral range of motion" and that, "given these complain[t]s and symptoms and signs of radiculopathy, [an] MRI of the lumbar spine [was] indicated."²¹ (See id. at 271-72.) On May 7, 2014, Plaintiff returned for further examination and his condition, at that time, reportedly remained static, except his lower back pain was reportedly "worse with getting up," but "controlled with Tramadol." (Id. at 266.) In both the April and May 2014 treatment notes, Dr. Reyfman again omitted any notes regarding Plaintiff's range of motion in the spine, motor loss, diminished sensations, or reflexes, or regarding the Lasegue test. (See id. at 267, 272.)

21 This Court notes that the Record does not indicate the results of a second MRI, if one was performed.

On June 18, 2014, Plaintiff reported continuing lower back pain and renewed tingling in his feet and toes. (Id. at 254.) At that point, Dr. Reyfman again found some indication of motor loss (id. at 255 (noting "4/5 knee extension and hip flexors")) and a positive result on the Lasegue test (though with an improved range of 40 degrees) (id.), but no sensory diminishment (id. ("Sensory: normal pin prick and light touch [bilaterally]")).

On June 19, 2014 Dr. Reyfman completed a Workers Compensation Maximum Medical Improvement ("MMI") Form²² and, therein, indicated that Plaintiff could "[o]ccasionally" (i.e., up to one-third of the time) lift and carry up to 20 pounds, sit, kneel, bend/sloop/squat and perform simple grasping movements, and "[f]requently" (i.e., from one-third to two-thirds of the time) lift and carry up to 10 pounds, sit, stand, walk, climb, engage in fine manipulation, reach overhead, reach at/or below shoulder level, drive a vehicle, operate machinery and endure temperature extremes or high humidity. (Id. at 246.) Dr. Reyfman further wrote that Plaintiff could engage in "[l]ight work . . . [which meant] [e]xerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently and/or [a] negligible amount of force constantly to move objects." (Id.)

22 According to New York's Impairment Guidelines for the Workers' Compensation Board, a finding of "maximum medical improvement" is based on a medical judgment that "(a) the claimant has recovered from the work injury or illness to the greatest extent that is expected and (b) no further improvement is reasonably expected." See 1.2 Maximum Medical Improvement (MMI), www.wcb.ny.gov/2018-Impairment-Guidelines.pdf

By July 23, 2014, however, Plaintiff reported higher levels of pain - a 6 on the VAS - and continued to complain of tingling in his feet and toes. (Id. at 229.) Dr. Reyfman recommended a course of conservative treatment, starting with physical therapy two to three times per week for six to eight weeks, with the goal of increasing Plaintiff's range of motion, strength, coordination, and ambulation, as well as decreasing his pain and inflammation. (Id. at 230.) Dr. Reyfman also noted normal sensory function, but some motor loss, and indicated that Plaintiff tested positive on the Lasegue test. (Id.) Then, from August 2014 through December 2014, Plaintiff reported lower levels of pain due to his medication (a 4 on the VAS), normal sensory and reflex functions; sometimes, some motor loss in his knee extension and hip flexors; and tingling in feet and toes. (Id. at 302-03, 308-09, 313-14.) He continued to test positive on the Lasegue test and the lumbar facet loading test. (Id.) He denied experiencing any side effects from his medication, other than constipation. (See id. at 313.) He also indicated that he was not engaging in physical therapy because his insurance company had not yet approved it. (Id.)

By January 7, 2015, Plaintiff was again exhibiting diffuse tenderness in his lower back and sacroiliac region, limited range of motion in his lumbar spine and pelvis, some motor loss in his extension and hip flexors, and positive results for the Lasegue test and the lumbar facet loading test. (Id. at 317.) He was also experiencing muscle spasms. (Id.) Dr. Reyfman advised that Plaintiff undergo a transcutaneous electrical neurostimulation, which was stated to be "for select use in chronic back pain or chronic radicular pain syndrome as an adjunct for more efficacious treatments." (Id. at 318.) Then, during both the January 21 and March 3, 2015 sessions, Dr. Reyfman found diminished sensory function, though no loss in motor function. (See id. at 321, 326.) Plaintiff reported that his medication controlled his pain and that he was not experiencing any side effects from taking it. (Id. at 325.) On April 1, 2015, Plaintiff reported that his pain was "well controlled," and he was additionally prescribed 300mg of Neurontin.²³ (Id. at 330.) On April 28, 2015, Plaintiff reported that his pain was being managed with his medication, and he again denied experiencing side effects. (Id. at 332.)

23 Neurontin (generic name gabapentin) is typically used to help control seizures for people with epilepsy, to relieve the pain of postherpetic neuralgia from shingles, and to treat restless leg syndrome. See Gabapentin, https://medlineplus.gov/druginfo/meds/a694007.html. On November 9, 2015, Dr. Allen Meisel, a consultative examiner, indicated that Plaintiff had been prescribed gabapentin to alleviate numbness in his feet. (R. at 340).

On June 2, 2015, Plaintiff reported that, recently, his "low[er] back pain [was] getting worse." (Id. at 337.) On July 7, 2015, Dr. Reyfman recommended that a trigger point injection be performed, although he concluded that Plaintiff's temporary partial marked disability was now at 70% (i.e., a 10% improvement from the prior sessions, which had indicated an 80% disability). (Id. at 354.) On August 11, 2015, Plaintiff reported pain, with numbness, radiating to his right leg, although he also reported that the medication was controlling his pain without adverse reaction. (Id. at 355.) Dr. Reyfman renewed his diagnosis of lumbosacral neuritis radiculopathy (id. at 356), and advised that an electrodiagnostic study be performed (id. at 357). He also reiterated his recommendation that Plaintiff receive a trigger point injection. (Id.)

On September 21, 2015, Plaintiff apparently reported that he was taking Tramadol three to four times per day and that he spent "a lot of [his] time walking."²⁴ (Id. at 359.) On October 29, 2015 - the date of the last treatment note from Dr. Reyfman in the Record - Dr. Reyfman indicated that he was considering lowering Plaintiff's dosage of Tramadol, which was controlling Plaintiff's pain. (Id. at 361.) He changed Plaintiff's diagnosis to "spondylosis with radiculopathy, lumbar region" and "chronic pain syndrome," and, again, he recommended that an electrodiagnostic study be performed.²⁵ (Id. at 360.)

24 The treatment notes from September 21, 2015, while referenced in the October 29, 2015 treatment notes, are not themselves included in the Record.

25 The Record does not contain the results of a second electrodiagnostic study, if one was performed.

c. Dr. Meisel's Consultative Examination (November 9 , 2015)

Not long after Dr. Reyfman's last treatment note, Dr. Meisel, an orthopedist at Industrial Medicine Associates, P.C., conducted an orthopedic examination of Plaintiff at the behest of the Commissioner, and completed a Medical Source Statement.

With regard to Plaintiff's medical history, Dr. Meisel summarized that Plaintiff had suffered from persistent back pain for three years; that the MRI conducted on Plaintiff shortly after his accident showed "bulging discs at multiple levels[;]"²⁶ that his pain level was a 6 out of 10, but was relieved by medication to a 4 out of 10; that he felt pain in both of his legs, which radiated to his feet; that, for the last year, he had experienced numbness in both of his feet; and that he had stopped his back exercises three months prior to the exam. (Id. at 340.) Dr. Meisel noted that Plaintiff was not in acute distress; that his gait was normal, although he could not walk on his heels or his toes; that his squat was limited to 20 percent; that his station was normal; that he did not use an assistive device; that he did not require any help in changing his clothes for the examination or getting on and off the examination table; and that he rose in his chair without difficulty. (Id. at 341.) With regard to Plaintiff's daily living activities, Dr. Meisel noted that, while Plaintiff did "not know how to cook" and could not "clean[], [do] laundry, and shop[] because [such activities] require[d] him to carry bags" (id.), he was able to shower and dress himself (id.).

26 This Court notes that the April 18, 2013 MRI, performed by Dr. Paruchuri, did not evidence any bulges.

Dr. Meisel's examination indicated, with regard to Plaintiff's thoracic and lumbar spines, that Plaintiff had "[f]ull flexion, extension, lateral flexion, and rotary movements, bilaterally"; that there was "[n]o [indication of] spinal or paraspinal tenderness [and no] SI joint or sciatic notch tenderness"; that there was "[n]o spasm" and "[n]o scoliosis or kyphosis"; and that Plaintiff tested negative on the straight leg raising test. (Id. at 341-42.) With regard to Plaintiff's lower extremities, Dr. Meisel's examination indicated that Plaintiff had a full range of motion in his hips, knees, and ankles, but that his right leg strength was diminished to a 4 out of 5 with "[n]o muscle atrophy," and that Plaintiff's reflexes were normal. (Id. at 342.) Based on his examination, Dr. Meisel diagnosed Plaintiff with lumbar back pain secondary to herniated disc disease, and found that Plaintiff had "mild limitations [in] walking, climbing stairs, bending, and kneeling." (Id.)

