Albino v. Berryhill

Full title: ONIELL ALBINO, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: May 29, 2019

18 Civ. 6514 (LGS)(HBP) (S.D.N.Y. May. 29, 2019)

Opinion

18 Civ. 6514 (LGS)(HBP)

05-29-2019

ONIELL ALBINO, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security Defendant.

PITMAN, United States Magistrate Judge

REPORT AND RECOMMENDATION

:

TO THE HONORABLE LORNA G. SCHOFIELD, United States District Judge,

I. Introduction

Plaintiff brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("DIB"). Plaintiff has moved for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure ¹ (Docket Item ("D.I.") 14) and the Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (D.I. 19). For the reasons set forth below, I respectfully recommend that plaintiff's motion be granted and the Commissioner's motion be denied. II. Facts ²

1 Given the nature of the proceedings -- an action to review a final decision of the Commissioner -- it makes no difference whether I deem plaintiff's motion to be a motion for judgment on the pleadings or a motion for summary judgment.

2 I recite only those facts relevant to my resolution of the pending motions. The administrative record that the Commissioner filed pursuant to 42 U.S.C. § 405(g) (see Notice of Filing for Administrative Record, dated October 30, 2018 (D.I. 13) ("Tr.") more fully sets out plaintiff's medical history.

A. Procedural Background

On November 17, 2014, plaintiff filed an application for DIB, alleging that he became disabled on October 3, 2013 due to moyamoya disease,³ strokes, seizures and a shoulder injury (Tr. 10, 85, 187, 223). After his application for benefits was initially denied on March 13, 2015, he requested, and was granted, a hearing before an administrative law judge ("ALJ") (Tr. 84, 104-06, 114).

3 Moyamoya disease is a rare, progressive blood vessel disorder in which the carotid artery in the skull becomes blocked or narrowed, reducing blood flow to the brain. Tiny blood vessels then open up at the base of the brain in an attempt to compensate and supply the brain with blood. These tiny clusters of blood vessels cannot supply the necessary blood and oxygen to the brain and this can result in temporary or permanent brain injury. Moyamoya disease can also cause strokes or aneurysms in the brain. Moyamoya Disease, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/moyamoya-disease/symptoms-causes/syc-2035586 (last visited May 7, 2019).

On January 19, 2017, plaintiff and his attorney appeared before ALJ David Suna for a hearing via video conference, at which plaintiff, a vocational expert and a medical expert testified (Tr. 42-83). On June 11, 2017, the ALJ issued his decision finding that plaintiff was not disabled (Tr. 10-30). This decision became the final decision of the Commissioner on May 22, 2018 when the Appeals Council denied plaintiff's request for review (Tr. 1-6). Plaintiff timely commenced this action on July 19, 2018 seeking review of the Commissioner's decision (Complaint, dated July 19, 2018 (D.I. 1) ("Compl.")).

B. Social Background

Plaintiff was born on March 8, 1967 and was 47 years old at the time he filed his application for DIB (Tr. 85). Plaintiff is married and lives with his wife and one his three adult children in a fourth floor walk-up apartment in the Bronx (Tr. 63-64, 230). Plaintiff has a tenth grade education and never received his GED (Tr. 65, 71).

Plaintiff worked as a truck driver and a porter for Anheuser Busch from March 1996 until October 3, 2013 -- the alleged onset date of his disability (Tr. 65, 214, 222-23). Plaintiff stated in his "Disability Report," dated December 30, 2014, that this position required him to climb stairs and to lift kegs or cases of beer frequently (Tr. 224). He further stated that this position frequently required him to walk, stand, climb, stoop, handle large objects and lift objects that weighed 50 pounds or more (Tr. 224). Plaintiff testified that he stopped working because of pain in his left shoulder; however, a review of the medical also reveals that plaintiff suffered a transient ischemic attack ("TIA")⁴ on October 2, 2013, which required him to be hospitalized until October 4, 2013 (Tr. 66). Plaintiff also reported to one of his doctors that he had been "let go" from his job on the date of this attack and believed it contributed to the attack (Tr. 448).

4 A TIA is often referred to as a "ministroke" because it produces similar symptoms to a stroke, but only lasts a few minutes. Common symptoms include weakness or paralysis in the face, arm or leg, slurred speech, difficulty understanding others, blindness or double vision, dizziness and severe headache. Symptoms often disappear within an hour of the attack. Transient Ischemic Attack, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/transient-ischemic-attack/symptoms-causes/syc-20355679 (last visited May 7, 2019).

In his "Function Report", dated January 13, 2015, plaintiff stated that his daily activities included reading, watching television and socializing with friends (Tr. 231, 234-35). Plaintiff further stated that he was able to bathe and groom himself, wash dishes, pay his bills, make his bed and fold laundry, but he sometimes had difficultly getting dressed and was unable to drive, cook or go out by himself (Tr. 231-34). Plaintiff further claimed that he was unable to bend, lift objects or sit or stand for prolonged periods of time (Tr. 234). He also stated that he was able to follow and understand directions, but sometimes felt confused, lost or frustrated (Tr. 237).

C. Medical Background

1. Medical Records Pre-Dating the Relevant Time Period

a. Dr. Lee Trosterman

Plaintiff visited Dr. Lee Trosterman, a physiatrist, on July 2, 2013 complaining of left shoulder pain after he injured his shoulder while lifting a case of beer at work (Tr. 310). Plaintiff described his pain as an eight out of ten in severity and described it as burning, sharp, aching and throbbing (Tr. 310).

Dr. Trosterman noted swelling, tenderness and severely restricted rotation in plaintiff's left arm (Tr. 311). Dr. Trosterman diagnosed plaintiff with a torn rotator cuff and joint pain (Tr. 311). Dr. Trosterman recommended that an MRI study be conducted of plaintiff's left shoulder and that he remain on light work duty for three weeks (Tr. 311).

Plaintiff underwent this MRI on July 24, 2013, which revealed mild to moderate shoulder tendinitis⁵ and bursitis⁶ (Tr. 309).

5 Shoulder tendinitis refers to the inflammation of the shoulder tendon, a common cause of shoulder pain and stiffness. Shoulder tendinitis is commonly caused by repetitive use or overuse of the tendons or from a serious, sudden injury. Shoulder Tendinitis, Cleveland Clinic, available at, https://my.clevelandclinic.org/health/diseases/13202-shoulder-tendinitis (last visited May 7, 2019).

6 The subacromial bursa lies in the space between the rotator cuff and the shoulder blade that hangs over the shoulder tendons. Bursities occurs when the bursa becomes inflamed. Shoulder Tendinitis, supra.

Plaintiff visited Dr. Trosterman again on August 2, 2013 and reported left shoulder pain that was radiating into his left arm (Tr. 312). Plaintiff described this pain as a nine out of ten (Tr. 312). Dr. Trosterman noted swelling, tenderness and severely restricted rotation in plaintiff's left arm (Tr. 312). Dr. Trosterman continued to diagnose plaintiff with a torn rotator cuff and joint pain, and recommended pain medications, therapeutic exercises and hot cold packs (Tr. 312).

2. Medical Records for the Relevant Time Period

a. Montefiore Medical Center

Plaintiff suffered a TIA on October 2, 2013 and was admitted to Montefiore Medical Center for two days for tests and treatment (Tr. 591-641). Plaintiff reported that he noticed his right leg was dragging on the floor while he was attempting to walk from his bedroom to his living room (Tr. 613). He was also unable to move his right arm or the right side of his face, and his wife noticed that his speech became slurred (Tr. 613). These symptoms lasted for approximately 15 minutes (Tr. 613).

Plaintiff underwent an MRI study of his brain and a magnetic resonance angiography ("MRA")⁷ study of his head and neck upon his arrival to the Montefiore emergency room (Tr. 627-28). These tests were interpreted by Dr. Jesse Baer, Montefiore's emergency room physician, who opined that plaintiff's head and neck MRAs were normal and that his brain MRI revealed subcortical white matter bilaterally, indicating possible watershed ischemia,⁸ but not an acute stroke (Tr. 627). However, Dr. Daniel Antoniello, a neurologist at Montefiore, reviewed the studies on October 3, 2013 and opined that plain- tiff's head MRA revealed moyamoya disease and his brain MRI revealed that he had experienced an acute stroke (Tr. 620). Dr. Antoniello recommended that plaintiff follow up with him within the next week (Tr. 620).

7 A MRA is a type of MRI that looks specifically at blood vessels. Magnetic Resonance Angiography, Johns Hopkins Medicine, available at, https://www.hopkinsmedicine.org/health/treatment-tests-and-theraoies/magnetic-resonance-angiography-mra (last visited May 7, 2019).

8 Watershed areas of the brain are located at the farthest end branches of two adjacent vascular territories, meaning these areas simultaneously receive blood supply from two separate groups of arteries. A watershed stroke or ischemia may occur if there is a blockage or an interruption of blood flow of one of the blood vessels. Watershed Stroke Symtoms, Causes and Treatment, Verywell Health, available at, https://www.verywellhealth.com/what-is-a-watershed-stroke-3146040 (last visited May 7, 2019).

Plaintiff was discharged on October 4, 2013 and instructed to stop smoking, start a healthy diet regimen and follow up with Dr. Antoniello for further testing (Tr. 594). After his discharge, plaintiff primarily sought treatment at Montefiore from Dr. Antoniello and Dr. David S. Gordon, a neurosurgeon, for his neurological symptoms, and from Dr. Riaz Rahman, an internist, for his primary care needs.

Plaintiff returned to Montefiore for a neurological consultation with Dr. Gordon on October 10, 2013 (Tr. 574). Plaintiff reported no further ischemic symptoms since he was discharged on October 4, 2013 (Tr. 574). Dr. Gordon also noted that plaintiff suffered from high blood pressure, high cholesterol, morbid obesity⁹ and asthma (Tr. 574-75). Plaintiff was alert and oriented during his examination and exhibited intact memory and language (Tr. 576). His physical and neurological examinations were normal, except for some weakness in his left shoulder (Tr. 576). Dr. Gordon diagnosed plaintiff with moyamoya disease and ordered a cerebral angiography¹⁰ (Tr. 577).

9 Morbid obesity occurs when a person is more than 100 pounds over his or her ideal body weight, increasing the chance of serious health problems. Body Mass Index (BMI), Cleveland Clinic, available at, https://my.clevelandclinic.org/health/articles/9464-body-mass-index (last visited May 7, 2019).

10 A cerebral angiography, also known as a cerebral arteriography, is a detailed test that can reveal the location and characteristics of feeding arteries and draining veins in the brain. A catheter is inserted into an artery in the groin and threads to the brain using X-ray imaging. Dye is then injected into the blood vessels of the brain to make them visible under X-ray imaging. Brain AVM, Mayo Clinic, available at, https://www.mayoclinic.org/diseases-conditions/brain-avm/diagnosis-treatment/drc-20350265 (last visited May 7, 2019).

Plaintiff was also examined by Dr. Antoniello on October 10, 2013 (Tr. 468). Plaintiff was alert and oriented during his examination and exhibited intact memory and language (Tr. 469). His physical and neurological examinations were normal (Tr. 469). Dr. Antoniello agreed with Dr. Gordon's moyamoya disease diagnosis (Tr. 469).

