Cherico v. Colvin

Full title: DANIEL J. CHERICO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 7, 2014

12 Civ. 5734 (MHD) (S.D.N.Y. Aug. 7, 2014)

Opinion

12 Civ. 5734 (MHD)

08-07-2014

DANIEL J. CHERICO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Charles E. Binder, Esq. Law Office - Harry J. Binder and Charles E. Binder 60 East 42nd Street Suite 520 New York, New York 10165 Lesley A. Ramirez-Fisher, Esq. Assistant United States Attorney for the Southern District of New York 86 Chambers Street, 3rd Floor New York, New York 10007

MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE

MEMORANDUM & ORDER

:

Plaintiff Daniel J. Cherico filed this 2012 lawsuit to challenge the decision of the Commissioner of Social Security denying his 2000 application for an award of Social Security disability benefits. Plaintiff had sought such an award on the basis of multiple serious spinal problems extending back to 1986.

Both parties agree that the final decision of the Social Security Administration ("SSA") -- a decision on the last of three appeals by plaintiff to the SSA Appeals Council from three adverse rulings by two administrative law judges -- is not defensible. That said, defendant has moved to remand the case to the SSA for still further proceedings, while plaintiff has moved for judgment on the pleadings, contending that the already voluminous record demonstrates that he is entitled to an award of benefits at this stage. For the reasons that follow, we grant plaintiff's motion and order that the case be remanded solely to permit the calculation of benefits.

I. Prior Proceedings

We first summarize the extended and tortuous history of plaintiff's pursuit of insurance benefits through the administrative process. That effort, which was ultimately unsuccessful, lasted for approximately fifteen years, with much of that time attributable to administrative delays and errors.

Plaintiff, who is currently 69 years old, was eligible for disability insurance coverage through December 31, 1998. (Tr. 20). He first applied for disability insurance benefits on March 14, 1997. On that application, he reported a disability onset date of January 1, 1994. (Tr. 763-65). The SSA denied his claim initially on June 30, 1997 and then again on July 28, 1997. (Tr. 754). He did not appeal that determination by seeking an ALJ hearing, but rather filed a second application, on January 29, 1999, alleging the same onset date. (Tr. 755-58). That application was denied on May 6, 1999. (Tr. 766-77). He sought reconsideration, which was denied (Tr. 759-60), but he did not appeal further.

Represented by counsel, plaintiff filed his third application for benefits on September 29, 2000. (Tr. 44-51). Again, he listed January 1, 1994 as the onset date. (Tr. 45). The SSA denied this application initially, on October 22, 2000, and then on reconsideration, on December 14, 2000. (Tr. 52-54). Plaintiff next sought a hearing before an ALJ on April 9, 2001. (Tr. 57-59). He received that hearing on February 26, 2002 before ALJ Dennis G. Katz. (Tr. 935-61). In the wake of the hearing, Cherico amended his alleged onset date to December 2, 1998. (Tr. 240). The ALJ issued a decision on May 15, 2002, finding that Cherico had not been disabled through the period of his insurance coverage. (Tr. 246-52).

On June 10, 2002, plaintiff's counsel requested review by the SSA Appeals Council and asked at the same time for a copy of the hearing transcript. (Tr. 254). Having received response from the Appeals Council, plaintiff's counsel renewed his request on August 16, 2002, on September 27, 2002, and again on March 4, 2003. (Tr. 255-57). Finally, on April 22, 2004, the SSA provided a tape of the hearing, and plaintiff then submitted additional records to the Appeals Council on May 17, 2004. (Tr. 271-80). Plaintiff was rewarded for his patience when, on April 15, 2005, the Appeals Council remanded the case to the ALJ for further proceedings. (Tr. 291-94).

ALJ Katz held a brief second hearing on September 21, 2006. (Tr. 962-83). By decision dated October 18, 2006, he again found plaintiff not to have been disabled during the insured period. (Tr. 625-34). Plaintiff sought review by the Appeals Council, on October 25, 2006. (Tr. 642-43). This time the Appeals Council supplied the hearing tape promptly, on November 21, 2006 (Tr. 644-45), and plaintiff submitted his appellate request on December 13, 2006. (Tr. 646-48).

Following plaintiff's last submission, and despite numerous reminders of the pendency of the appeal from plaintiff's counsel (Tr. 649-66), the Appeals Council took no action until July 6, 2009. Finally, on that date the Appeals Council remanded the case for still another hearing, this time before a different ALJ. (Tr. 38-43, 668-73). That hearing was held before ALJ Robert Gonzalez on May 10, 2010. (984-1075). Following that hearing, on July 8, 2010 the ALJ found that plaintiff had not been disabled during the period of his insurance coverage. (Tr. 20-28). Plaintiff sought review before the Appeals Council on July 21, 2010 (Tr. 15), and submitted additional evidence in support of his application. (Tr. 14, 920-26). This time -- after a wait of nearly two years -- the Appeals Council denied his request by order dated June 11, 2012. (Tr. 11-14).