In his Medical Source Statement, Dr. Meisel indicated that Plaintiff could: (1) occasionally lift or carry up to 10 pounds (and never lift or carry more than 10 pounds); (2) sit, stand and walk for up to 20 minutes at one time without interruption; (3) sit, stand and walk for up to 20 minutes total in an eight-hour work day; (4) occasionally reach overhead and generally reach, handle, finger, feel, and push or pull with his right and left hands; (5) occasionally tolerate pulmonary irritants, extreme cold or heat and vibrations; and (6) occasionally tolerate moderate office noise. (Id. at 344-46.) Further, Dr. Meisel indicated that, with respect to daily living activities, Plaintiff could shop, travel, ambulate without an assistive device, walk at a reasonable pace, climb a few steps at a reasonable pace, prepare simple meals, care for personal hygiene, and sort and handle paper files. (Id. at 349.) Finally, Dr. Meisel indicated that Plaintiff could not: (1) operate foot controls; (2) climb stairs, ladders or scaffolds; (3) balance, stoop, kneel, crouch or crawl; (4) tolerate unprotected heights, moving mechanical parts or operating a motor vehicle; or (5) use standard public transportation. (Id. at 347-49.)

d. Plaintiff's Testimony before the ALJ

On January 8, 2016, Plaintiff testified at a hearing conducted by ALJ Miller. He was represented by counsel during the hearing. As noted above, Plaintiff testified that, at the onsite of his alleged disability on April 10, 2013, he was a miner helping to build the Second Avenue subway to Grand Central Station, and that he had a GED. (Id. at 57.) In addition, he stated that he lived with his father, that he had a girlfriend, that he did not have any children, and that his source of income was Workers' Compensation. (Id. at 54-56.)

With regard to his physical impairments, Plaintiff testified that he was not hospitalized following the injury, but that, the next day, he was taken to Medcor (which he described as "a[n] emergency room on the job site"), where a report was made of the accident, but no X-ray, MRI or CT scan was performed. (Id. at 58-59.) While at Medcor, he complained of lower back pain and groin pain, and he was prescribed aspirin. (Id. at 59-60.) Plaintiff stated that his pain "was the same basically" during the eight-month period between the date of his accident and December 31, 2013, the date he was last insured. (Id. at 62.) He confirmed that, between October and November of 2013, he was treated by Dr. Delman, and that he received physical therapy through Dr. Delman's office about three times per week, until the insurance company ceased paying for it. (Id. at 60, 63.) He then began seeing Dr. Reyfman for injections, because "[there was] nothing [Dr.] Delman could do . . . at the time." (Id. at 61.) Plaintiff testified that, while the first injection performed by Dr. Reyfman helped for "three weeks," the "second one really didn't do too much." (Id. at 63.)

Plaintiff further testified that he was currently taking Tramadol "four times a day"; that he experienced side effects from the medication, including confusion and fatigue; and that Tramadol was a "messed-up drug," which did not completely alleviate his pain. (Id. at 62-63.) He described his lower back pain as going down his right leg, and further testified that his legs would get numb if he sat down for a long time on a hard chair. (Id. at 68-69.) He similarly testified that, if he used the bathroom, his legs would "go numb" and it would take him "a very long time to get up, because if [he were] to get up . . . there[] [would be] no feeling in [his] legs." (Id. at 69.) Plaintiff further described the numbness in his feet as occurring "pretty often" and said that Dr. Reyfman had mentioned "burning the nerves," but that the pain would only be temporarily alleviated. (Id.) Plaintiff testified that he could sit for about 20 to 30 minutes before feeling pain and numbness and that he could only stand for about 30 minutes before feeling pain. (Id. at 69-70.) Plaintiff stated that he could not bend down "that much." (Id.) He further stated that he sometimes used a back brace when his "back start[ed] really hurting a lot." (Id. at 68.)

Plaintiff testified that he "sometimes" drove his girlfriend's car but that, due to side effects from his medication, particularly drowsiness and nausea, he preferred to have other people drive or to take a cab instead. (Id. at 56-57.) Plaintiff later clarified that he would drive his girlfriend's car only about eight blocks to bring the car back to her house. (Id. at 67.) In addition, Plaintiff testified that he lived with his parents; that his father cooked his meals; that he could boil eggs and "stuff like that," but could not cook bigger meals; and that his girlfriend did his laundry and grocery shopping for him. (Id. at 63.)

D. The Parties' Pending Motions Before the Court

On December 18, 2017, Plaintiff, through counsel, filed a motion for summary judgment,²⁷ arguing that the Commissioner's decision should be reversed or, alternatively, that this case should be remanded for further development of the Record (see Plaintiff's Memorandum of Law in Support of the Plaintiff's Motion for Judgment on the Pleadings, filed December 18, 2017 ("Pl. Mem.") (Dkt. 10)). Plaintiff primarily contends that, in making his determination, the ALJ disregarded or improperly weighed medical opinion evidence from Plaintiff's treating physicians, Drs. Delman, Tolat, Reyfman, and Ko (see id., at 10-14);²⁸ and that, at Step Three of the five-step sequential evaluation, the ALJ failed to provide a thorough analysis with respect to whether Plaintiff's spinal condition met a listed impairment (id. at 10-15).

27 This Court recommends treating Plaintiff's motion for summary judgment as a motion for judgment on the pleadings reversing the Commissioner's decision. See Mersel v. Heckler, 577 F. Supp. 1400, 1401 at n.1 (S.D.N.Y. 1984).

28 In one of the point headings in his brief, Plaintiff identifies an issue being raised as: "Whether the ALJ erred by picking and choosing portions of the CE opinion." (Pl. Mem., at 12.) Plaintiff, however, does not explain what he means by the "CE opinion," and, to the extent he is referring to the opinion of Dr. Meisel (the consultative examiner), this Court notes that the substance of Plaintiff's argument under that point heading does not actually relate to Dr. Meisel, but rather to the ALJ's alleged errors in weighing the opinions of Drs. Delman and Reyfman. (See id., at 12-13.)

On January 24, 2018, Defendant filed a cross-motion for judgment on the pleadings in favor of the Commissioner. (Dkt. 12.) Addressing, first, the sufficiency of the ALJ's finding, at Step Three, that Plaintiff did not have a listing-level impairment, Defendant argues that the ALJ's determination was reasonable and well supported. (See Memorandum of Law in Support of Defendant's Cross-Motion for Judgment on the Pleadings, filed Jan. 24, 2018 ("Def. Mem.") (Dkt. 13), at 5-7.) Defendant then further argues that the ALJ's determination of Plaintiff's RFC, and his ultimate finding that Plaintiff was not disabled under the Act were supported by substantial evidence. (Id., at 8-17.) Plaintiff did not file any reply to Defendant's motion or opposition to the cross-motion, and Defendant also made no further submissions. This Court therefore considers the matter to be fully submitted.

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Standard of Review

Judgment on the pleadings under Rule 12(c) is appropriate where "the movant establishes 'that no material issue of fact remains to be resolved,'" Guzman v. Astrue, No. 09cv3928 (PKC), 2011 WL 666194, at *6 (S.D.N.Y. Feb. 4, 2011) (quoting Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990)), and a judgment on the merits can be made "'merely by considering the contents of the pleadings.'" Id. (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)).

Judicial review of a decision of the Commissioner is limited. The Commissioner's decision is final, provided that the correct legal standards are applied and findings of fact are supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). "[W]here an error of law has been made that might have affected the disposition of the case, [a] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ." Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (citation omitted)). Thus, the first step is to ensure that the Commissioner applied the correct legal standards. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

The next step is to determine whether the Commissioner's decision is supported by substantial evidence. See Tejada, 167 F.3d at 773. Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). In making this determination, a court must consider the underlying record. The reviewing court does not, however, decide de novo whether a claimant is disabled. See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, we will not substitute our judgment for that of the Commissioner."); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). Thus, if the correct legal principles have been applied, this Court must uphold the Commissioner's decision upon a finding of substantial evidence, even where contrary evidence exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."); see also DeChirico v. Callahan, 134 F.3d 1177, 1182-83 (2d Cir. 1998) (affirming decision where substantial evidence supported both sides).

B. The Five-Step Sequential Evaluation

To be entitled to disability benefits under the Act, a claimant must establish his or her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). An individual is considered to be under a disability only if the individual's physical or mental impairments are of such severity that he or she is not only unable to do his or her previous work, but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

In evaluating a disability claim, an ALJ must follow the five-step procedure set out in the regulations governing the administration of Social Security benefits. See 20 C.F.R. § 404.1520; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). Throughout the inquiry, the ALJ must consider four primary sources of evidence: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citations omitted).