Plaintiff underwent his cerebral angiography on October 16, 2013, which confirmed Dr. Gordon's and Dr. Antoniello's diagnosis of bilateral moyamoya disease (Tr. 580).

Plaintiff also visited Dr. Rahman on October 16, 2013 and did not report any pain or symptoms (Tr. 457-58). Plaintiff was alert and oriented during his examination and exhibited full range of motion in his arms and legs (Tr. 458). His mood, affect, attention span and concentration were all normal (Tr. 458). Dr. Rahman noted that plaintiff was a smoker, had high cholesterol, had high blood pressure and had experienced a stroke earlier in the month (Tr. 458-59). Dr. Rahman reviewed plain- tiff's medications and advised him to maintain a healthy diet (Tr. 459).

Plaintiff visited Dr. Rahman again on November 25, 2013 and reported a mild headache (Tr. 450). Dr. Rahman performed a depression screening on plaintiff, and plaintiff reported that in the past two weeks he felt depressed twice, had trouble falling asleep once and had an abnormal appetite three times, but did not experience a lack of interest in things, fatigue, low self esteem, trouble concentrating or suicidal thoughts (Tr. 450-51). Plaintiff further reported that he was not having difficulty taking care of things at home or getting along with others (Tr. 451). Plaintiff was alert and oriented during his examination and exhibited full range of motion in his arms and legs (Tr. 451-52). His mood, affect, attention span and concentration were all normal (Tr. 451-52). Dr. Rahman diagnosed plaintiff with a headache (Tr. 452).

Plaintiff underwent a SPECT brain scan¹¹ on December 6, 2013, which revealed no regional blood flow changes (Tr. 569). Based on these results, Dr. Gordon was reluctant to recommend revascularization surgery,¹² but ordered a new MRI to assess any new ischemic changes (Tr. 443).

11 A SPECT brain scan, or a single-photon emission computerized tomography scan, is a type of nuclear imaging test that uses a radioactive substance and a special camera to create 3-D pictures. A SPECT scan produces images that show how the internal organs work and can show how what areas of the brain are more active or less active. SPECT Scan, Mayo Clinic, available at, https://www.mayoclinic.org/tests-procedures/spect-scan/about/pac-20384925 (last visited May 8, 2019).

12 A revascularization procedure involves surgically connecting a scalp artery, or a superficial temporal artery, directly to the cerebral artery in order to increase blood flow to the brain. Direct Revascularization Procedure for Moyamoya Disease, Mayo Clinic, available at, https://www.mayoclinic.org/diseases-conditions/moyamoya-disease/multimedia/img-20320155 (last visited May 8, 2019).

Plaintiff underwent this MRI on December 18, 2013, which revealed evidence of chronic ischemia and a new infarct, or a small localized area of dead tissue resulting from failure of blood supply, since his October 3, 2013 MRI (Tr. 571). Based on these results, Dr. Gordon opined that plaintiff now had symptomatic moyamoya disease and recommended that plaintiff undergo surgery on the right half of his brain to reduce future ischemic attacks (Tr. 434).

Plaintiff visited Dr. Rahman for a pre-operative visit on January 28, 2014 (Tr. 413). His physical, psychological and neurological examinations were all normal, and Dr. Rahman cleared him for surgery (Tr. 413-17).

Dr. Gordon performed an indirect revascularization craniotomy with encephaloduroarteriosynangiosis ("EDAS")¹³ on the right hemisphere of plaintiff's brain on February 4, 2014 (Tr. 323). Plaintiff underwent a head CT the following day, which revealed a possible capillary hemorrhage (Tr. 331). Plaintiff then underwent a brain MRI on February 6, 2014, which revealed no new infarcts, but showed subcortical white matter in the frontal lobes,, indicating possible ischemia (Tr. 319).

13 In an EDAS, the surgeon dissects a scalp artery over several inches. The surgeon then makes a small temporary opening in the skull directly beneath the artery and attaches the intact scalp artery to the surface of the brain, which allows blood vessels from the artery to grow into the brain over time. The goal of this procedure is to reduce ischemic attacks by increasing blood flow to the brain over time. Moyamoya Disease, Mayo Clinic, available at, https://www.mayoclinic.org/diseases-conditions/moyamoya-disease/diagnosis-treatment/drc-20355591 (last visited May 9, 2019).

Dr. Antoniello examined plaintiff on February 7, 2014 and noted that plaintiff exhibited a symmetric gaze and full strength in his arms and legs, but agreed that the MRI from the day before indicated some bilateral ischemia (Tr. 405). Plaintiff remained at Montefiore for treatment following his surgery until February 11, 2014 (Tr. 542).

Plaintiff visited again Dr. Antoniello on March 7, 2014 (Tr. 405). Plaintiff's wife reported that his behavior around the house and in public was not socially appropriate and that he exhibited periods of confusion and disorientation (Tr. 405). Plaintiff was not experiencing any memory loss, but was having difficulty moving his body without assistance (Tr. 405-06).

Plaintiff visited Dr. Gordon on March 13, 2014 and his wife reported that plaintiff was still exhibiting impulsive and socially inappropriate behavior (Tr. 403). Dr. Gordon noted that plaintiff's post-operative period was complicated by a cerebral ischemic episode which resulted in confusion, but that his symptoms were improving (Tr. 403). Plaintiff was alert and oriented during the examination, but his speech was slightly impaired and he laughed inappropriately at times (Tr. 403). Dr. Gordon referred plaintiff for a neuropsychiatric assessment (Tr. 403).

Plaintiff visited Dr. Antoniello on April 23, 2014 and reported that his impulsive behavior was still an issue, but that his other symptoms were improving (Tr. 399). Dr. Antoniello noted that plaintiff's memory and speech were normal, but that he laughed inappropriately throughout the examination and was fiddling with items in his pocket (Tr. 400).

Plaintiff visited Dr. Antoniello again on June 4, 2014 and reported that he continued to experience impulsive behavior and poor judgment, but that his other symptoms continued to improve (Tr. 396). Plaintiff was alert and attentive during his examination and his speech and memory were normal (Tr. 397).

Plaintiff next saw Dr. Gordon on June 12, 2014 and reported anxiety, insomnia, shortness of breath, joint pain and back pain (Tr. 392-93). Plaintiff's wife reported that plaintiff was still impulsive and impatient, but that his behavior continued to improve (Tr. 391). Plaintiff's neurological examination was normal, but Dr. Gordon noted that he laughed inappropriately throughout the examination (Tr. 393). Dr. Gordon discussed the option of an EDAS procedure on the left hemisphere of his brain at some point in the future (Tr. 393).

Dr. Gordon performed an EDAS procedure on the left hemisphere of plaintiff's brain on October 10, 2014 (Tr. 325). Plaintiff underwent a head CT the following day, which revealed no masses or hemorrhages (Tr. 330). Plaintiff remained in Montefiore for observation until October 13, 2014 (Tr. 342).

Plaintiff visited Dr. Gordon on November 6, 2014 for a post-operative appointment (Tr. 366). Dr. Gordon noted that plaintiff was alert and oriented during his examination, he was able to walk without assistance, his speech was fluent, his cranial incision was healing well and he exhibited normal sensations, reflexes and muscle strength (Tr. 366). Dr. Gordon instructed plaintiff to follow up with him in three months (Tr. 366).

On November 22, 2014, plaintiff suffered a seizure and was hospitalized at Lincoln Hospital (Tr. 343). He followed up with Dr. Gordon on November 24, 2014 after he was discharged (Tr. 345). Dr. Gordon noted that plaintiff's symptoms had resolved, and his brain CT showed no new areas of infarct or hemorrhage (Tr. 345). Dr. Gordon recommended that plaintiff take depakote¹⁴ to reduce his chances of any future seizures (Tr. 347).

14 Depakote, or valproic acid, is an anticonvulsant oral medication that works within the brain tissue to stop seizures. Valproic Acid, Mayo Clinic, available at, https://www.mayoclinic.org/drugs-supplements/valproic-acid-oral-route/description/drg-20072931 (last visited May 9, 2019)

Plaintiff visited Dr. Antoniello on December 9, 2014 and discussed his November 22 seizure (Tr. 359). Dr. Antoniello opined that this seizure may have been caused by sleep deprivation due to plaintiff's sleep apnea (Tr. 359). Plaintiff's neurological examination was normal (Tr. 361). Dr. Antoniello diagnosed plaintiff with generalized convulsive epilepsy,¹⁵ impairment of the frontal lobes, moyamoya disease and morbid obesity (Tr. 361-62).

15 Epilepsy is a central nervous system disorder in which brain activity becomes abnormal, causing seizures or periods of unusual behavior, sensations and occasional loss of awareness. Seizure symptoms can vary widely; some individuals with epilepsy simply stare blankly for a few seconds during a seizure, while others repeatedly twitch their arms or legs. Epilepsy is commonly treated and controlled with medication. Epilepsy, Mayo Clinic, available at, https://www.mayoclinic.org/diseases-conditions/epilepsy/symptoms-causes/syc-20359993 (last visited May 9, 2019).

In a letter dated December 31, 2014, Dr. Gordon described his treatment of plaintiff and opined that plaintiff was "completely disabled" as a result of his moyamoya disease and strokes (Tr. 352).

Plaintiff visited Dr. Antoniello on April 14, 2015 (Tr. 495). Plaintiff reported that he had not experienced any seizures, but shook once in his sleep which caused him to wake up (Tr. 495). Dr. Antiello continued to diagnose plaintiff with moyamoya disease, general compulsive epilepsy and impairment of the frontal lobes (Tr. 497).

Plaintiff visited Dr. Gordon on April 30, 2015 after experiencing a seizure on April 28, 2015 (Tr. 488). Dr. Gordon ordered a brain MRI (Tr. 489). Plaintiff underwent this MRI on May 20, 2015, which revealed chronic infarcts in the right frontal lobe and a chronic watershed infarct (Tr. 517-18). No acute hemorrhages were noted (Tr. 517-18).

In a letter dated April 18, 2017, Dr. Antoniello stated that plaintiff's moyamoya disease and strokes caused him behavioral and cognitive impairments such as memory loss, impulsiveness, impaired judgment and impaired concentration, and that because these symptoms have not improved with time, plaintiff had a "permanent disability" (Tr. 1021).

b. Physicians Medical Rehabilitation Associates

Plaintiff visited Dr. John Vlattas, a physiatrist, at Physicians Medical Rehabilitation Associates ("PMRA") on October 22, 2013 (Tr. 642). Plaintiff reported left shoulder pain and weakness and left-sided neck pain (Tr. 642). Dr. Vlattas noted some weakness and tenderness in plaintiff's left shoulder (Tr. 643). Plaintiff's Hawkins impingement sign¹⁶ and Neer's impingement sign¹⁷ were positive, but his apprehension test¹⁸ was negative (Tr. 643). Dr. Vlattas diagnosed plaintiff with left shoulder bursitis, a possible partial rotator cuff tear and joint strain (Tr. 643). Dr. Vlattas recommended Tylenol as needed and physical therapy, and referred plaintiff to an orthopedic surgeon (Tr. 643). Dr. Vlattas opined that plaintiff was temporarily, totally disabled (Tr. 643).¹⁹

16 The Hawkin's impingement test is commonly used to test rotator cuff shoulder impingement. The examiner places the patient's arm shoulder in 90 degrees of shoulder flexion with the elbow flexed to 90 degrees and then internally rotates the arm. The test is considered to be positive if the patient experiences pain with internal rotation. Hawkins/Kennedy Impingement Test of the Shoulder, Physiopedia, available at, https://www.physio-pedia.com/Hawkins_/_Kennedy_Impingement_Test_of_the_Shoulder (last visited May 11, 2019).