Having finally been definitively rebuffed by the SSA, plaintiff filed this lawsuit to review that denial on July 26, 2012.

II. The Administrative Record Before ALJ Gonzalez

A. Plaintiff's Account

We first summarize plaintiff's own hearing testimony and other pertinent written representations that he has made. In doing so we note that he testified at two of the three hearings -- the first in 2002 and the third in 2010 -- and made a brief statement at the second hearing, in 2006. In large measure his accounts on these occasions was consistent, although the passage of time unavoidably meant that his circumstances at the time of each hearing had changed to a degree.

Plaintiff was born in 1944. (Tr. 763). He received PhDs in Medical Psychotherapy and Public Health, and underwent post-doctoral training in gerontology. (Tr. 793-94, 941). He worked at the Long Island University campus in Rockland County as the dean and a faculty member and was also on the faculty of Columbia University. (Tr. 824, 941, 1044). He taught both health care administration and disability personnel administration at the graduate level, and mentored graduate students. (Tr. 1044-45). In addition, he treated some patients -- limited to priests and faculty members -- as a psychotherapist, although only on a non-pay basis. (Tr. 941).

According to Dr. Cherico, he first injured his back in November 1986, when he hoisted a very heavy box of books in connection with his work. (Tr. 942-43). Because of the resultant intense pain, he stopped working full-time shortly after the incident, but undertook part-time work, including some lecturing, until 1994. (Tr. 941-42). In 1996, he was involved in an automobile accident, which aggravated his condition to some extent, at least in the cervical spine. (Tr. 947-48, 953).¹

1 We note that although prior to the third hearing plaintiff repeatedly stated both to SSA and to doctors that the April 1996 accident had exacerbated pain in the cervical spine (Tr. 953), at the last hearing he suggested that the accident had not had such an effect. (Tr. 1053). It also bears mention that at one point he referred to the accident as having occurred in 1998 (See Tr. 979), an apparent error since the contemporaneous medical records reflect that it took place in April 1996. (E.g., Tr. 897).

Plaintiff stopped all work in 1994 because the pain and the side effects of his medications greatly interfered with the concentration necessary to conduct lectures and do other academic work. (Tr. 942-44, 980, 980, 1046, 1054, 1065). As he described the net effect of his condition, he lacked both "the intellectual stamina to stand in front of a class, as well as the physical stamina." (Tr. 1046).

In plaintiff's hearing testimony, he reported that the pain comes in spasms and can become so intense that he falls down. (Tr. 944, 949). Indeed, that is what occurred in 1986 when he first felt the pain. (Tr. 942-43). He was prescribed a variety of painkillers over the years which also affected his cognition and energy. (Tr. 945). As a result of the pain and pharmaceutical side effects, his cousin came to live with him to supervise his medical care, and his brother takes him for daily walks. (Tr. 980).

He testified that since 1994, when he gave up even part-time work, the condition had worsened. At that time he was able to stand or walk for up to 15 minutes and to sit for 15 minutes at a time. (Tr. 953). As of the time of the 2002 hearing, he could stand or walk only for three to five minutes at a time. (Tr. 949). He also cannot sit for extended periods because his "right leg would feel like it was paralyzed" (Tr. 1061), and he cannot even button his own shirt. (Tr. 1064).

His most comfortable position is in a reclining chair, but when lying on it he cannot reach forward or to the side or above his head. (Tr. 1062-63). He finds it difficult to rise from the chair, and has a cane to perambulate, although he does not use it unless absolutely necessary. (Tr. 949, 1063).

He typically wakes by 9 a.m., but it takes him until 11 a.m. to get up, wash, dress and eat something. (Tr. 950). He dozes much of the day because sleep at night is difficult due to pain. (Tr. 949). At the time of his first two hearings, he lived with his elderly mother and a younger brother, who is apparently retarded. (Tr. 950-51). Friends sometimes visit, and one friend used to come to the house five days each week to assist his mother in cooking and cleaning. (Tr. 950-52). His brother did the more rigorous housework, such as "garbage and the snow and the windows." (Tr. 951). Plaintiff would leave the house occasionally, but could sit in a car for only about ten minutes before he encountered extreme pain. (Tr. 950). He drove his mother to the food store because that is only a three-minute trip. (Tr. 951). He sometimes went with a friend to a nearby restaurant to eat, but only because the staff there let him stand and walk around frequently, as he must do when sitting becomes painful, as it does every five to seven minutes. (Tr. 952-53).