The first step of the inquiry requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If not, at the second step, the ALJ determines whether the claimant has a "severe" impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c). If the claimant does suffer from such an impairment, then the third step requires the ALJ to determine whether this impairment meets or equals an impairment listed 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). Id. § 404.1520(a)(4)(iii). If it does, then the claimant is presumed to be disabled. Id.

If the claimant's impairment does not meet or equal a listed impairment, then the ALJ must determine, based on all the relevant evidence in the Record, the claimant's RFC, or ability to perform physical and mental work activities on a sustained basis. Id. § 404.1545. The ALJ then proceeds to the fourth step of the inquiry, which requires the ALJ to determine whether the claimant's RFC allows the claimant to perform his or her "past relevant work." Id. § 404.1520(a)(4)(iv). Finally, if the claimant is unable to perform his or her past relevant work, the fifth step requires the ALJ to determine whether, in light the claimant's RFC, age, education, and work experience, the claimant is capable of performing "any other work" that exists in the national economy. Id. §§ 404.1520(a)(4)(v), (g).

On the first four steps of the five-step evaluation, the claimant generally bears the burden of establishing facts to support his or her claim. See Berry, 675 F.2d at 467 (internal citation omitted). At the fifth step, the burden shifts to the Commissioner to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). The Commissioner must establish that the alternative work "exists in significant numbers" in the national economy and that the claimant can perform this work, given his or her RFC and vocational factors. 20 C.F.R. § 404.1560(c)(2). Where the claimant only suffers from exertional impairments, the Commissioner can satisfy this burden by referring to the Medical- Vocational Guidelines, set out in 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the "Guidelines"). Where, however, the claimant suffers non-exertional impairments, such as visual impairment, psychiatric impairment, or pain, see Id. § 404.1569a, that "'significantly limit the range of work permitted by his [or her] exertional limitations,' the ALJ is required to consult with a vocational expert," rather than rely exclusively on these published guidelines. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir. 1986) (internal citations omitted)).

C. Duty To Develop the Record

"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). Where a district court is called upon to review the decision of an ALJ, the question of whether the ALJ has met his burden to develop the record "is a threshold question." Craig v. Comm'r of Soc. Sec., 218 F. Supp. 3d 249, 261 (S.D.N.Y. 2016) (noting that, "[b]efore reviewing whether the Commissioner's final decision is supported by substantial evidence . . . the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record" (internal quotation marks and citations omitted)); see also 42 U.S.C. § 405(g). The ALJ's affirmative obligation to develop the claimant's medical history when there are deficiencies in the Record applies "even where the claimant is represented by counsel," id.; accord Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999), and an ALJ's failure to satisfy this obligation may be grounds for remand, Rosa, 168 F.3d at 82-83; accord Craig, 218 F. Supp. 3d at 262 (noting that "[r]emand is appropriate where this duty is not discharged").

The SSA regulations explain this duty to claimants this way:

Before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports. . . . 'Every reasonable effort' means that we will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one followup request to obtain the medical evidence necessary to make a determination.

20 C.F.R. § 416.912(d), (d)(1). "[I]f the documents received lack any necessary information, the ALJ should recontact the treating physician." Oliveras ex rel. Gonzalez v. Astrue, No. 07cv2841 (RMB) (JCF), 2008 WL 2262618, at *6 (S.D.N.Y. May 30, 2008), report and recommendation adopted, 2008 WL 2540816 (June 25, 2008); 20 C.F.R. § 416.912(e). The ALJ also has authority to subpoena medical evidence on behalf of the claimant, 42 U.S.C. § 405(d), but is not required to subpoena medical records if they are not received following two ordinary requests, Gonell De Abreu v. Colvin, No. 16cv4892 (BMC), 2017 WL 1843103, at *5 (E.D.N.Y. May 2, 2017); 20 C.F.R. § 416.1450(d)(1).

The regulations further explain that a claimant's "complete medical history" means the records of his or her "medical source(s)." Id. § 416.912(d)(2). If the information obtained from medical sources is insufficient to make a disability determination, or if the ALJ is unable to seek clarification from treating sources, the regulations also provide that the ALJ should ask the claimant to attend one or more consultative evaluations. 20 C.F.R. §§ 416.912(e), 416.917.

Where there are no "obvious gaps" in the record and where the ALJ already "possesses a 'complete medical history,'" the ALJ is "under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa, 168 F.3d at 79 n.5.

D. The Treating Physician Rule

Under the so-called "treating physician rule,"²⁹ the medical opinion of a treating source as to "the nature and severity of [a claimant's] impairments" is entitled to "controlling weight," where the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 416.927(c)(2). "[T]reating source" is defined as the claimant's "own physician, psychologist, or other acceptable medical source who . . . has provided [the claimant] with medical treatment or evaluation" and who has had "an ongoing treatment relationship" with him or her. 20 C.F.R. § 416.902.³⁰ Treating physicians' opinions are generally accorded deference because treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of a claimant's condition and "bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations." 20 C.F.R. § 416.927(c)(2); see Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013).

29 In accordance with Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 11 (Jan. 18, 2017), the treating physician rule, as described herein, will no longer be in effect for applications made to the SSA on or after March 27, 2017.

30 A medical source who has treated or evaluated the claimant "only a few times" may be considered a treating source "if the nature and frequency of the treatment or evaluation is typical for [the claimant's] condition(s)." 20 C.F.R. § 416.902.

Where an ALJ determines that a treating physician's opinion is not entitled to "controlling weight," the ALJ must "give good reasons" for the weight accorded to the opinion. 20 C.F.R. § 416.927(c)(2). Failure to "give good reasons" is grounds for remand. Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician's opinion . . . ."). Moreover, in determining the weight to be accorded to an opinion of a treating physician, the ALJ "must apply a series of factors," Aronis v. Barnhart, No. 02cv7660 (SAS), 2003 WL 22953167, at *5 (S.D.N.Y. Dec. 15, 2003) (citing 20 C.F.R. § 416.927(d)(2) ³¹), including: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the treatment received was particular to the claimant's impairment; (3) the supportability of the physician's opinion; (4) the consistency of the physician's opinion with the record as a whole; and (5) the specialization of the physician providing the opinion, 20 C.F.R. § 416.927(c)(2)-(5); see Shaw, 221 F.3d at 134 (noting that these five factors "must be considered when the treating physician's opinion is not given controlling weight").

31 On February 23, 2012, the Commissioner amended 20 C.F.R. § 416.927, by, among other things, removing paragraph (c), and re-designating paragraphs (d) through (f) as paragraphs (c) through (e).

Even where a treating physician's opinion is not entitled to "controlling weight," it is generally entitled to "more weight" than the opinions of non-treating and non-examining sources. 20 C.F.R. § 416.927(c)(2); see Social Security Ruling ("SSR") 96-2p (S.S.A. July 2, 1996) ("In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight."); see also Gonzalez v. Apfel, 113 F. Supp. 2d 580, 589 (S.D.N.Y. 2000). A consultative physician's opinion, by contrast, is generally entitled to "limited weight." Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (citations omitted). This is because consultative examinations "are often brief, are generally performed without benefit or review of the claimant's medical history, and, at best, only give a glimpse of the claimant on a single day. Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons." Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 55 (2d Cir. 1992) (internal quotation marks and citation omitted).

II. THE ALJ'S DECISION

On February 28, 2016, the ALJ issued a decision denying Plaintiff DIB benefits, on the ground that Plaintiff was not disabled within the meaning of the Act. (Id. at 19-28.) In making his determination, the ALJ specifically noted that, due to the "minimum of objective evidence relating to [Plaintiff's] April 2013 work-related injury prior to the date last insured," the medical evidence in 2014 and 2015 would also be reviewed as related to the relevant period. (Id. at 22.)

A. Steps One and Two of the Sequential Evaluation

At Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from the alleged disability onset date of April 10, 2013 through his date he was last insured, December 31, 2013.³² (Id. at 21.)

32 The ALJ determined that, although Plaintiff had received $350 in earnings in the fourth quarter of 2013, this payment was from an insurance carrier, not Plaintiff's prior employer. (R. at 21.)

At Step Two, the ALJ determined that Plaintiff suffered from the severe impairment of lumbosacral spondylosis, identifying no other impairments. (Id.)

B. Step Three of the Sequential Evaluation

At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled an impairment of Listing 1.04 (disorders of the spine). (Id. at 22.) The ALJ indicated that, while claimant's lumbar spine impairment was severe, "evidence dated in 2014 and 2015 shows that he has not exhibited each of the necessary neurological deficits. Specifically, [Plaintiff] has had normal sensation and reflexes in his lower extremities for much of this period." (Id.)