17 The Neer's impingement test is also commonly used to test rotator cuff shoulder impingement. The examiner stabilizes the patient's scapula with one hand, while internally rotating and passively flexing the arm. If the patient reports pain in this position, then the test is considered to be positive. Neers Test, Physiopedia, available at, https://www.physio-pedia.com/Neers_Test (last visited May 11, 2019).

18 The apprehension test is commonly used to test shoulder instability in the anterior direction. The examiner flexes the patient's elbow to 90 degrees and abducts the patient's shoulder to 90 degrees, maintaining neutral rotation. The examiner then slowly applies an external rotation force to the arm to 90 degrees while carefully monitoring the patient. Patient apprehension from this maneuver, not pain, is considered a positive test. Pain with the maneuver, but not apprehension may indicate a pathology other than instability, such as posterior impingement of the rotator cuff. Apprehension Test, Physiopedia, available at, https://www.physio-pedia.com/Apprehension_Test (last visited May 10, 2019).

19 Plaintiff also attended physical therapy sessions at PMRA on October 23, October 25, October 28, October 30, November 4, November 6, November 8, November 11, November 13, November 15, November 18, November 22, November 26, November 27, December 2, December 4, December 9, December 11, December 16, December 18, December 20, December 23, December 27 and December 30, 2013, and on January 2, January 6, January 8, January 10, January 13, January 20, January 23, January 27, January 29, January 31, February 3, May 28, May 30, June 2, June 4, June 6, June 9, June 11, June 13, June 16, June 18, June 20, June 23, June 25, June 27, June 30, July 2, July 7, July 9, July 14, July 16, July 18, July 21, July 28, July 30, August 18, August 21, August 25, August 27, September 2, September 3, September 8, September 10, September 16 and September 19, 2014; however, the treatment notes from these sessions are largely illegible (Tr. 644-57, 661-72, 674-81, 685-707, 709-20).

Plaintiff visited Dr. Vlattas again on December 3, 2013 and reported ongoing left shoulder pain and difficulty lifting, pushing and pulling (Tr. 658). Plaintiff exhibited limited range of motion and weakness in his left shoulder (Tr. 658). Dr. Vlattas continued to diagnose plaintiff with left shoulder bursitis, a possible partial rotator cuff tear and joint strain, and recommended continued physical therapy (Tr. 658). Dr. Vlattas opined that plaintiff was unable to perform his prior work as a driver and porter, but that he was capable of performing "light duty work" (Tr. 659).

Plaintiff next visited Dr. Vlattas on January 15, 2014 and reported ongoing left shoulder pain and weakness, but that physical therapy was temporarily helpful (Tr. 673). Plaintiff exhibited limited range of motion and weakness in his left shoulder (Tr. 673). Dr. Vlattas continued to diagnose plaintiff with left shoulder bursitis, a possible partial rotator cuff tear and joint strain (Tr. 673). Dr. Vlattas discussed surgical options with plaintiff, but did not recommend surgery due to plaintiff's ongoing neurological issues (Tr. 673). Dr. Vlattas recommended continued physical therapy and opined that plaintiff was totally disabled from his prior work as a driver and porter (Tr. 673).

Plaintiff visited Dr. Vlattas again on February 28, 2014 and reported that his condition remained unchanged (Tr. 682). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and his Neer and Hawkins impingement signs were positive (Tr. 682). Dr. Vlattas recommended that plaintiff stop physical therapy until he fully recovered from his brain surgery and opined that plaintiff remained totally disabled from his prior work as a driver and porter (Tr. 682).

Plaintiff saw Dr. Vlattas again on April 8, 2014 and reported that his left shoulder pain and weakness was slightly worse since his last visit (Tr. 683). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and his Neer and Hawkins impingement signs were again positive (Tr. 683). Because he was cleared by Dr. Antoniello for physical therapy, Dr. Vlattas recommended that plaintiff continue physical therapy and that he consult with an orthopedic surgeon (Tr. 683).

Plaintiff visited Dr. Vlattas again on May 20, 2014 and reported left shoulder pain and difficulty putting his hand behind his head, reaching behind his back and raising his left arm (Tr. 684). Plaintiff further reported that he had not returned to physical therapy and had not yet consulted with an orthopedic surgeon (Tr. 684). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and Dr. Vlattas continued to recommend physical therapy and consultation with an orthopedic surgeon (Tr. 684).

Plaintiff next saw Dr. Vlattas on July 22, 2014 and reported ongoing left arm pain that increased with activity (Tr. 708). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and his Neer and Hawkins impingement signs were still positive (Tr. 708). Dr. Vlattas continued to recommend physical therapy and opined that plaintiff was totally disabled from his prior work as a driver and porter (Tr. 708).

Plaintiff visited Dr. Vlattas again on September 23, 2014 and reported ongoing left shoulder pain (Tr. 721). Plaintiff exhibited some weakness in his left shoulder (Tr. 721). Dr. Vlattas instructed plaintiff to stop physical therapy until his upcoming brain surgery was completed (Tr. 721).

Plaintiff saw Dr. Vlattas again on November 12, 2014 and reported ongoing left shoulder pain with accompanying stiffness and weakness (Tr. 722). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and his Neer and Hawkins impingement signs were again positive (Tr. 722). Dr. Vlattas recommended shoulder surgery once plaintiff was cleared by Dr. Antoniello (Tr. 722).

Plaintiff did not visit Dr. Vlattas again until May 13, 2015 and reported bilateral shoulder pain (Tr. 724). Plaintiff exhibited a decreased range of motion and weakness in his left shoulder, and his Neer and Hawkins impingement signs were positive (Tr. 724). Plaintiff also exhibited weakness and positive impingement signs in his right shoulder (Tr. 724). Dr. Vlattas diagnosed plaintiff with left shoulder derangement²⁰ and a right shoulder strain due to plaintiff favoring his left shoulder (Tr. 724). Dr. Vlattas recommended shoulder surgery and opined that plaintiff was totally disabled from his prior work as a driver and porter (Tr. 724).

20 Shoulder derangement is defined as an anatomical disturbance in the normal resting position of the shoulder joint. Rapid Resolution of Chronic Shoulder Pain Classified as Derangement, National Center for Biotechnology Information, available at, https://www.ncbi.nlm.nih.gov/pm/articles/PMC3822320 (last visited May 10, 2019).

Plaintiff visited Dr. Vlattas again on July 8, 2015 and reported ongoing bilateral shoulder pain and difficulty sleeping (Tr. 725). Plaintiff exhibited a decreased range of motion and weakness in both shoulders (Tr. 725). Dr. Vlattas recommended shoulder surgery and again opined that plaintiff was totally disabled from his prior work as a driver and porter (Tr. 725).

Plaintiff visited Dr. Vlattas again on July 24, 2015 after Dr. David T. Newman performed left shoulder rotator cuff repair surgery on July 15, 2015 (Tr. 736). Plaintiff reported pain in both shoulders and exhibited decreased range of motion bilaterally (Tr. 736). Dr. Vlattas recommended that plaintiff begin post-operative physical therapy, which he did on July 27, 2015 (Tr. 736-37).²¹

21 Plaintiff regularly attended physical therapy at PMRA through September 2015; however, the treatment notes from these sessions are largely illegible (Tr. 738-57).

Plaintiff next saw Dr. Vlattas again on September 16, 2015 and reported ongoing pain and weakness in his left shoulder, but that his symptoms were improving (Tr. 758). Plaintiff exhibited some decreased range of motion and positive impingement signs in both shoulders (Tr. 758). Dr. Vlattas noted some improvement with physical therapy and opined that plaintiff remained totally disabled (Tr. 758).

Plaintiff visited Dr. Vlattas again on November 13, 2015 and reported that the pain in his left shoulder had increased and that he had difficulty sleeping, pushing, pulling, bathing and dressing (Tr. 765). Plaintiff exhibited decreased range of motion and slight muscle weakness in both shoulders (Tr. 765). Dr. Vlattas recommended continued physical therapy and opined that plaintiff was totally disabled (Tr. 765).

Plaintiff visited Dr. Vlattas again on February 3, 2016 and reported that his ability to reach, push and pull with his left arm had improved, but that he was still experiencing some soreness in his shoulder (Tr. 763). Plaintiff exhibited mildly restricted range of motion and slightly deceased muscle strength in both shoulders (Tr. 763). Dr. Vlattas recommended continued physical therapy and continued to opine that plaintiff was totally disabled with respect to his prior work as a driver and porter (Tr. 763).

Plaintiff next visited Dr. Vlattas on March 16, 2016 and reported left shoulder pain, limited motion and weakness (Tr. 806). Plaintiff exhibited mildly restricted range of motion and slightly deceased muscle strength in both shoulders (Tr. 806). Dr. Vlattas discussed cortisone injections with plaintiff and recommended that plaintiff follow-up with an orthopedic surgeon (Tr. 806). Dr. Vlattas opined that plaintiff was "moderately impaired" and that plaintiff had not yet reached maximal medical improvement (Tr. 806). Plaintiff returned to Dr. Vlattas to receive a cortisone injection on April 20, 2016 (Tr. 805).

Plaintiff visited Dr. Vlattas again on June 22, 2016 and reported that his left shoulder pain had increased (Tr. 815). Dr. Vlatttas interpreted a new MRI of plaintiff's left shoulder and opined that there was a new tear in plaintiff's rotator cuff (Tr. 815).²² Dr. Vlattas opined that plaintiff was "moderately impaired" (Tr. 815).

22 This MRI report does not appear to be in the record.

Plaintiff visited Dr. Vlattas again on September 7, 2016 and reported that his left shoulder pain had increased and that he was having difficulty reaching, pulling, pushing, bathing and dressing (Tr. 868). Plaintiff exhibited a decreased range of motion in his left shoulder and had positive impingement signs (Tr. 868). Dr. Vlattas diagnosed plaintiff with a left shoulder rotator cuff repair with a re-tear that was pending revision surgery and a right shoulder sprain (Tr. 868). Dr. Vlattas continued to opine that plaintiff was "moderately impaired" (Tr. 868).

Plaintiff next visited Dr. Vlattas on December 7, 2016 after undergoing a second surgical rotator cuff repair on November 21, 2016 (Tr. 976). Plaintiff exhibited significant decreased range of motion in his left shoulder and Dr. Vlattas recommended that plaintiff wait a few more weeks before starting physical therapy (Tr. 976). Dr. Vlattas opined that plaintiff was "totally disabled" (Tr. 976).

Plaintiff visited Dr. Vlattas again on March 1, 2017 and reported left shoulder pain, stiffness and weakness and worsening pain in the right shoulder (Tr. 1073). Plaintiff exhibited some decreased range of motion in both shoulders, and Dr. Vlattas recommended continued physical therapy and cortisone injections for the right shoulder (Tr. 1073). Dr. Vlattas opined that plaintiff was totally disabled with respect to his prior work as a driver and porter (Tr. 1073).