C. The ALJ's Assessment of Plaintiff's RFC

The ALJ determined that Plaintiff had the RFC to perform a range of light work (id. at 22), involving lifting and carrying 20 pounds occasionally, lifting and carrying 10 pounds frequently, standing and/or walking (with normal breaks) up to six hours in an eight-hour workday, and sitting (with normal breaks) up to six hours in an eight-hour workday (id.).³³ The ALJ determined that, in terms of Plaintiff's postural limitations, Plaintiff could never climb ladders, ropes or scaffolds, and could never kneel or crawl, but could occasionally climb ramps and stairs, and could occasionally, balance, stoop, and crouch. (Id.)

33 According to the regulations, "light work" refers to jobs that require "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a great deal of walking or standing, or when it involves sitting most of the time with some pushing or pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).

In making this RFC determination, the ALJ generally concluded that "the medical evidence indicates that although the [Plaintiff] received treatment for his lower back impairment, it was not of [a] disabling character during [the time period] at issue."³⁴ (Id. at 23.) The ALJ determined that, while Plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. (Id. at 24.) Specifically, the ALJ wrote: the "objective medical evidence of record alone does not establish deficits on clinical examination findings, or a level of abnormality on diagnostic imaging results, that would establish a per se more restrictive [RFC] assessment." (Id.)

34 The ALJ clarified that, as Plaintiff was seeking benefits under Title II of the Act, the ALJ would consider the evidence post-dating December 31, 2013, but any condition that began, or did not get significantly worse, until after that date would not be given probative value in establishing disability. (R at 23.)

The ALJ also wrote that the objective record showed improvement of Plaintiff's condition within 12 months of his initial injury and that Plaintiff had required only conservative treatment during that period. (Id. at 25.) When noting "conservative treatment," the ALJ specifically mentioned that Plaintiff did not go to the hospital on the day of his accident, did not require surgery, engaged only in a home exercise program, and did not require an assistive device. (Id.) The ALJ also noted that Plaintiff was only taking Tramadol, was doing well on it, and did not have any side effects. (Id.) For these reasons, the ALJ concluded that, while Plaintiff was limited by pain, the objective record and the fact that Plaintiff did not require an assistive device indicated that Plaintiff could tolerate performing light work, "as there [did] not appear to be any limitation on his ability to stand or walk in the work setting." (Id.)

In considering Plaintiff's testimony, the ALJ found that Plaintiff's daily activities did exhibit that he had some restrictions in regular functioning, as he had noted that his parents and his girlfriend performed many chores on his behalf. (Id.) Based on Plaintiff's testimony, however, that "he [could] do some light cooking, take public transportation, and drive a little bit," the ALJ determined that Plaintiff was not "completely debilitated." (Id.) With regard to the frequency and intensity of Plaintiff's symptoms, the ALJ credited Plaintiff's allegations of ongoing pain, but determined that, even if Plaintiff's allegations were taken at face value, they [did] not suggest a more restrictive RFC. (Id. (noting, for example, Plaintiff's testimony that he could sit and stand for up to 30 minutes at one time).) Moreover, the ALJ noted that Dr. Reyfman's treatment charts from 2014 and 2015 "establishe[d] that [Plaintiff] regularly reported decreased pain levels, and stability on medications, with good pain relief and pain control." (Id.)

In weighing the medical opinion evidence, the ALJ gave "great weight" to Dr. Meisel's consultative opinion, to the extent Dr. Meisel had opined that Plaintiff had only "mild" limitations walking, climbing stairs, bending and kneeling. (Id., at 26.) The ALJ found that this aspect of Dr. Meisel's opinion "was consistent with the medical record as a whole," which, according to the ALJ, "show[ed] a distinct trend of improvement in [Plaintiff's] symptoms," and that Dr. Meisel's assessment of mild limitations was "supported by clinical findings in the course of a live examination." (Id.) The ALJ, however, discounted virtually the entirety of Dr. Meisel's Medical Source Statement, assigning it only "little weight," because, according to the ALJ, the limitations described in that report were "at variance with [Dr. Meisel's] own clinical findings, and [were] unsupported by the medical record as a whole." (Id. (again describing the Record as indicating that, "despite ongoing symptomology, [Plaintiff] ha[d] experienced significant improvement").)

The ALJ gave "some weight" to the function-by-function limitations identified by Dr. Ko because, according to the ALJ, Dr. Ko's findings that Plaintiff should avoid repetitive, forceful, strenuous, twisting, or jerky activities, as well as pulling, pushing, bending, lifting, or carrying heavy objects, were supported by the medical record as a whole, and were based on Dr. Ko's treating relationship with Plaintiff. (Id.) Finally, the ALJ discounted the opinions of Drs. Delman and Reyfman that Plaintiff was 80% disabled and unable to work in any capacity, assigning those opinions "little weight." (Id.) The ALJ wrote that the "overall treatment record, which shows conservative care, and some improvement and stability with treatment, does not establish an inability to adjust to other less demanding types of work." (Id.)

D. Steps Four and Five of the Sequential Evaluation

At Step Four, the ALJ determined that Plaintiff was unable to perform any past relevant work, based on the testimony of VE Vaughn, Plaintiff's work history report and earning records. (Id. at 27.)

At Step Five, the ALJ determined that Plaintiff's ability to perform all or substantially all of the requirements of "light work" was impeded by additional limitations. (See id. at 28.) The ALJ relied on VE Vaughn to determine the extent to which those additional limitations eroded the unskilled light occupational base through Plaintiff's last insured date. (Id.) Ultimately, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, considering his age, education, work experience, and RFC, including cafeteria attendant (DOT No. 311.67-010), presser (DOT No. 363.685-010), and mail clerk (non-postal) (DOT. No. 209.687-026). (Id.)

The ALJ concluded that Plaintiff had not been under a disability, as defined in the Act, at any time from April 10, 2013, the alleged onset date, through December 31, 2013, the date he was last insured. (Id.)

III. REVIEW OF THE ALJ'S DECISION

Rather than address Plaintiff's arguments in the order in which they are raised in his brief, this Court will adopt Defendant's approach of first addressing Plaintiff's final argument (that the ALJ erred by failing to provide a sufficient analysis as to whether Plaintiff's physical impairments met the criteria of a Listing), given that it relates to an earlier step of the five-step sequential evaluation than do Plaintiff's other arguments. This Court will then proceed to consider Plaintiff's additional arguments, including whether, in reaching his determination that Plaintiff was not disabled, the ALJ neglected to give adequate consideration to certain findings and opinions of Plaintiff's treaters.

A. Alleged Insufficiency of the ALJ's Determination , at Step Three, That Plaintiff's Impairments Did Not Meet or Equal Listing 1.04

The ALJ determined that Plaintiff's impairments did not meet the requirements of Listing 1.04 (disorders of the spine) because, according to the ALJ, the available evidence did not show that Plaintiff exhibited "each of the neurological deficits" necessary for that Listing. (Id. at 22.) In reaching this conclusion, the ALJ noted that there was "a minimum of objective evidence relating to [Plaintiff's] April [10], 2013 work-related injury prior to the date last insured," which was December 31, 2013 (Id.) Given the dearth of evidence from the covered period in 2013, the ALJ looked to the later years of 2014 and 2015, and, in particular, found it significant that, during "much of that period," Plaintiff "had normal sensation and reflexes in his lower extremities." (Id. at 22.) Plaintiff, however, in his motion for judgment in his favor, argues that the Record contained "extensive evidence" that would support a finding that Listing 1.04 was met. (Pl. Mem., at 15.)

This Court agrees with Plaintiff - but only to the point of recommending that the matter be remanded with a direction to the ALJ (1) to discuss, more fully, the evidence that could support a finding that the Listing was met for the covered period from April 10 to December 31, 2013, and then through April 10, 2014, (2) to develop the Record to address omissions from Dr. Reyfman's treatment notes of information relevant to the question of whether Plaintiff satisfied the Listing criteria for a continuous 12-month period, and (3) to resolve any conflicting medical evidence, as necessary. Certain of the evidence in the Record that needs to be addressed, further developed, or reconciled dates to the period when Plaintiff was insured; some of it dates to the months immediately following that period; and some of it post-dates even April 2014. As noted above, however (see supra, at n.16), and as the ALJ himself appeared to recognize, Plaintiff's later treatment records and medical evaluations contain information that either may relate back to the insured period or may be probative on the question of whether Plaintiff's impairments persisted for the requisite 12-month period.

1. Requirements of the Listing , Including Subpart (A)

Although neither the ALJ, in his determination, nor Plaintiff, in his memorandum, have specified which subpart of Listing 1.04 is applicable to this action, this Court accepts Defendant's position that, in this case, the only applicable subpart is Listing 1.04(A).³⁵ That subpart provides, in relevant part:

35 Alternatively, a claimant may also satisfy Listing 1.04 if, under subsection (B), the claimant shows spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours; or, under subsection (C), the claimant shows lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively. Neither of these subsections are applicable here. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04.

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)[.]

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A). To satisfy Listing 1.04(A), it is the plaintiff's burden to "demonstrate that [his] disability [meets] 'all of the specified medical criteria' of a spinal disorder." Otts v. Comm'r of Soc. Sec., 249 Fed. App'x 887, 888 (2d Cir. 2007) (Summary Order) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990) and citing Rosa, 168 F.3d at 77). "[A]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530 (citation omitted). Here, conflicting medical evidence left unaddressed by the ALJ, combined with significant omissions in Plaintiff's medical records, render this Court unable to conclude that the ALJ's ultimate decision that Plaintiff failed to satisfy Listing 1.04(A) was supported by substantial evidence. See Singleton v. Astrue, No. 08cv2784 (SCR) (PED), 2009 WL 6325521, at *6 (S.D.N.Y. Aug. 13, 2009) (where the court's review of the medical evidence indicated that ALJ's decision was not supported by substantial evidence, the decision was subject to remand for further clarification on whether plaintiff met the requirements of Listing 1.04, or as an explanation as to why plaintiff did not meet the requirements), report and recommendation adopted, 2010 WL 1328976 (Apr. 5, 2010).

2. Evidence in the Record of a "Disorder" Potentially Capable of Meeting the Threshold Requirement of the Listing

Defendant argues that Plaintiff has not met his burden of making even the threshold showing that is needed for Listing 1.04 (as stated above, evidence of a "[d]isorder of the spine (e.g., herniated nucleus pulpous, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture) resulting in compromise of a nerve root (including the cauda equina) or the spinal cord"), as the Record contains no diagnostic imaging showing any of the "disorders" specifically enumerated in the Listing. (See Def. Mem., at 5-6.) Although Plaintiff's April 2013 MRI indicated facet hypertrophy (R at 414-15), Defendant argues that, because facet hypertrophy is not one of the enumerated disorders, it cannot suffice to meet the threshold requirement (Def. Mem., at 5-6).

Listing 1.04, however, covers "[d]isorders of the spine . . . resulting in compromise of a nerve root . . . or the spinal cord," 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04, and the enumerated disorders are provided only as examples (see id. (identifying various disorders as illustrative, by using the signal "e.g.")), not as an exhaustive list. Moreover, as facet hypertrophy may suggest the presence of degenerative disc disease³⁶ (see supra at n.7), which is actually one of the enumerated examples, this Court finds that the ALJ could have determined, based on medical evidence in the Record, that the threshold showing was made, or that Plaintiff had shown that his disorder at least "equaled" a Listing in severity. See 20 C.F.R. § 404.1520(a)(4)(iii) (stating that an impairment need only "meet[] or equal[]" a Listing, at Step Three).

36 Degenerative disc disease "refers to symptoms of back or neck pain caused by wear-and-tear on a spinal disc. In some cases, degenerative disc disease also causes weakness, numbness, and hot, shooting pains in the arms or legs (radicular pain). Degenerative disc disease typically consists of a low-level chronic pain with intermittent episodes of more severe pain." What is Degenerative Disc Disease? https://www.spine-health.com/conditions/degenerative-disc-disease/what-degenerative-disc-disease

3. Evidence in the Record Potentially Capable of Satisfying the Subpart (A) Criteria

Following the threshold showing, Listing 1.04(A) then requires satisfaction of four additional sub-criteria: (1) "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain," (2) "limitation of motion of the spine," (3) "motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss," and (4) "if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04(A).

With respect to these four sub-criteria, Plaintiff points to evidence in the Record that he had experienced tenderness in his lower back, was diagnosed with lumbar spine strain with a reduced range of motion in the spine, had diminished motor strength in his right foot, right hip, knee, and ankle extensor and diminished sensation in L4-5 and L5-S1, and had tested positive for straight-leg raising and facet loading. (Pl. Mem., at 15.)

Defendant, on the other hand, argues that, while some "minimal" objective evidence from 2014 showed neurological deficits, Plaintiff has not demonstrated that he exhibited each of the deficits required by Listing 1.04(A). (See Def. Mem., at 6.) Specifically, Defendant argues that, based on the Record, Plaintiff's diminished sensation was only in the L4-5 distribution, and had improved within one year of the accident; that, by February 2014, Dr. Reyfman found no neurological deficits and Plaintiff was no longer complaining of numbness and tingling; that, during follow-up visits in April and May of 2014, Dr. Reyfman found no neurological deficits, and, in June and July of 2014, found that Plaintiff had normal pinprick and light touch sensation; that, while reduced reflexes were observed in January 2013 and January 2014, the majority of the time, Dr. Reyfman observed normal reflexes; and, finally, that, although Drs. Delman and Reyfman both indicated positive straight leg raising in 2013, Plaintiff's straight leg raising test was negative in November 2015, when he was examined by Dr. Meisel. (Id.) Defendant further contends that there was no evidence of motor loss, that Plaintiff denied experiencing muscle weakness (id. at 6-7), and that, in any event, Plaintiff's neurological signs did not persist for a consecutive 12-month period (id. at 7).

Having independently reviewed the Record, this Court concludes that it contains conflicting evidence, as well as important omissions, relevant to the question of whether Listing 1.04(A)'s sub-criteria could be found to have been satisfied, that were not addressed by the ALJ.

a. Nerve Root Compression With Pain

The Record contains evidence that, during the period when he was insured, Plaintiff was diagnosed with lumbar radiculopathy and lumbosacral neuritis radiculopathy, which involve the nerve roots and inflammation of the nerves. (See R. at 298, 375, 383, 398-99.) Although a diagnosis of radiculopathy could have served as a basis for satisfying the first sub-criterion, see Norman v. Astrue, 912 F. Supp. 2d 33, 78 (S.D.N.Y. 2012) (noting that lumbar radiculopathy evidenced nerve root compression), the ALJ did not address this condition at Step Three. While, in February 2014, Dr. Reyfman omitted lumbosacral neuritis radiculopathy from his diagnosis (see R. at 288), by April of 2014, Dr. Reyfman again indicated that Plaintiff showed signs of radiculopathy (id. at 272 ("Physical findings are demonstrable of restricted lumbar and lumbosacral range of motion. Particularly, given these complaints and symptoms, and signs of radiculopathy, MRI of the lumbar spine is indicated." (emphasis added))). Then, in August 2015 and October 2015, Dr. Reyfman actually re-diagnosed Plaintiff with lumbosacral neuritis radiculopathy. (Id. at 356-57.) Based on what thus appears to have been a persistent condition, during and subsequent to the insured period, the ALJ could have determined that the first sub-criterion was met for the necessary 12 months.

b. Limitation of Motion of the Spine

The second sub-criterion of Listing 1.04(A) is "limitation of motion of the spine." The ALJ did not address whether Plaintiff's spinal range of motion was limited, and this Court finds that, while much of the Record suggests that Plaintiff did have this limitation, some records from the relevant period omit pertinent information on this point.

For at least nine months, from Plaintiff's alleged onset date of April 2013 through January 2014, the Record reflects that Plaintiff's spine did, indeed, have limited range of motion. Specifically, in April, May, and June of 2013, Dr. Delman found, upon musculoskeletal examinations, that Plaintiff's range of motion was impaired, and that there was tenderness and spasm in Plaintiff's lumbar paraspinal musculature. (Id. at 374, 377-78, 384.) Dr. Tolat likewise determined, in May 2013, that Plaintiff's lumbar spine was restricted by pain. (Id. at 435.) In line with Dr. Delman's and Dr. Tolat's treatment notes, Dr. Reyfman similarly assessed, in June through November of 2013 and again in January of 2014,³⁷ that Plaintiff's lumbar spine and pelvis had limited range of motion. (See id. at 297, 398, 402, 406, 410.)

37 The Record does not indicate that Plaintiff was examined by Dr. Reyfman, or by any other physicians, in December 2013.

For the 11 months from February through December 2014, however, Dr. Reyfman's medical treatment notes omit any mention of Plaintiff's spinal range of motion. (See id. at 230, 235, 255, 267, 272, 275, 303, 309, 314.) Then, from January through October of 2015, Dr. Reyfman again found restricted range of motion. (See id. at 317, 321, 326, 330, 338, 353, 356, 360.) It is not clear from the records whether Dr. Reyfman found that Plaintiff had an unrestricted range of motion for most of 2014, or if he merely failed to record positive findings. This represents a significant gap in the medical evidence that the ALJ should have attempted to fill in, by making an inquiry of Dr. Reyfman. If no further information could be obtained, then the ALJ should at least have addressed the initial and later medical findings, and made an explicit determination as to whether the absence of evidence for the interim period from February of 2014 through January of 2015 was sufficient to preclude satisfaction of the second sub-criterion of Listing 1.04(A).

c. Motor Loss With Sensory or Reflex Loss

The third sub-criterion of Listing 1.04(A) is "motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss." See 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 1.04(A). As to whether this requirement was satisfied, the Record contains conflicting evidence.