Plaintiff visited Dr. Vlattas again on April 19, 2017 and reported that his pain, stiffness and weakness had increased in both shoulders (Tr. 1062). Plaintiff exhibited some decreased range of motion in both shoulders and positive impingement signs (Tr. 1062). Dr. Vlattas recommended continued physical therapy and opined that plaintiff was temporarily totally disabled with respect to his prior work as a driver and porter (Tr. 1062).

c. University Orthopedics of New York

Plaintiff visited Dr. Steven Toulipoulos, an orthopedic surgeon, at University Orthopedics of New York ("UOONY") on October 23, 2013 complaining of left shoulder pain (Tr. 316). Plaintiff reported difficulty with raising his left arm above shoulder level and lifting objects with his left arm (Tr. 316). Plaintiff exhibited a restricted range of motion in his left shoulder and significantly diminished left rotator cuff strength (Tr. 316). His Hawkins and Neer's impingement signs and apprehension test were all positive (Tr. 316). Dr. Toulipoulos diagnosed plaintiff with left shoulder posttraumatic impingement syndrome²³ and a possible rotator cuff tendon tear, and recommended physical therapy (Tr. 316).

23 Impingement syndrome of the shoulder is an injury to the muscles between bones in the shoulder area. This condition is closely related to shoulder bursitis and rotator cuff tendinitis. Most patients with this syndrome are successfully treated with medication, stretching exercises and avoidance of repetitive overhead activity until the condition improves. Impingement Syndrome of the Shoulder, Cleveland Clinic, available at, https://my.clevelandclinic.org/health/diseases/7079-impingement-syndrome-of-the-shoulder (last visited May 10, 2019).

Plaintiff visited Dr. Charles Demarco, an orthopedic surgeon, at UOONY on August 29, 2014 and reported pain and decreased range of motion in his left shoulder (Tr. 332). Plaintiff exhibited weakness with abduction of his left arm and his Hawkins and Neer's impingement signs and apprehension test were, again, all positive (Tr. 332). Dr. Demarco diagnosed plaintiff with left shoulder posttraumatic impingement and recommended continued physical therapy (Tr. 332). Dr. Demarco opined that plaintiff was totally disabled from his previous position as a truck driver and porter (Tr. 332).

Plaintiff visited Dr. Demarco again on November 19, 2014 and reported continued pain and decreased range of motion in his left shoulder (Tr. 333). Plaintiff exhibited decreased external rotation in his left shoulder when compared with his right shoulder and his apprehension test was positive (Tr. 333). Dr. Demarco diagnosed plaintiff with left shoulder posttraumatic impingement and recommended continued physical therapy and pain medication (Tr. 333).

d. Dr. Isaac Cohen

Plaintiff visited Dr. Isaac Cohen, an orthopedic surgeon, for an independent orthopedic evaluation on December 17, 2013 (Tr. 797). While Dr. Cohen noted tenderness over plaintiff's AC joint, plaintiff's range of motion is his left shoulder was only slightly decreased and he exhibited full muscle strength and normal reflexes and sensations (Tr. 799). Plaintiff's supraspinatus,²⁴ apprehension and Yergason's²⁵ tests were negative with no signs of impingement (Tr. 799). Dr. Cohen diagnosed plaintiff with a status post left shoulder strain (Tr. 799). Dr. Cohen opined that plaintiff had a "mild partial disability" in his left shoulder and that he was capable of performing "light" work with lifting, carrying, pushing and pulling limited to loads of 30 pounds or less (Tr. 799).

24 The supraspinatus is the smallest of the four muscles of the rotator cuff in the shoulder. To test for impingement of the supraspinatus, one of the examiner's hands stabilizes the shoulder girdle and the arm to be tested is moved into 90 degrees of abduction in the plane of the scapula (approximately 30 degrees of forward flexion) with full internal rotation with the thumb pointing down. The examiner's other hand applies downward pressure on the superior aspect of the distal forearm and the patient resists. The test is considered positive if there is significant pain and/or weakness. Supraspinatus, Physiopedia, available at, https://www.physio-pedia.com/Supraspinatus#Test_for_Supraspinatus (last visited May 10, 2019).

25 The Yergason's test is commonly used to test for tendinitis in the biceps. The patient should be seated or standing, with the humerus in neutral position and the elbow in 90 degrees of flexion. The patient is asked to externally rotate and supinate their arm against the manual resistance of the examiner. The test is considered positive if pain is reproduced in the bicipital groove during the test. Yergasons Test, Physiopedia, available at, https://www.physio-pedia.com/Yergasons_Test (last visited May 10, 2019).

e. Dr. David T. Neuman

Plaintiff visited Dr. David T. Neuman, an orthopedic surgeon, on December 19, 2013 and reported ongoing left shoulder pain (Tr. 726). Plaintiff further reported that the pain increased with carrying, grabbing, lifting, overhead activities and reaching, and that physical therapy was only providing him temporary relief (Tr. 726). Dr. Neuman noted that plaintiff had diminished muscle girth and tone in his left shoulder compared to his right shoulder (Tr. 726). Plaintiff exhibited decreased range of motion in his left shoulder compared to his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left side (Tr. 726-27). Plaintiff exhibited almost full muscle strength in his left shoulder and full muscle strength in his right shoulder (Tr. 727). Dr. Neuman diagnosed plaintiff with internal derangement, joint strain and shoulder burisitis and tendinitis, and discussed both physical therapy and surgical options with plaintiff (Tr. 727). Dr. Neuman opined that plaintiff had a marked partial disability with respect to his previous work as a driver and porter (Tr. 727).

Plaintiff did not visit Dr. Neuman again until October 16, 2014 and reported that his condition remained unchanged (Tr. 729). Plaintiff exhibited decreased range of motion in his left shoulder when compared with his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left (Tr. 729). Plaintiff exhibited almost full muscle strength in his left shoulder and full muscle strength in his right shoulder (Tr. 729). Dr. Neuman diagnosed plaintiff with internal derangement, joint strain, shoulder burisitis and tendinitis, biceps tendinitis and posttraumatic synovitis,²⁶ and recommended surgery once plaintiff was cleared by Dr. Gordon (Tr. 730). Dr. Neuman opined that plaintiff had a temporary, total disability with respect to his previous work as a driver and porter (Tr. 730).

26 Synovitis is a condition that occurs when there is inflammation of the synovial tissue, the lining of a joint. This condition can cause joint pain and swelling and is seen with a variety of inflammatory conditions. Joint Pain, Very Well Health, available at, https://www.verywellhealth.com/definition-of-synovitis-2548497 (last visited May 10, 2019).

Dr. Neuman performed an arthroscopic left shoulder rotator cuff repair on plaintiff on July 15, 2015 (Tr. 732). During the procedure, Dr. Neuman noted that plaintiff's left shoulder had bursitis with synovitis and adhesions, a superior labral tear, an AC joint sprain with posttraumatic arthritis, a partial biceps tendon tear and a complete tear of the supraspinatus tendon in the rotator cuff (Tr. 732). Dr. Neuman recommended ice and oral pain medication for plaintiff's pain and that should plaintiff utilize a sling for the next six weeks (Tr. 735).

Plaintiff followed up with Dr. Neuman on April 21, 2016 and reported continued pain and stiffness in his left shoulder that was exacerbated by carrying, lifting and reaching (Tr. 811). Plaintiff further reported right shoulder pain and stiffness, but that home exercises had improved his right shoulder function (Tr. 811). Plaintiff was no longer attending physical therapy and stated that he was having difficulty sleeping and dressing himself (Tr. 811). Plaintiff exhibited decreased range of motion in his left shoulder when compared with his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left (Tr. 812). Plaintiff exhibited full muscle strength in both shoulders and normal sensations and reflexes (Tr. 812). Dr. Neuman diagnosed plaintiff with impingement and bursitis in his right shoulder, and post-operative deconditioning and pain in his left shoulder (Tr. 812). Dr. Neuman recommended pain medication, physical therapy, home exercises and icing, and opined that plaintiff had a "marked partial disability" with respect to his previous employment as a driver and porter (Tr. 812-13).

Plaintiff visited Dr. Neuman again on June 2, 2016 and reported that his condition remained unchanged (Tr. 808). Plaintiff exhibited decreased range of motion in his left shoulder when compared with his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left (Tr. 809). Plaintiff exhibited full muscle strength in both shoulders and normal sensations and reflexes (Tr. 809). Dr. Neuman diagnosed plaintiff with impingement and bursitis in his right shoulder, and post-operative deconditioning and pain in his left shoulder (Tr. 812). Dr. Neuman recommended pain medication, physical therapy, home exercises and icing, and opined that plaintiff had a "temporary total disability" with respect to his previous employment as a driver and porter (Tr. 809-10).

Plaintiff next visited Dr. Neuman on July 21, 2016 and reported that his condition remained unchanged (Tr. 871). Plaintiff exhibited decreased range of motion in his left shoulder when compared with his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left (Tr. 872). Plaintiff exhibited full muscle strength in both shoulders and normal sensations and reflexes (Tr. 872). Dr. Neuman continued to diagnose plaintiff with impingement and bursitis in his right shoulder, and post-operative deconditioning and pain in his left shoulder (Tr. 872). Dr. Neuman recommended plaintiff undergo a second surgery in his left shoulder, and opined that plaintiff had a "temporary total disability" with respect to his previous employment as a driver and porter (Tr. 872-73).

Plaintiff visited Dr. Neuman again on October 20, 2016 and reported that his condition remained unchanged (Tr. 896). Plaintiff exhibited decreased range of motion in his left shoulder when compared with his right shoulder, and his Hawkins and Neer's impingement signs were positive on the left (Tr. 897). Plaintiff exhibited full muscle strength in both shoulders and normal sensations and reflexes (Tr. 897). Dr. Neuman diagnosed plaintiff with pain and stiffness in his right shoulder and postoperative deconditioning, pain, scar tissue formation, rotator cuff tear, impingement and bursitis in his left shoulder (Tr. 897). Dr. Neuman recommended plaintiff undergo a second surgery in his left shoulder, and opined that plaintiff had a "temporary total disability" with respect to his previous employment as a driver and porter (Tr. 897-98).

Plaintiff underwent this second arthoscopic surgery procedure on November 21, 2016 (Tr. 890-93). During the procedure, Dr. Neuman noted that plaintiff had a small tear in his biceps tendon that was an extension of his previous tear and some posttraumatic adhesions (Tr. 891).

f. Dr. Alvin M. Bregman

Plaintiff visited Dr. Alvin M. Bregman, an orthopedic surgeon, for an independent medical examination on April 24, 2014 and reported ongoing pain in his left shoulder (Tr. 788-89). Plaintiff exhibited normal range of motion in his cervical and thoracic spine, but decreased range of motion in his left shoulder (Tr. 790). He exhibited full muscle strength in his biceps, triceps and wrists and normal reflexes and sensations (Tr. 790). Dr. Bregman diagnosed plaintiff with a resolved sprain of the upper back and internal derangement of the left shoulder (Tr. 791). Dr. Bregman opined that plaintiff had a "moderate disability" and could return to work with lifting, pushing and pulling limited to loads of 15 pounds or less (Tr. 791).

Plaintiff visited Dr. Bregman for a second independent medical examination on September 22, 2014 and reported ongoing pain in his left shoulder (Tr. 784-85). Plaintiff exhibited normal range of motion in his cervical and thoracic spine, and improved range of motion in his left shoulder since his last visit (Tr. 786). Plaintiff's drop arm and apprehension tests were negative and his impingement signs were negative (Tr. 786). He exhibited full muscle strength in his biceps, triceps and wrists and normal reflexes and sensations (Tr. 786). Dr. Bregman diagnosed plaintiff with a resolved sprain of the upper back and a resolved sprain of the left shoulder (Tr. 786). Dr. Bregman opined that plaintiff did not have a disability and that he did not require any further treatment or surgery (Tr. 787).

Plaintiff visited Dr. Bregman for a third independent medical examination on October 29, 2015 and reported ongoing pain and decreased range of motion in his left shoulder (Tr. 780-81). Plaintiff exhibited normal range of motion in his cervical and thoracic spine, but decreased range of motion in his left shoulder (Tr. 782). Plaintiff's drop arm test was positive and his apprehension test and impingement signs were negative (Tr. 78283). He exhibited full muscle strength in his biceps, triceps and wrists, and normal reflexes and sensations (Tr. 782). Dr. Bregman diagnosed plaintiff with a resolved upper back sprain and status post-arthroscopy of the left shoulder (Tr. 783). Dr. Bregman opined that plaintiff had a 25% disability and could return to work with lifting, pushing and pulling limited to loads of 25 pounds or less (Tr. 783).

g. Lincoln Hospital

Plaintiff was admitted to Lincoln Hospital on November 22, 2014 after he suffered a seizure in his sleep (Tr. 343). Plaintiff exhibited a right facial drop and weakness on his left side that completely resolved by the time he was discharged on November 23, 2014 (Tr. 343).

h. Dr. Arlene Broska

Plaintiff visited Dr. Arlene Broska, a psychologist, for a consultative psychiatric evaluation on February 12, 2015 (Tr. 478). Plaintiff reported insomnia, increased appetite, some short term memory loss, anxiety, restlessness and increased aggression during this visit, but denied homicidal or suicidal thoughts (Tr. 478-79). Plaintiff further reported that he was able to dress, bathe and groom himself, make breakfast and manage his money, but did not go out by himself because of his concern about his short-term memory loss (Tr. 480).

Plaintiff was alert, oriented and cooperative during the examination (Tr. 479). Plaintiff maintained appropriate eye contact, and exhibited fluent speech, a coherent thought process, intact concentration, good insight and normal memory (Tr. 479-80). Dr. Broska opined that plaintiff had no limitations in his ability to follow and understand simple instructions, perform simple or complex tasks independently, relate adequately with others, make appropriate decisions or deal with stress (Tr. 480). While Dr. Broska acknowledged plaintiff's claim that he was experiencing short-term memory loss, she noted that plaintiff exhibited no evidence of concentration or memory loss during his examination (Tr. 480). Dr. Broska did not diagnose plaintiff with any conditions, nor did she recommend any treatment (Tr. 481).

i. Dr. Lisa Turtz

Dr. Lisa Turtz, a psychiatrist, diagnosed plaintiff with dysthymic disorder²⁷ and major depressive disorder on July 18, 2016; however, no treatment or examination notes exist from this visit or from any visit with Dr. Turtz (Tr. 887).

27 Dysthymic disorder, or persistent depressive disorder, is a continuous, long-term form of depression. Persistent Depressive Disorder (Dysthymia), Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/persistent-depressive-disorder/symptoms-causes/syc-20350929 (last visited May 13, 2019).

j. Dr. Allen Meisel

Plaintiff visited Dr. Allen Meisel for an independent orthopedic evaluation on December 16, 2016 (Tr. 876). Plaintiff was unable to give a history during this evaluation because he claimed to have memory loss, was laughing throughout most of the appointment and was having difficulty speaking (Tr. 876). Plaintiff's wife reported that plaintiff needed assistance with bathing, dressing, cooking, cleaning and shopping (Tr. 877).

Dr. Meisel noted that plaintiff was exhibiting expressive aphasia,²⁸ but was able to understand and follow directions (Tr. 877). Plaintiff was able to walk and rise from the examination table without assistance (Tr. 877). Plaintiff exhibited full range of motion in his right shoulder, spine, elbows, forearms, wrists and fingers, but was unable to move his left shoulder at all (Tr. 877-78).

28 Expressive aphasia is the inability to speak, which can occur suddenly after a stroke or head injury. Aphasia, Mayo Clinic, available at https://www.mayoclinic.org/diseases-conditions/aphasia/symptoms-causes/syc-20369518 (last visited May 13, 2019).

Dr. Meisel diagnosed plaintiff with moyamoya disease, post-ischemic stroke, left shoulder pain post arthroscopic surgery, seizure disorder, asthma and hypertension (Tr. 878). Dr. Meisel opined that plaintiff had "marked limitations" with lifting, carrying and reaching overhead with his left arm and recommended plaintiff avoid exposure to dust and smoke because of his asthma (Tr. 878). Dr. Meisel also filled out a functional capacity evaluation for plaintiff in which he opined that plaintiff could not lift any objects with his left arm, but could occasionally lift objects up to 20 pounds with his right arm (Tr. 879). He further opined that plaintiff could frequently handle and finger objects, push and pull with both hands, but that he could never reach overhead with his left hand (Tr. 881).

D. Proceedings Before the ALJ

1. Plaintiff's Testimony

Plaintiff testified he was still experiencing pain in his left shoulder and that he took Tylenol twice a day for it (Tr. 70-71). He further testified that he believed that taking Tylenol was contributing to his weight gain and fatigue (Tr. 70-71). Plaintiff testified that he was not able to perform any functions with his left arm or hand and that it took him approximately 15 to 20 minutes to climb the four flights of stairs in his home (Tr. 66-68).

Plaintiff claimed that he watches television and takes naps all day (Tr. 71). He also stated that his wife and adult daughter handle all his household chores, such as cooking, cleaning, laundry and grocery shopping (Tr. 68). Plaintiff testified that he had been unable to drive for two years (Tr. 64).

Neither the ALJ, nor plaintiff's attorney asked him any questions with respect to his moyamoya disease or related neurological symptoms.

2. Vocational Expert's Testimony

Vocational expert Linda Boardman ("the VE") also testified at the hearing. The VE testified that plaintiff's past work, described in the United States Department of Labor's Dictionary of Occupational Titles ("DOT") as a delivery truck driver, DOT Code 292.353-010, was considered medium, semi-skilled work (Tr. 75). The ALJ asked the VE to consider possible jobs for a hypothetical person of plaintiff's age, education and work background, who was limited to a range of light work²⁹ that involved never reaching, pushing or pulling with the left arm, climbing ladders, ropes or scaffolds, working at protective heights, operating a motor vehicle and only occasional handling objects with the left hand, crouching, balancing, kneeling or crawling (Tr. 76-77). The VE testified that such a hypothetical individual could not perform plaintiff's past work as a delivery truck driver (Tr. 76-77). The VE testified that such an individual could, however, work in jobs such as a host, DOT Code 349.667-014, with 3,200 jobs nationally, an usher, DOT Code 344.677-014, with 23,000 jobs nationally and a counter clerk, DOT Code 249.366-010, with 17,000 jobs nationally (Tr. 77). The VE further testified that if such a hypothetic individual were limited to sedentary work with the above discussed limitations, no jobs would exist because bilateral manipulation would be required for any such position (Tr. 79).

29 The regulations define "light work" as work which

involves 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 good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.

20 C.F.R. § 404.1567(b).

3. Medical Expert's Testimony

Medical expert Dr. Steven Goldstein also testified at the hearing. Dr. Goldstein reviewed plaintiff's medical records for the relevant period and made special mention of plaintiff's expressive aphasia from his examination with Dr. Meisel on December 16, 2016 -- only a month prior to the hearing (Tr. 52). Dr. Goldstein opined that if plaintiff had experienced this expressive aphasia for a continuous period of 12 months, he met the paragraph A criteria for Listing 11.04, but went on to state that this did not appear to be the case because there was no other indication of aphasia in 2014 or 2015 and plaintiff was able to speak at the hearing (Tr. 52-53). Dr. Goldstein testified that if the expressive aphasia was not present for a continuous 12 months, plaintiff did not meet the paragraph A criteria for Listing 11.04 (Tr. 52-53).

Dr. Goldstein also discussed plaintiff's other impairments -- namely, his torn rotator cuff and morbid obesity (Tr. 53). When the ALJ asked about what functional limitations plaintiff had with respect to these impairments, Dr. Goldstein opined that plaintiff was not able to lift or carry anything with his left arm, but that he had no limitations with his right arm and could perform at the "light level of activity" (Tr. 55-57). Dr. Goldstein further opined that plaintiff most likely could grip and manipulate objects with his left hand so long it occurred at chest length or lower with no overhead reaching (Tr. 56-57).

Dr. Goldstein testified that although the record indicated that plaintiff had suffered prior seizures, he did not believe plaintiff had a seizure disorder; rather, the seizures were accompanying symptoms of his moyamoya disease (Tr. 54).

III. Analysis

A. Applicable Legal Principles

1. Standard of Review

The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87, 91 (2d Cir. 2019); Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2014) (per curiam); Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008). Moreover, the court cannot "affirm an administrative action on grounds different from those considered by the agency." Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015), quoting Burgess v. Astrue, supra, 537 F.3d at 128.

The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence. Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003), citing Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). "Even if the Commissioner's decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ's decision." Ellington v. Astrue, 641 F. Supp. 2d 322, 328 (S.D.N.Y. 2009) (Marrero, D.J.). However, "where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration." Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

"'Substantial evidence' is 'more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera v. Astrue, supra, 697 F.3d at 151, quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Consequently, "[e]ven where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam), quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Thus, "[i]n determining whether the agency's findings were supported by substantial evidence, 'the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'" Selian v. Astrue, supra, 708 F.3d at 417 (citation omitted).

2. Determination Of Disability

A claimant is entitled to DIB if he can establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months."³⁰ 42 U.S.C. § 423(d)(1)(A); see Barnhart v. Walton, 535 U.S. 212, 217-22 (2002) (both impairment and inability to work must last twelve months). The impairment must be demonstrated by "medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and it must be

30 The standards that must be met to receive SSI benefits under Title XVI of the Act are the same as the standards that must be met in order to receive DIB under Title II of the Act. Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Accordingly, cases addressing the former are equally applicable to cases involving the latter.

of such severity that [the claimant] is not only unable to do [her] previous work but cannot, considering [the claimant's] age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [the claimant] lives, or whether a specific job vacancy exists for [the claimant], or whether [the claimant] would be hired if [the claimant] applied for work.

42 U.S.C. § 423(d)(2)(A). In addition, to obtain DIB, the claimant must have become disabled between the alleged onset date and the date on which he was last insured. See 42 U.S.C. §§ 416(i), 423(a); 20 C.F.R. §§ 404.130, 404.315; McKinstry v. Astrue, 511 F. App'x 110, 111 (2d Cir. 2013) (summary order), citing Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). In making the disability determination, the Commissioner must consider: "'(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) (per curiam), quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).