First, as to motor loss, the medical evidence indicates that, generally, from June 2013 through January 2015, Plaintiff exhibited loss of motor function. (See R. at 235, 255, 297, 303, 309, 317, 398, 402 (noting loss of motor function to "4/5 knee extension and hip flexors" or "hip extensors, ankle extensors, knee flexors 4/5").) Beginning in March 2015, Dr. Reyfman did not detect any motor loss (see, e.g., id., at 326, 330, 338, 353, 356), but, in November 2015, shortly after Dr. Refyman last saw Plaintiff, Dr. Meisel reportedly found that Plaintiff could neither walk on his toes nor his heels, and that his squat was limited to 20 percent, which, this Court notes, may indicate motor loss and muscle weakness (id. at 341; see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(E)(1) (noting that "significant motor loss" may be shown by an "[i]nability to walk on the heels or toes, to squat, or to arise from a squatting position"); see also Olechna v. Astrue, No. 08cv398, 2010 WL 786256 at *6 (N.D.N.Y. Mar. 3, 2010) (adopting report and recommendation) (noting that "[p]laintiff's muscle weakness was also documented in his inability or difficulty with heal and toe walking")). The ALJ did not address, let alone resolve, these conflicting findings, in the context of his consideration of Listing 1.04(A), or explicitly draw any inferences from them, and he should have explained whether, taken as a whole, the Record did, or did not, show motor loss for a 12-month period, as necessary to satisfy this Listing requirement.

Second, with respect to either sensory or reflex loss - one of which is also necessary to satisfy the third sub-criterion, see 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 1.04(A); Schieno v. Colvin, No. 15cv0335 (GTS), 2016 WL 1664909, at *6 (N.D.N.Y. April 26, 2016) - the Record reflects that, in April 2013, shortly after Plaintiff's accident, Dr. Delman found diminished sensation in Plaintiff's right leg. (See R. at 375, 378.) Likewise, in May 2013, Dr. Tolat found that Plaintiff's sensation to light touch and pinprick was "decreased in the right lower extremity." (Id. at 435.) Similarly, throughout 2013 and in January of 2014, Dr. Reyfman and Dr. Ko, respectively, assessed that "pin prick and light touch [were] decreased in [Plaintiff's] L5 and S1." (See, e.g., id. at 297, 398, 402, 406, 410.) From February through May of 2014, however, Dr. Reyfman omitted any reference to the issue of sensation from his treatment notes. (Id. at 267, 272, 291.) Then, from June through December of 2014, Reyfman indicated that he found no sensory diminishment. (See, e.g., id. at 235, 255, 303, 309, 314.) In contrast, Dr. Reyfman's treatment notes from January through October 2015 then indicated "decrease[d] light touch on [Plaintiff's] right leg" (id. at 321, 326, 330, 333, 338, 353, 356, 360), though Dr. Meisel's consultative report from November 2015 indicated "[n]o sensory abnormality" (id. at 341).

Although the ALJ stated, in his decision, that Plaintiff's impairments did not meet the requirements of Listing 1.04(A) because the evidence showed that Plaintiff had normal sensation and reflexes in 2014 and 2015 (id. at 22), the ALJ failed to explicitly reconcile any of the above-noted evidence to the contrary, and also failed to make any effort to develop the Record regarding whether Plaintiff experienced sensory diminishment in February through May of 2014. See Rosa, 168 F.3d at 79 (concluding it was error for the ALJ to attach significance to omissions by a physician, rather than seeking more information). Further, while Defendant correctly points out that the medical evidence did largely indicate that Plaintiff's reflexes were normal (but, see, e.g., id. at 297, 398), this Court again notes that, under the applicable SSA regulations, only sensory or reflex loss must be shown to satisfy Listing 1.04(A), not both. See 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 1.04(A); see also Schieno, 2016 WL 1664909, at *6. Thus, even if Defendant is correct that the ALJ's analysis needs no clarification with respect to his determination that Plaintiff had normal reflexes, the same cannot be said with respect to his determination that Plaintiff also had normal sensation for the period at issue.

d. Positive Straight Leg Raising Test

The final sub-criterion of Listing 1.04(A), where involvement of the lower back is implicated, is "positive straight-leg raising test (sitting and supine)." See 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 1.04(A). Defendant concedes that Plaintiff had positive straight leg raising tests "on a few occasions in 2013," but nevertheless maintains that this requirement was not satisfied because Dr. Meisel assessed a negative (i.e., normal) result on Plaintiff's straight leg raising test in November 2015. (Def. Mem., at 6.)

This Court finds that Defendant has over-simplified the medical evidence on this point. In May of 2013, Dr. Delman first indicated that Plaintiff's "[s]traight leg raise is positive on the right." (R. at 378.) Thereafter, Dr. Reyfman found that Plaintiff tested positive on the Lasegue test in 2013 (see id. at 398, 402, 406), for much of 2014 (see id. at 230, 235, 241, 255, 303, 309) (although as noted above, his treatment notes for February, April and May 2014 omit such test results (see id. at 267, 272, 291)), and in 2015 (see id. at 314, 321, 326, 333). It was the role of the ALJ to address the findings reflected in Dr. Reyfman's medical treatment notes from 2013, 2014, and 2015 (including any pertinent omissions) and reconcile them with Dr. Meisel's November 2015 finding, to the extent the ALJ found Dr. Meisel's finding relevant, and the ALJ failed to engage in any such analysis.

4. Appropriateness of Remand

When an ALJ fails to set out his reasoning as to why a Listing has not been met, remand is not necessarily required. If "other portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence," then the court may uphold the decision. Berry, 675 F.2d at 468. Where, however, the court is "unable to fathom the ALJ's rationale in relation to evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ," id., then the matter should be remanded for further explanation, see, e.g., Perozzi v. Berryhill, 287 F. Supp. 3d 471, 483 (S.D.N.Y. 2018) (collecting cases); Rivera v. Astrue, No. 10cv4324 (RJD), 2012 WL 3614323, at *11-12 (E.D.N.Y. Aug. 21, 2012) (remanding where ALJ had failed to provide specific rationale as to why plaintiff did not meet the listing requirements, and where the balance of the evidence did not permit the court to glean the ALJ's rationale).

In this case, this Court has no basis from which to ascertain why the ALJ seemingly chose to rely on certain evidence, weighing against a finding that Plaintiff had a Listing-level impairment of sufficient duration to be considered disabling, and not to rely on other evidence, weighing in favor of such a finding. On this point, this Court is not persuaded by Defendant's characterization of the clinical notes that supported Plaintiff's position as merely "a few scattered (and mostly mild) observances." (See Def. Mem., at 7.) Nor is this Court persuaded by Defendant's argument that, regardless of the potential severity of Plaintiff's impairments at his claimed disability onset date, his "neurological . . . signs did not persist for the [12-month] duration [] required by the Act." (Id.) Although Defendant's contention may ultimately prove true, the ALJ could not have made that determination without resolving the conflicting evidence in the Record, an exercise that should have included further developing the Record to account for the omissions noted above, and, again, neither his decision nor the Record reflects that he undertook these tasks. See Ridge v. Berryhill, 294 F. Supp. 3d 33, 57-58 (E.D.N.Y. Mar. 30, 2018) (where the ALJ failed to explain why plaintiff did not meet the listing requirements, the government's argument that the duration requirement was not met was unavailing, as the record evidenced persistence of symptoms past the 12 month period); see also Correale-Englehart v. Astrue, 687 F. Supp. 2d 396, 425 (S.D.N.Y. 2010) (holding that the ALJ should not have relied on an omission in the record in finding that plaintiff was not disabled, as this constituted mere speculation by the ALJ). Finally, this Court notes that the ALJ's stated analysis, at the other steps of the sequential analysis, do not shed light on how he reached his determination at Step Three.

In the absence of an explanation of the conflicting evidence as to Listing 1.04(A), this Court cannot reasonably infer that there was "sufficient uncontradicted evidence in the record to provide substantial evidence for the conclusion that Plaintiff failed to meet [S]tep [T]hree." Sava v. Astrue, 06cv3386 (KMK) (GAY), 2010 WL 3219311, at *4 (S.D.N.Y. Aug. 10, 2010) (adopting report and recommendation); see also Crump v. Astrue, No. 6cv1003 (NAM/DRH), 2009 WL 2424196, at *6 (N.D.N.Y. Aug. 5, 2009) (holding that ALJ's determination that plaintiff did not meet Listing 1.04(A) requirements was not supported by substantial evidence, as the ALJ improperly disregarded portions of the record and failed to consider treatment records and opinions that provided evidence of limitation of motion, sensory or reflex loss, and positive straight leg raising).