In determining whether an individual is disabled, the Commissioner must follow the five-step process required by the regulations. 20 C.F.R. § 404.1520(a)(4)(i)-(v); see Selian v. Astrue, supra, 708 F.3d at 417-18; Talavera v. Astrue, supra, 697 F.3d at 151. The first step is a determination of whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. § 404.1520(a)(4)(i). If he is not, the second step requires determining whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does not have a severe medically determinable impairment or combination of impairments, he is not disabled. See Henningsen v. Comm'r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 264 (E.D.N.Y. 2015); 20 C.F.R. § 404.1520(c). If he does, the inquiry at the third step is whether any of claimant's impairments meet one of the listings in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the answer to this inquiry is affirmative, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

If the claimant does not meet any of the listings in Appendix 1, step four requires an assessment of the claimant's residual functional capacity ("RFC") and whether the claimant can still perform his past relevant work given his RFC. 20 C.F.R. § 404.1520(a)(4)(iv); see Barnhart v. Thomas, supra, 540 U.S. at 24-25. If he cannot, then the fifth step requires assessment of whether, given the claimant's RFC, he can make an adjustment to other work. 20 C.F.R. § 404.1520(a)(4)(v). If he cannot, he will be found disabled. 20 C.F.R. § 404.1520(a)(4)(v).

RFC is defined in the applicable regulations as "the most [the claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a)(1). To determine RFC, the ALJ "'identif[ies] the individual's functional limitations or re- strictions and assess[es] . . . [his] work-related abilities on a function-by-function basis, including the functions in paragraphs (b),(c), and (d) of 20 [C.F.R. §] 404.1545 . . . .'" Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam), quoting Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 at *1 (July 2, 1996). The results of this assessment determine the claimant's ability to perform the exertional demands of sustained work which may be categorized as sedentary, light, medium, heavy or very heavy.³¹ 20 C.F.R. § 404.1567; see Schaal v. Apfel, 134 F.3d 496, 501 n.6 (2d Cir. 1998). This ability may then be found to be limited further by nonexertional factors that restrict the claimant's ability to work.³² See Michaels v. Colvin, 621 F. App'x 35, 38 n.4 (2d Cir. 2015) (summary order); Zabala v. Astrue, 595 F.3d 402, 410-11 (2d Cir. 2010).

31 Exertional limitations are those which "affect only [the claimant's] ability to meet the strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).

32 Nonexertional limitations are those which "affect only [the claimant's] ability to meet the demands of jobs other than the strength demands," including difficulty functioning because of nervousness, anxiety or depression, maintaining attention or concentration, understanding or remembering detailed instructions, seeing or hearing, tolerating dust or fumes, or manipulative or postural functions, such as reaching, handling, stooping, climbing, crawling or crouching. 20 C.F.R. § 404.1569a(c).

The claimant bears the initial burden of proving disability with respect to the first four steps. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step -- that the claimant's RFC allows the claimant to perform some work other than his past work. Selian v. Astrue, supra, 708 F.3d at 418; Burgess v. Astrue, supra, 537 F.3d at 128; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended in part on other grounds on reh'g, 416 F.3d 101 (2d Cir. 2005).

In some cases, the Commissioner can rely exclusively on the Medical-Vocational Guidelines (the "Grids") contained in C.F.R. Part 404, Subpart P, Appendix 2 when making the determination at the fifth step. Gray v. Chater, 903 F. Supp. 293, 297-98 (N.D.N.Y. 1995). "The Grid[s] take[] into account the claimant's RFC in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid[s] indicate[] whether the claimant can engage in any other substantial gainful work which exists in the national economy." Gray v. Chater, supra, 903 F. Supp. at 298; see Butts v. Barnhart, supra, 388 F. 3d at 383.

Exclusive reliance on the Grids is not appropriate where nonexertional limitations "significantly diminish [a claimant's] ability to work." Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986); accord Butts v. Barnhart, supra, 388 F.3d at 383. "Significantly diminish" means "the additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Bapp v. Bowen, supra, 802 F.2d at 606 (footnote omitted); accord Selian v. Astrue, supra, 708 F.3d at 421; Zabala v. Astrue, supra, 595 F.3d at 411. Before an ALJ determines that sole reliance on the Grids is proper in determining whether a plaintiff is disabled under the Act, he must ask and answer the intermediate question -- whether the claimant has nonexertional limitations that significantly diminish her ability to work; an ALJ's failure to explain how he reached his conclusion to this question is "plain error". See Maldonado v. Colvin, 15 Civ. 4016 (HBP), 2017 WL 775829 at *21-*23 (S.D.N.Y. Feb. 23, 2017) (Pitman, M.J.); see also Bapp v. Bowen, supra, 802 F.2d at 606 ; St. Louis ex rel. D.H. v. Comm'r of Soc. Sec., 28 F. Supp. 3d 142, 148 (N.D.N.Y. 2014); Baron v. Astrue, 11 Civ. 4262 (JGK)(MHD), 2013 WL 1245455 at *19 (S.D.N.Y. Mar. 4, 2013) (Dolinger, M.J.) (Report & Recommendation), adopted at, 2013 WL 1364138 (S.D.N.Y. Mar. 26, 2013) (Koeltl, D.J.). When the ALJ finds that the nonexertional limitations do significantly diminish a claimant's ability to work, then the Commissioner must introduce the testimony of a vocational expert or other similar evidence in order to prove "that jobs exist in the economy which [the] claimant can obtain and perform." Butts v. Barnhart, supra, 388 F.3d at 383-84 (internal quotation marks omitted); see Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983) ("If an individual's capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered.").

B. The ALJ's Decision

The ALJ applied the five-step analysis described above and determined that plaintiff was not disabled (Tr. 10-30).

As an initial matter, the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2019 (Tr. 13).

At step one, the ALJ found that plaintiff had not engaged in SGA since October 3, 2013 (Tr. 13).

At step two, the ALJ concluded that plaintiff suffered from the severe impairments of a rotator cuff tear, moyamoya disease, asthma and morbid obesity (Tr. 13). The ALJ also concluded that plaintiff suffered from the non-severe impairments of hypertension, a right shoulder sprain and expressive aphasia (Tr. 13-14).

At step three, the ALJ found that plaintiff's impairments did not meet or medically equal the criteria of the listed impairments and that plaintiff was not, therefore, entitled to a presumption of disability (Tr. 14-15). In reaching his conclusion, the ALJ stated that he gave specific consideration to Listings 1.02, 3.03, 11.04 and 12.02. The ALJ concluded that plaintiff's shoulder impairment did not meet the requirements of Listing 1.02 because plaintiff did "not suffer from chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the shoulder, and [the record contained] no findings of joint space narrowing, bony destruction or ankylosis in the shoulder" accompanied by the requirements of paragraph A or B of the listing -- namely, an inability to perform fine and gross movements effectively (Tr. 15).

The ALJ concluded that plaintiff's asthma did not meet the requirements of Listing 3.03 because "[t]he medical evidence in the record d[id] not document any hospitalizations due to asthma related symptoms" (Tr. 15).

The ALJ concluded that plaintiff did not meet the requirements of Listing 11.04 because the record did not establish "sensory or motor aphasia, significant and persistent disorganization of motor function in two extremities . . . or marked limitation in physical functioning and in one of the following areas of mental functioning . . . persisting for at least 3 consecutive months:" understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace or adapting or managing oneself (Tr. 15).

Finally, the ALJ concluded that plaintiff's moyamoya disease did not meet the requirements of paragraph B of Listing 12.02 because plaintiff did not exhibit mental impairments that resulted in "at least one extreme or two marked limitations" in either: understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace or adapting or managing oneself (Tr. 15-16). He also concluded that plaintiff did not meet the requirements of paragraph C of Listing 12.02 because "the record [did] not demonstrate medical treatment, mental health therapy, psychosocial supports, or a highly structured setting that diminishe[d] the symptoms and signs of [plaintiff's] mental disorder, with [plaintiff] achieving only marginal adjustment" (Tr. 16).

The ALJ then determined that plaintiff retained the RFC to perform light work with the following limitations:

[Plaintiff] can never reach overhead with the left upper extremity. He can occasionally reach in all other directions with his left upper extremity. His fingering and feeling is limited to frequently and his ability to handle is limited to occasionally with the left upper extremity. He cannot push or pull with the upper left extremity. He is right hand dominant. [Plaintiff] can climb ramps and stairs occasionally; never climb ladders, ropes, or scaffolds. He can balance, stoop, kneel, crouch, and crawl occasionally. He can never work at unprotected heights, never be exposed to moving mechanical parts, and never operate a motor vehicle. He can have no concentrated exposure to dust, odors, fumes, or pulmonary irritants. In addition to normal break, he will be off task 5 percent of the time in an 8-hour workday.(Tr. 16-17).

To reach his RFC determination, the ALJ examined the opinions of the treating and consulting physicians and determined the weight to be given to each opinion based on the objective medical record (Tr. 24-27).

The ALJ afforded "partial weight" to the opinions of Drs. Toulipoulos, Demarco, Vlattas and Neuman because as plaintiff's "examining and treating physicians, they [had] some insight into [plaintiff's] condition and their treatment notes document[ed] [plaintiff's] symptoms", but their "opinions fail[ed] to provide a function by function assessment of [plaintiff's] abilities, and instead provide[d] vague statements" (Tr. 24). However, the ALJ gave "more weight" to Dr. Vlattas' opinion that plaintiff could perform "light duty work" because it was "consistent with the objective medical evidence of record showing [that plaintiff] had tenderness, decreased range of motion, and weakness in his left shoulder" (Tr. 24).

The ALJ afforded "some weight" to the following opinions:

Dr. Cohen opined in December 2013 [that plaintiff] was capable of working light duty with restrictions of no lifting, carrying, pushing, or pulling more than 30 pounds. Dr. Bregman opined in April 2014 that [plaintiff] had moderate disability and could return to work with limitations of no lifting, pushing, or pulling of objects greater than 15 pounds. Dr. Bregman then opined in September 2014 that [plaintiff] had no disability and could return to work without restrictions or limitations. In October 2015, he concluded [that plaintiff] had a 25 percent disability and could return to work with restrictions of no lifting, pushing, pulling objects greater than 25 pounds (Tr. 25 (internal citations omitted)).

The ALJ noted that Drs. Cohen and Bregman "based their assessments on physical exams of [plaintiff]" and were "consistent with the results of [plaintiff's] physical exams that generally revealed no more than moderate physical symptoms regarding his left shoulder", but also noted that they were not plaintiff's treating physicians and their opinions regarding plaintiff's "status as disabled or not go to an issue reserved to the Commissioner" (Tr. 25).

The ALJ afforded "partial weight" to Dr. Antoniello's December 2014 opinion that plaintiff was unable to work and his April 2017 opinion that plaintiff had a "permanent disability" based on his "memory impairment, impulsiveness, impaired judgment, and impaired concentration" because he was one of plaintiff's treating physicians, but he "failed to provide a function-by-function assessment of [plaintiff's] abilities" and "did not provide adequate support for his conclusion that [plaintiff] could not work [because] the record contain[ed] very little treatment of [plaintiff's] moyamoya disease since 2015 and . . . the record suggest[ed] that [plaintiff's] symptoms associated with moyamoya disease improved" (Tr. 25).