I therefore recommend that the matter be remanded, with instructions to the ALJ to resolve the conflicting evidence, to take appropriate steps to develop the Record to fill in the gaps in information identified above, see Rosa, 168 F.3d at 79, and, in light of the Record as a whole, to "provide an explanation of his reasoning as to why he believes the requirements [of the Listing] are not met and explain the credibility determinations and inferences he drew in reaching that conclusion," Ryan v. Astrue, 5 F. Supp. 3d 493, 509 (S.D.N.Y. 2014) (citations omitted); accord Perozzi, 287 F. Supp. 3d at 486.

B. Alleged Failure by the ALJ To Consider or Give Adequate Weight to Findings and Opinions of Plaintiff's Treating Physicians

Plaintiff also argues in his motion that, in several ways, the ALJ erred by failing either to give explicit consideration to medical findings or diagnoses of Plaintiff's treaters, or to weigh the treaters' opinions properly under the treating physician rule. This Court addresses Plaintiff's various, interrelated arguments on these points below.

1. Dr. Tolat's Finding That Plaintiff Had Lumbar Radiculopathy

Plaintiff contends that the ALJ "failed to consider evidence of [P]laintiff's lumbar radiculopathy," as found by Dr. Tolat, upon an electrodiagnostic evaluation. (Pl. Mem., at 11; R. at 437.) Courts in this Circuit have consistently held that an ALJ's failure to acknowledge relevant evidence or explain its implicit rejection is plain error. See Smith v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988); Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 57 (W.D.N.Y. 2002) (quoting Pagan v. Chater, 923 F. Supp. 547, 556 (S.D.N.Y. 1996)). In this instance, Plaintiff is correct that the ALJ's decision makes no mention of the fact that Plaintiff was diagnosed with radiculopathy (see R. at 437), and, consequently, it is entirely unclear whether the ALJ considered that diagnosis in his evaluation of the evidence.

Moreover, evidence of Plaintiff's radiculopathy specifically pertains to the question of whether Plaintiff satisfied the Listing 1.04(A) criteria, as discussed above, as well as to the question of whether Plaintiff experienced sufficient improvement in his symptoms during the relevant period to disqualify him for benefits. While the ALJ emphasized his view that, regardless of the functional limitations that Plaintiff may have experienced in the immediate aftermath of the accident, his symptoms later improved to the point where they could no longer be considered disabling under the Act (see R. at 23-24), the ALJ's analysis seemingly failed to take into account that Plaintiff was not only diagnosed with radiculopathy by Dr. Tolat in 2013, but also that he was also diagnosed with, or at least showed signs of, this condition in 2013, 2014, and 2015, as per the treatment notes of Dr. Reyfman. Rather than suggesting sustained improvement, these repeat diagnoses arguably suggest a persistent condition, with interim periods of only temporary relief that Plaintiff may have gained from medication or medical procedures. See Coughlin v. Sec'y of Health and Human Servs., 671 F. Supp. 138, 141 (E.D.N.Y. 1987) ("[A] temporary improvement in the claimant's condition does not warrant a finding that the individual is no longer disabled"); Zettlemoyer ex rel. P.M.R. v. Astrue, 945 F. Supp. 2d 387, 390 (W.D.N.Y. 2013) (holding that a single, temporary period of control of claimant's condition (juvenile diabetes), did not indicate that claimant's condition was not disabling). Accordingly, I recommend that, upon remand, the ALJ be directed to give explicit consideration to Plaintiff's lumbar radiculopathy, at all steps in the five-step evaluation where the fact of that condition - and the dates when it was diagnosed - would potentially be relevant.

2. Dr. Ko's Findings of Limitations

Plaintiff also contends that the ALJ rendered an inconsistent decision, by acknowledging that the opinion provided by Dr. Ko regarding Plaintiff's "function-by-function limitations" was entitled to "some weight," as it "was 'consistent with the medical record as a whole, and [was] based on a treating relationship with the claimant,'" but by nonetheless failing to incorporate those limitations into his determination of Plaintiff's RFC. (Pl. Mem., at 11-12 (quoting R. at 26).) Defendant, in response, argues that the ALJ's RFC assessment "[did] not have to mirror Dr. Ko's opinion," that Plaintiff has not actually "pointed to any part of Dr. Ko's opinion that is inconsistent with the RFC finding," and that "the ALJ reasonably concluded that Dr. Ko's opinion . . . did not preclude light work." (Def. Mem., at 9.)

As set out above (see Background supra, at Section (C)(2)(a)), Dr. Ko opined that Plaintiff should avoid "repetitive, forceful, strenuous, twisting, jerky activities," as well as "activities like pulling, pushing, bending, lifting, or carrying anything heavy." (R. at 298.) As to these types of restrictions, the ALJ's RFC determination reflected only that Plaintiff had the RFC "to perform a range of light work as defined in 20 CFR 404.1567(b)," specifically, in relevant part, that he could only "lift and/or carry 20 pounds occasionally [and] 10 pounds frequently." (Id. at 22.) As a general matter, this Court finds that, while Dr. Ko's and the ALJ's assessments do not precisely align, the ALJ was not required to adopt, wholesale, every limitation found by Dr. Ko into the RFC determination. See Attendorn v. Comm'r of Social Sec., No. 12cv5 (DNH/ATB), 2012 WL 6680375 at *13 (N.D.N.Y. Nov. 12, 2012) (noting that it is the obligation of the ALJ, not the physician, to assess a claimant's exertional capabilities on a function-by-function basis), report and recommendation adopted, 2012 WL 6680374 (Dec. 21, 2012). Moreover, as Defendant points out (see Def. Mem., at 9-10), the ALJ's RFC recommendation was largely consistent with Dr. Ko's opinion, as well as the SSA regulations defining "light work." See 20 CFR § 404.1567(b).

Nonetheless, this Court does note that two of the limitations found by Dr. Ko, and, for that matter, by Dr. Reyfman, as well (see R. at 398) - i.e., limitations on Plaintiff's ability to engage in "repetitive" activity, and to engage in activities involving "pushing or pulling" - are at odds with the ALJ's RFC determination, and the ALJ did not explain why he excluded these limitations. It is likely that at least one, if not more, of the jobs identified by VE Vaughn would require repetitive activity,³⁸ and it is thus possible that the ALJ's ultimate disability determination would have been different had this limitation been included in Plaintiff's RFC. Further, while the ALJ found that, due to certain restrictions, Plaintiff could not perform the full range of "light work," the ALJ never sought to assess the degree to which "the unskilled light occupational base," may have been further "erode[d]" (see R. at 28) by any inability of Plaintiff to push or pull.³⁹

38 In particular, one of the jobs identified by the VE was "Presser," DOT No. 311.677-010 (see R. at 28), a job that would plainly seem to require repetitive activity. This job, more fully titled "Press Operator" or "Wearing-Apparel Presser" in the DOT, is described therein as follows: "Tends pressing-machine (hot-head type) to press washed wearing apparel, such as uniforms, jackets, aprons, and shirts: Smooths section of garment on buck (table) of machine, and moistens dry portions of garment with wet cloth or water spray. Pushes buttons to lower pressing head of machine to press and dry garment. Rearranges garment on buck, repeating process until pressing is completed. May work as part of team and press only portion of garment. May tend two or three presses simultaneously, positioning garment on one press while other presses are closed."

39 "To be considered capable of performing a full range of light work" under the regulatory definition, a person "must have the ability to do substantially all of the[] activities" identified in that definition, and, for a job that would "involve[] sitting most of the time," those activities would include "some pushing and pulling of arm and leg controls." 20 C.F.R. 404.1567(b).

While the ALJ was not required to include these additional limitations in his RFC determination, this Court is unable to discern his reasoning as to why he omitted them. As their inclusion in Plaintiff's RFC might have resulted in a different outcome, I recommend that, upon remand (if the ALJ again finds at Step Three, that Plaintiff's impairments do not meet or equal a Listing), the ALJ be directed to reconsider his prior RFC determination in light of the above. If he should again determine that Plaintiff is not required to avoid repetitive activities or ones that require pushing or pulling, then the ALJ should be directed to explain his rationale for that determination.