The ALJ afforded "partial weight" to Dr. Gordon's December 2014 opinion that plaintiff was "completely disabled" because "Dr. Gordon did not provide much detail for his conclusion" and "failed to factor in other evidence, such as [plaintiff's] activities of daily living" (Tr. 26).

The ALJ afforded "great weight" to Dr. Broska's opinion that plaintiff had no "psychiatric limitations in his vocational abilities . . . because it [was] consistent with the record of evidence" and "with her normal mental status examination of [plaintiff]" (Tr. 26).

The ALJ afforded "significant weight" to the opinions and testimony of medical expert Dr. Goldstein because "he is an expert witness before the Social Security Administration", "had access to all of the medical evidence of record when he offered his opinion" and "his opinions [were] consistent with the objective medical evidence of record" (Tr. 26).

Finally, the ALJ afforded "significant weight" to Dr. Meisel's opinions that plaintiff "had marked limitations of lifting, carrying, and reaching overhead with the left arm" and "though [plaintiff] had marked expressive aphasia, he was able to comprehend direct instructions" because they were "consistent with the evidence of record as a whole" and "with many results of [plaintiff's] physical examinations" (Tr. 26-27).

The ALJ also considered plaintiff's shoulder and brain MRIs and surgeries, physical therapy treatment, impulsiveness resulting from his moyamoya disease, his April 2015 seizure and plaintiff's testimony in determining his RFC (Tr. 17-23). The ALJ found that while plaintiff's medically determinable impairments could reasonably have caused his alleged symptoms, his statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record (Tr. 18).

At step four, the ALJ concluded that plaintiff could not perform his past relevant work as a delivery truck driver because the VE had defined that job as a medium exertion position as it is performed in the national economy (Tr. 28).

At step five, relying on the testimony of the VE, the ALJ found that jobs existed in significant numbers in the national economy that plaintiff could perform, given his RFC, age and education (Tr. 29).

C. Analysis of the ALJ's Decision

Plaintiff contends that the ALJ's disability determination was erroneous because (1) the ALJ erred in not calling a medical expert to determine whether plaintiff's impairments met or were medically equal to the Listings and (2) the ALJ's RFC was not supported by substantial evidence (Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment on the Pleadings, dated Dec. 28, 2018 (D.I. 15) ("Pl. Memo.")). The Commissioner contends that the ALJ's decision was supported by substantial evidence and should be affirmed (Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings, dated Apr. 16, 2019 (D.I. 20) ("Def. Memo.")).

As described above, the ALJ went through the sequential process required by the regulations. The ALJ's analysis at steps one, two and four were decided in plaintiff's favor, and the Commissioner has not challenged those findings. I shall, therefore, limit my discussion to addressing whether the ALJ's analysis at step three complied with the applicable legal standards and was supported by substantial evidence.

1. Step 3: the Listings

Plaintiff alleges that the ALJ improperly and summarily stated that plaintiff did not meet Listings 1.02, 3.03, 11.04 or 12.04 and that "[a]t the very least, the ALJ should have obtained a [medical expert] to determine whether the combination of [p]laintiff's impairments met or equaled any listings" (Pl. Memo. at 18). This argument is completely devoid of merit. The ALJ conducted a detailed analysis of the medical record to reach his conclusion that plaintiff did not meet Listings 1.02, 3.03, 11.04 or 12.04 and called a medical expert at the hearing, Dr. Goldstein, who testified specifically to the Listings. Plaintiff's counsel was also given a full opportunity at the hearing to cross-examine Dr. Goldstein (Tr. 59-61).

Furthermore, plaintiff does not even identify which of the Listings determinations he is challenging and makes no substantive arguments addressing how the medical record shows that his impairments met or medically equaled a listing. In any event, the ALJ's determination that plaintiff did not meet or medically equal Listings 1.02, 3.03, 11.04 and 12.02 is supported by substantial evidence.

To establish that an impairment meets or is medically equal to a listing, a claimant must show that his impairments "meet all of the specified criteria." Sullivan v. Zebley, 493 U.S. 521, 530 (1990); accord Solis v. Berryhill, 692 F. App'x 46, 48 (2d Cir. 2017); King v. Astrue, 32 F. Supp. 3d 210, 218 (N.D.N.Y. 2012). If a claimant's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify. Sullivan v. Zebley, supra, 493 U.S. at 530; see also Scully v. Berryhill, 282 F. Supp. 3d 628, 636 (S.D.N.Y. 2017) (Gorenstein, M.J.). To satisfy this burden, a claimant must show abnormal physical findings that "must be determined on the basis of objective observation during the examination and not simply a report of the individual's allegation." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.00(D).

a. Listing 1.02

Listing 1.02 requires "a gross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint, and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint" with one or more of the following:

(A) Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively; or

(B) Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively . . .

20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.04.

Although plaintiff's left shoulder MRIs revealed mild to moderate tendinitis and bursitis and a rotator cuff tear, the record does not contain any evidence of joint space narrowing, boney destruction or ankylosis (Tr. 309, 815). Furthermore, there is nothing in the record to suggest that plaintiff ever had difficulty ambulating or was unable to perform fine and gross movements effectively. Dr. Bregman noted at all three of his evaluations that plaintiff was able to "grasp" with both hands (Tr. 782, 786, 790). Similarly, Dr. Cohen found that plaintiff was able to hold, grasp and pinch bilaterally (Tr. 799). During his consultative examination in 2016, Dr. Meisel noted that plaintiff's hand and finger dexterity were intact and he exhibited full grip strength bilaterally (Tr. 877). Dr. Meisel further opined that despite plaintiff's limitations in his left arm, he was able to finger, feel and handle objects (Tr. 882). Finally, after plaintiff's October 2013 TIA and 2014 brain surgeries, doctors at Montefiore Medical Center noted that plaintiff exhibited "symmetric fine finger movements" (Tr. 543, 593, 616).

Thus, there is substantial evidence to support the ALJ's determination that plaintiff did not meet or medically equal Listing 1.02.

b. Listing 3.03

Listing 3.03 addresses asthma and requires, among several other things, "three hospitalizations within a 12-month period . . . at least 30 days apart . . . [that] last[ed] at least 48 hours" for asthma related symptoms. 20 C.F.R. pt. 404, Subpt. P, App. 1, § 3.03. While plaintiff's asthma is mentioned throughout the record and is taken into account in the ALJ's RFC, there are no treatment notes related to plaintiff's asthma, let alone hospitalizations, in the entire record. Thus, it is clear that plaintiff does not meet or medically equal Listing 3.03.

c. Listings 11.04 and 12.02

With respect to plaintiff's neurological impairments, the ALJ specifically analyzed Listings 11.04 and 12.02 (Tr. 15-16). Listing 11.04 addresses "vascular insult[s] to the brain" and requires a showing of one or more of the following:

(A) Sensory or motor aphasia resulting in ineffective speech or communication persisting for at least 3 consecutive months after the insult; or

(B) Disorganization of motor function in two extremities, resulting in an extreme limitation in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the insult; or

(C) Marked limitation in physical functioning and in one of the following areas of mental functioning, both persisting for at least 3 consecutive months after the insult: Understanding, remembering, or applying information; or interacting with others; or concentrating, persisting, or maintaining pace or adapting or managing oneself.

20 C.F.R. pt. 404, Subpt. P, App. 1, § 11.04 (internal citations omitted).

While Dr. Meisel and Dr. Goldstein discussed the expressive aphasia that plaintiff exhibited on December 16, 2016, this aphasia appeared to be transient and did not persist for the three consecutive months required under paragraph A given that plaintiff was able to fluently testify at his hearing on January 19, 2017 and had no issues communicating with Dr. Vlattas at his examinations on September 7, 2016 and December 7, 2016 or with Dr. Neuman at his examination on October 20, 2016 (Tr. 868, 896, 976). As to paragraphs B and C, while the record shows that plaintiff had some marked limitations in the function of his left arm and shoulder, all of his treating and consultative physicians agreed that these limitations were due to his July 2, 2013 shoulder injury that resulted in a left rotator cuff tear and were unrelated to his moyamoya disease or TIA.

Thus, there is substantial evidence to support the ALJ's determination that plaintiff did not meet or medically equal Listing 11.04.

Listing 12.02 addresses neurocognitive disorders and requires "medical documentation of a significant cognitive decline from a prior level functioning" with one or more of the following:

(B) Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; adapt or manage oneself; or

(C) [The] mental disorder . . . is 'serious and persistent;' . . . [with] a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of [the] mental disorder; and marginal adjustment . . . .

20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.02 (internal citations omitted).

"Limitations to an area of functioning are considered 'marked' when the ability to function independently, appropriately and effectively on a sustained basis is seriously limited . . . and are considered 'extreme' when there is no ability to function independently, appropriately, and effectively on a sustained basis." McGee v. Berryhill, 354 F. Supp. 3d 304, 310 (W.D.N.Y. 2018) (internal citations omitted).

With respect to understanding, remembering or applying information, the ALJ found that plaintiff had only "mild limitations" (Tr. 16). Plaintiff reported some short-term memory loss to Dr. Broska on February 12, 2015, but exhibited normal memory and a coherent thought process during the examination (Tr. 478-79). Plaintiff also reported memory loss to Dr. Meisel on December 16, 2016, but was able to understand and follow directions (Tr. 876). On October 10, 2013, April 23, 2014 and June 4, 2014, Dr. Antoniello noted that plaintiff's memory and language was normal (Tr. 397, 400, 469). Similarly, Dr. Gordon tested plaintiff's short-term memory on September 26, 2014 and found it to be normal (Tr. 393). Plaintiff also reported that he was not experiencing memory loss after his February 4, 2014 surgery (Tr. 405-06). Given these normal findings, the record supports the ALJ's conclusion that plaintiff's ability to understand, remember or apply information was not "seriously limited."

With respect to interacting with others, the ALJ also found that plaintiff had only "mild limitations" (Tr. 16). On November 25, 2013, plaintiff reported to Dr. Rahman that he was not having any difficulty getting along with others (Tr. 451). He also noted in his Function Report that he had no problems interacting with others and stated that he enjoyed socializing with friends and family (Tr. 235). However, plaintiff's wife reported that plaintiff was exhibiting socially unacceptable and impulsive behavior from March 2014 through June 2014 (Tr. 391, 396, 403, 405). Drs. Gordon, Antoniello and Meisel also noted that plaintiff laughed inappropriately during some of their examinations (Tr. 393, 400, 403, 876). Given the length of time these symptoms persisted, it is arguable that plaintiff's ability to interact appropriately with others could be considered a "marked limitation" as opposed to a "mild limitation." However, as the ALJ noted, Drs. Gordon and Antoniello also found that plaintiff's impulsive behavior continued to improve throughout 2014 and it is well settled that where there are conflicts in the medical evidence, "it is the ALJ's decision that controls as factfinder." King v. Astrue, supra, 32 F. Supp. 3d at 220, citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983).

The ALJ found that plaintiff had no limitations with respect to his ability to concentrate, persist or maintain pace (Tr. 16). Throughout the majority of plaintiff's examinations with Drs. Antoniello and Gordon, plaintiff was "alert" and "oriented" (Tr. 366, 397, 469). Dr. Rahman also noted that plaintiff was alert, oriented and exhibited a normal attention span and concentration on October 16, 2013, and plaintiff reported that he was not experiencing any difficulty concentrating on November 25, 2013 (Tr. 451, 458). On February 12, 2015, Dr. Broska found that plaintiff was alert, oriented and exhibited "intact concentration" (Tr. 479). Thus, there is substantial evidence to support the ALJ's finding that plaintiff's ability to concentrate, persist or maintain pace was not "seriously limited."