3. Weight Assigned To Treating Physician Opinions

Plaintiff finally argues that the ALJ erred by failing to comply with the treating physician rule, specifically with respect to the weight he assigned to the opinions of Drs. Delman and Reyfman. (Pl. Mem., at 11, 12-14.) In this regard, the ALJ wrote only the following:

. . . Dr. Delman . . .and Dr. Reyfman . . . have provided . . . Worker's Compensation-specific language regarding the claimant's work limitations, as expressed in 2013, shortly after the injury . . . I have reviewed these statements, but find assertions such as 'unable to work safely in any capacity' . . . or '80% disabled' . . . to be entitled to only little weight in the analysis. The overall treatment record, which shows conservative care, and some improvement and stability with treatment, does not establish an inability to adjust to other less demanding types of work such as the claimant has done previously . . . .

(R. at 26 (citations to the Record omitted).) Plaintiff argues that, absent a multi-factor, "comprehensive explanation for his reasoning," (Pl. Mem., at 13-14), the ALJ should have accorded the opinions of these treaters controlling, or at least "considerable," weight (id., at 12), whereas Defendant contends that the ALJ's decision was actually well supported by the medical opinion evidence and that the ALJ's discussion of the Record was adequate (see Def. Mem., at 10-13).

As a preliminary matter, this Court finds that Dr. Delman, who apparently saw Plaintiff on only three occasions, in just the first two months after his injury (from April 15 to June 10, 2013), did not develop a sufficient "longitudinal" treatment relationship with Plaintiff to qualify as a "treating physician" for purposes of the treating physician rule. See, e.g., Wilson v. Colvin, No. 6:16cv06509 (MAT), 2017 WL 2821560, at *4 (W.D.N.Y. June 30, 2017) (collecting cases, and stating that provider "[did] not count as a 'treating physician' because he did not have a longitudinal treating relationship with [p]laintiff"); see also Aden v. Barnhart, No. 01cv5179 (LAK) (RLE), 2003 WL 1090324, at *8 (S.D.N.Y. Mar. 6, 2003) (holding that the opinion of a physician who had seen plaintiff "only three times over the course of six months" was not entitled to controlling weight), report and recommendation adopted, 2003 WL 21361723 (June 12, 2003).

As for Dr. Reyfman, who did qualify as a "treating physician" for purposes of the rule, his June 18, 2014 opinion (given in a report to the New York State Worker's Compensation Board) that Plaintiff was 80% disabled (R. at 256)) did not have to be given significant weight by the ALJ. As Defendant correctly points out, "[t]he Workers' Compensation Board uses a different standard for disability than that used by the Commissioner" (Def. Mem., at 12), and, "[i]n any event, opinions as to whether an individual is 'disabled' under the act are reserved to the Commissioner, and are therefore not entitled to any special significance" (id. (citing 20 C.F.R. § 404.1527(d)(1); SSR 96-5p, 1996 WL 374183, at *2; Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999))).⁴⁰

40 For the same reasons, it would have been improper for the ALJ to have given controlling weight to Dr. Reyfman's opinion, expressed in the same June 2014 MMI Form, that Plaintiff was capable of performing "Light Work." (R. at 246.) This type of determination was also reserved for the Commissioner, to be made under applicable federal standards. See Wilbur v. Colvin, No. 13cv110, 2014 WL 2434955, at *3-4 (N.D.N.Y. May 30, 2014) (noting that evidence of a claimant's disability for workers' compensation purposes is not directly relevant to the standard of disability under the Act).

What remains for consideration, though, are the other opinions expressed by Dr. Reyfman over time, including his opinions as to Plaintiff's specific impairments and functional limitations, as provided not only in his June 2014 report, but also in both his earlier and later treatment records. Although the ALJ did not state this explicitly, he effectively gave controlling weight to certain of the opinions reflected in Dr. Reyfman's June 2014 MMI Form - including, for example, Dr. Reyfman's opinions that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently (see R. at 246) - by incorporating them into Plaintiff's RFC (see id. at 22).⁴¹ The ALJ, however, did not include in the RFC other significant findings made by Dr. Reyfman, either those findings set forth in his June 2014 MMI Form, or at other points in time. For example, as noted above, he did not adopt Dr. Reyfman's findings that Plaintiff was restricted from engaging in repetitive activities, and had limitations in his ability to push and pull. Nor did the ALJ accept, or even mention in his decision, certain of the diagnoses made by Dr. Reyfman, both during and after the coverage period, such as his repeated diagnosis of radiculopathy (as discussed above), or his diagnoses of lumbar facet syndrome and lumbar disc displacement. (See id. at 398, 406.)

41 The ALJ also largely incorporated into his RFC determination Dr. Reyfman's June 2014 findings (R. at 246) that Plaintiff could sit, stand, walk and climb frequently, and could kneel and bend, stoop, and squat occasionally (see id. at 22 (the ALJ's determination that Plaintiff could stand and/or walk (with normal breaks) for up to six hours in an eight-hour workday; could sit (with normal breaks) for up to six hours in an eight-hour workday; could never climb ladders, ropes or scaffolds, or kneel or crawl; and could occasionally climb ramps and stairs, and balance, stoop, and crouch)).

The ALJ was not entitled to disregard or discount Dr. Reyfman's clinical findings and diagnoses that may have supported a disability determination, without providing good reasons for doing so. Here, the ALJ seemed to rely on his assessments that Plaintiff had received "conservative care," and that he had shown "some improvement and stability with treatment" to justify discounting almost any findings by Dr. Reyfman that would have favored Plaintiff's disability claim. (Id. at 26.) The Record shows, however, that the first of these justifications is flawed, and the second has not been adequately explained.

With respect to the notion of Plaintiff's "conservative care," an ALJ is generally not entitled "to impose his notion that the severity of a physical impairment directly correlates with the intrusiveness of the medical treatment ordered." See Shaw, 221 F.3d at 134 (holding that ALJ and district court improperly characterized conservative therapy as substantial evidence that claimant was not disabled during the relevant period). Moreover, contrary to the ALJ's conclusion here, the medical evidence in the Record reflects that conservative therapy was actually insufficient to relieve Plaintiff's symptoms. In fact, Dr. Reyfman and Dr. Ko each opined that Plaintiff had actually experienced only "minimal improvement with conservative therapies" and that, therefore, epidural steroid injections and an ablation procedure (both of which Plaintiff then underwent) were necessary. (Id. at 298, 399 (emphasis added); see also id. at 296, 409.)

As for Plaintiff's purported improvement and the supposed stabilization of his conditions with treatment, this Court again notes - as it did with respect to the ALJ's Step Three analysis - that the Record is replete with conflicting, and, at times, missing evidence regarding the extent of any improvement that Plaintiff may have experienced as a result of treatment, and as to the duration of any such improvement. Dr. Reyfman's records do indicate that, on a visit in April 2014, a year after Plaintiff's accident, Plaintiff reported decreasing levels of pain (id. at 271), and that, at that time, Dr. Reyfman found only moderate tenderness in Plaintiff's lower back (id. at 272). Still, as discussed above, Dr. Reyfman made other findings that were potentially indicative of one or more disabling conditions both before and after that date. (See Discussion supra, at Section III(B)(3).) The ALJ should have reconciled the conflicting evidence from Dr. Reyfman and explained his basis for doing so, not only in performing the Step Three analysis, but also in connection with any determination of the weight to be given to Dr. Reyfman's various medical opinions. Also, once again, the ALJ should have appropriately developed the Record with regard to the omissions noted above, as well as with respect to any additional information the ALJ may have needed to reconcile the conflicting evidence.

CONCLUSION

For the foregoing reasons, I respectfully recommend that Plaintiff's motion remanding this case for a new hearing (Dkt. 10) be granted, and that Defendant's cross-motion (Dkt. 12) be denied. I further recommend that, upon remand, the ALJ be directed as follows:

(1) To engage in a full analysis as to whether, for the covered period, Plaintiff had an impairment or combination of impairments that met or equaled Listing 1.04(A), reconciling, and developing, the Record with respect to the conflicting evidence and omissions, as necessary, to make that analysis; and

(2) If the ALJ again determines that Plaintiff did not have a spinal disorder that met or equaled the Listing, then to consider, in his RFC determination and at the remaining steps of the sequential evaluation, (a) Plaintiff's diagnoses of lumbar radiculopathy, (b) Dr. Ko's (and Dr. Reyfman's) findings that Plaintiff should avoid repetitive activities and activities involving pushing or pulling, and (c) the various medical opinions given by Dr. Reyfman over the full course of his treatment of Plaintiff, reconciling any conflicts in those opinions, and developing the Record with regard to omissions in those opinions, and weighing them in accordance with the treating physician rule.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Edgardo Ramos, United States Courthouse, 40 Foley Square, Room 619, New York, NY 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, NY 10007. Any requests for an extension of time for filing objections should be directed to Judge Ramos. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

July 16, 2018

Respectfully submitted,

/s/_________

DEBRA FREEMAN

United States Magistrate Judge

Copies to:

Hon. Edgardo Ramos, U.S.D.J. All counsel (via ECF)