Finally, with respect to plaintiff's ability to adapt or manage himself, the ALJ found that plaintiff had "mild limitations" (Tr. 16). Plaintiff reported multiple times throughout the record that he was able to take care of things at home, including dressing, bathing, grooming, making breakfast, managing his money and carrying out household chores (Tr. 231-32, 451, 480). However, he also testified at his hearing that his wife and his adult children had to perform all his household chores for him (Tr. 68). As discussed above, although there is some evidence in the record that plaintiff's ability to manage himself might be markedly limited, because there is evidence that also supports this ability was only mildly limited, it is the ALJ's determination that controls. King v. Astrue, supra, 32 F. Supp. 3d at 220; see also Scully v. Berryhill, supra 282 F. Supp. 3d at 636 (ALJ's decision upheld where medical evidence could support either finding that claimant did or did not medically equal a listing).

With respect to the requirements of paragraph C of Listing 12.02, plaintiff was diagnosed with moyamoya disease in October 2013 and has been receiving ongoing medical treatment at Montefiore Medical Center. However, the record fails to establish evidence of only marginal adjustment. "Marginal adjustment" is defined as "minimal capacity to adapt to changes in [one's] environment or to demands that are not already part of [one's] daily life." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.02(C)(2). This generally requires a showing that any changes in a plaintiff's environment has led to a "deterioration in . . . functioning", an inability to function outside the home or "a significant change in medication or other treatment." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.00(G)(2)(c). The record does not contain evidence of only marginal adjustment. On the contrary, Drs. Gordon and Antoniello's treatment notes indicated that plaintiff's moyamoya disease symptoms were actually showing some improvement in the later half of 2014. This is also corroborated by the fact that plaintiff did not seek treatment from any treating physician for his moyamoya disease during 2016.

Thus, the ALJ's determination that plaintiff did not meet or medically equal Listing 12.02 is supported by substantial evidence.

2. Step 3: the ALJ's RFC Determination

Plaintiff next contends that the ALJ's RFC of light work is not supported by substantial evidence (Pl. Memo. at 17). Plaintiff once again does not set forth any substantive arguments or cite to any medical evidence to explain why the ALJ's RFC was improper; rather, plaintiff merely alleges that the ALJ erred in only affording "partial weight" to the opinions of Drs. Toulipoulos, Demarco, Vlattas and Neuman (Pl. Memo. at 17).

The ALJ held that plaintiff retained the RFC to perform light work with the following limitations:

[Plaintiff] can never reach overhead with the left upper extremity. He can occasionally reach in all other directions with his left upper extremity. His fingering and feeling is limited to frequently and his ability to handle is limited to occasionally with the left upper extremity. He cannot push or pull with the upper left extremity. He is right hand dominant. [Plaintiff] can climb ramps and stairs occasionally; never climb ladders, ropes, or scaffolds. He can balance, stoop, kneel, crouch, and crawl occasionally. He can never work at unprotected heights, never be exposed to moving mechanical parts, and never operate a motor vehicle. He can have no concentrated exposure to dust, odors, fumes, or pulmonary irritants. In addition to normal break, he will be off task 5 percent of the time in an 8-hour workday.(Tr. 16-17).

a. Plaintiff's Exertional Limitations

The ALJ's assessment of plaintiff's exertional limitations and his RFC finding with respect to plaintiff's physical impairments is supported by substantial evidence. The overall medical record clearly establishes that plaintiff had limitations in his left arm due to his tendinitis, bursitis and rotator cuff tear that ultimately required two surgeries. Drs. Vlattas, Toulipoulos, Demarco, Cohen, Neuman, Bregman, Meisel and Goldstein all noted range of motion limitations in plaintiff's left shoulder.

Specifically, Dr. Bregman opined that plaintiff should refrain from lifting, pushing or pulling objects weighing more than 25 pounds (Tr. 783). Dr. Cohen opined that plaintiff had a "mild partial disability" in his left shoulder and that he should refrain from lifting, pushing or pulling objects weighing more than 30 pounds (Tr. 799). Dr. Meisel went even further and opined that plaintiff could not lift any objects with his left arm and could never reach overhead with his left hand, but could occasionally lift objects up to 20 pounds with his right arm (Tr. 879-881). Drs. Touliopoulos, Vlattas, Neuman and Demarco never specifically assessed plaintiff's functional limitations, but opined throughout the record that plaintiff had some level of disability with respect to his prior work as a truck driver and porter (Tr. 316, 332, 659, 673, 682, 708, 724, 727, 730, 763, 810, 813, 873, 898, 1073, 1062). These opinions are all consistent with the ALJ's finding that plaintiff had the RFC to perform light work so long as plaintiff never had to reach overhead, push or pull with his left arm. See 20 C.F.R. § 404.1567(b) ("Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying objects weighing up to 10 pounds.").

Moreover, plaintiff's argument that the ALJ did not properly consider the opinions of Drs. Toulipoulos, DeMarco, Vlattas and Neuman is without merit. As discussed above, the ALJ largely incorporated the treatments notes and observations of these physicians into his RFC determination, finding that plaintiff was severely limited in his ability to use his left arm. The ALJ afforded their opinions "partial weight" and not "greater weight" because they did not provide a function-by-function analysis of plaintiff's physical limitations and, instead, just provided vague statements as to plaintiff's level of disability without further explanation (Tr. 24). As the ALJ correctly pointed out, "[a] treating physician's statement that the claimant is disabled cannot itself be determinative" with respect to a claim of disability claim under the Act. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); see also Harris v. Astrue, 935 F. Supp. 2d 603, 609 (W.D.N.Y. 2013), aff'd, 561 F. App'x 81 (2d Cir. 2014) (treating physician's "opinion that plaintiff appeared permanently disabled and unable to do any work is a conclusion of law specifically reserved to the judgment of the Commissioner").

Even if this was not the case, Drs. Touliopoulos', Vlattas', Neuman's and Demarco's opinions as to plaintiff's level of disability were consistently limited to plaintiff's prior specific position as a delivery truck driver and porter (Tr. 316, 332, 659, 673, 682, 708, 724, 727, 730, 763, 810, 813, 873, 898, 1073, 1062). None of these physicians ever assessed plaintiff's abilities to perform less demanding work. Considering plaintiff stated that his previous position frequently required him to lift and carry objects that weighed 50 pounds or more, Drs. Touliopoulos', Vlattas', Neuman's and Demarco's opinions that plaintiff was totally disabled from his previous work are not inconsistent with the ALJ's RFC.

Thus, the ALJ's assessment of the opinions of Drs. Toulipoulos, DeMarco, Vlattas and Neuman and plaintiff's exertional limitations was proper and supported by substantial evidence.

b. Plaintiff's Nonexertional Limitations

Although not even addressed by plaintiff, I respectfully recommend that the ALJ's assessment of plaintiff's nonexertional limitations stemming from his moyamoya disease were improper and his mental RFC finding was not supported by substantial evidence.

The ALJ acknowledged the severity of plaintiff's moyamoya disease and his neurological limitations in his assessment of whether plaintiff met or was medically equal to Listings 11.04 and 12.02. Specifically, the ALJ found that plaintiff had "mild limitations" in the areas of understanding, remembering or applying information, interacting with others and adapting and managing himself (Tr. 16). However, the ALJ did not question the VE about whether these limitations would affect plaintiff's ability to find work in the national economy, nor did he account for such nonexertional limitations in his RFC determination. Instead, the ALJ merely stated that he considered plaintiff's neurological impairments and "consequently [found that plaintiff] will be off task 5 percent of the time in an 8-hour workday" (Tr. 22). This assessment is problematic.

First, the ALJ does not explain where he even comes up with his assessment of the amount of time plaintiff would be off task. This assessment was not suggested by any of the 10 physicians who examined plaintiff during the relevant period, nor was it discussed by medical expert, Dr. Goldstein, at plaintiff's hearing. The ALJ improperly substituted his own judgment as to what an appropriate amount of "off task" time would be without any medical support. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) ("In the absence of a medical opinion to support the ALJ's finding . . . it is well settled that the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." (internal quotation marks and citation omitted)); Williams v. Comm'r of Soc. Sec., 366 F. Supp. 3d 411, 417 (W.D.N.Y. 2019) (ALJ cannot make an RFC finding where "no medical source provided an opinion" specific to that RFC finding and "there are no underlying documents supporting any such evaluation"). Thus, this portion of the ALJ's RFC determination is not supported by substantial evidence. See Johnson v. Comm'r of Soc. Sec., 351 F. Supp. 3d 286, 292 (W.D.N.Y. 2018) ("an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence" (internal quotation marks and citation omitted)).

Second, the ALJ also failed to explain how being off task for any length of time would properly account for plaintiff's limitations with understanding, remembering or applying information, interacting with others and adapting and managing himself. The ALJ only asked the VE what the "tolerable limit of being off task" was for a host, usher or counter clerk (Tr. 81). He did not ask her to consider limiting plaintiff to simple work or limiting plaintiff to positions with minimal interaction with the public. Thus, the ALJ's logic in this regard was completely circular. He essentially asked about what he speculated to be an appropriate solution without first addressing the obvious nonexertional impairments. See Golden v. Comm'r of Soc. Sec., 11-CV-65 (NAM), 2014 WL 2215768 at *12 (N.D.N.Y. May 29, 2014) (remand required where the ALJ failed to present plaintiff's nonexertional limitations to the VE and failed to consider them in his RFC).

Third, there is significant evidence in the record that plaintiff struggled with interacting with others appropriately after his brain surgeries, and all three jobs identified by the VE involve substantial contact with the public. This error was not harmless because the ALJ's failure to properly account for these limitations likely had an effect on his finding that plaintiff was not disabled. Thus, remand is required to consider plaintiff's nonexertional limitations properly. Benson v. Berryhill, 15-CV-935 (RJA)(HBS), 2017 WL 5054572 at *6 (W.D.N.Y. Oct. 4, 2017) (Report & Recommendation), adopted at, 2017 WL 5010655 (W.D.N.Y. Nov. 2, 2017) (remanding where the ALJ failed to determine the impact of nonexertional limitations of anemia on plaintiff's RFC); Golden v. Comm'r of Soc. Sec., supra, 2014 WL 2215768 at *12 (remanding where the ALJ failed to determine the impact of nonexertional limitations of vertigo on plaintiff's RFC); Babcock v. Barnhart, 412 F. Supp. 2d 274, 281-83 (W.D.N.Y. 2006) (remanding where "the ALJ did not explain whether or how he considered certain medical source opinions in the record concern- ing the extent and severity of plaintiff's nonexertional limitations, and their effect on his ability to perform the full range of sedentary work.")

IV. Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's motion be granted and that the Commissioner's motion be denied.

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Lorna G. Schofield, United States District Judge, 40 Foley Square, Room 201, New York, New York 10007., and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Schofield. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); 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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York

May 29, 2019

Respectfully submitted,

/s/_________

HENRY PITMAN

United States Magistrate Judge Copies transmitted to: All Counsel