By the time of his last hearing, in 2010, his mother had died, and he lived with his brother. (Tr. 1057-58). By then, his sister would cook his meals, and his brother sometimes took him out to a restaurant. (Tr. 1057-58).

As for plaintiff's medical history, he reported that he had been treated since his 1986 injury by an orthopedic surgeon, Dr. Richard Memoli, whom he was seeing every six weeks or two months through at least 2003. (Tr. 946-47). He was also being seen on a regular basis since 1997 by an internist, Dr. Barbara Katzeff. (Tr. 87, 91-92). He underwent a wide variety of treatments for his pain, including acupuncture, spinal steroid injections, physical therapy, massage and other pain management. (Tr. 980). He also considered but declined surgery, a course that Dr. Memoli had recommended to him. (Tr. 948). He has taken a large array of prescribed medications, including Darvon, Celebrex, Tylenol with codeine, Vioxx, Amitriptyline, and Elavil. (Tr. 945). These medications have caused various side effects, including fatigue, nausea and some dizziness. (Tr. 1056).

B. Plaintiff's Medical History

1. Orthopedic Treatment by Drs. Posada and Memoli

Following plaintiff's back injury on November 19, 1986, he was initially seen by a Dr. Steven Posada, complaining of severe pain in the lower back and right hip. Dr. Posada sent him for a CT scan of the lumbosacral spine and for an MRI of the same portion of the spine, as well as for EMG studies. (Tr. 204). Of particular pertinence, the CT scan showed evidence of a lateral herniation at L3-4 (Tr. 459, 879), and an MRI showed disk degeneration, in the form of a "very prominent disk bulge" with "significant narrowing of the subarachnoid space at that level", and a mild bulge at L4-5. (Tr. 460, 876).

According to Dr. Richard Memoli, the orthopedic surgeon who began treatment of plaintiff in July 1988, all of these studies were positive for a right herniation of the L3-4 lumbar disk. (Tr. 204, 842). Dr. Memoli first saw plaintiff on July 25, 1988 and continued to see him on a periodic basis at least through December 23, 2003, nearly five years after the lapse of plaintiff's insurance coverage. (Tr. 617-20).²

2 Plaintiff testified that he saw Dr. Memoli every six to eight weeks over the years (Tr. 947), and the doctor's treatment notes confirm this (Tr. 209-21, 461-82), although Dr. Memoli's narrative summaries of treatment, prepared in 2001 and 2006, refer to only some of those visits. (See Tr. 204-21, 617-20).

At plaintiff's first visit -- as summarized in historical accounts by Dr. Memoli in 2001 and 2006 -- he was complaining of persistent pain in the lower back and extending down the right leg, "with numbness and buckling of the right knee." (Tr. 205, 617-18).³ Dr. Memoli examined plaintiff's range of motion and found it significantly limited in forward flexion (to 45 degrees) and lateral flexion (to 10 degrees both left and right), and reported that straight-leg raising was also positive bilaterally. (Tr. 205, 618). He further observed mild spasm and, based on a neurological examination, documented decreased sensation on the inner right leg. (Id.). Dr. Memoli recommended a myelogram and surgery, as well as physical therapy. (Id.).

3 The record contains treatment notes from Dr. Memoli extending from December 29, 1993 to April 23, 2001 (Tr. 209-21, 461-82), as well as Workers Compensation entries from him that start at August 3, 1988 and end on July 15, 2003. (Tr. 396-451). The index to the SSA administrative transcript incorrectly states that Dr. Memoli's treatment notes cover treatment from December 29, 1983 to October 12, 2001. (Tr. 2).

Plaintiff did not choose to pursue surgery (Tr. 843), a reluctance that he explained as attributable to fear of complications. (Tr. 427, 1053). Nonetheless, he underwent various other treatment modalities -- including physical therapy, steroid injections, and acupuncture -- and continued to see Dr. Memoli on a fairly regular basis, manifesting "positive physical findings" and complaining consistently "of pain in the lower back and into the legs". (Tr. 618, 842-43).

Dr. Memoli again saw Dr. Cherico on April 21, 1989, with plaintiff still complaining of pain. The doctor found a limited range of motion in the lumbosacral spine, accompanied by pain in his left leg and "neurological deficits." At the time, plaintiff was apparently undergoing physical therapy and was to be started on a swimming program. (Tr. 618). The doctor also noted that plaintiff was undergoing a pharmaceutical regime to deal with the pain and had undertaken a weight-reduction program, which had not relieved the symptoms. (Tr. 205, 618).

Dr. Memoli's 2001 narrative report⁴ next mentions plaintiff's visit on August 7, 1991, when he was still complaining of persistent pain. He was continued on physical therapy and medications, and the doctor again recommended surgery and arranged for resumption of swimming therapy. (Tr. 205, 618). Plaintiff was seen again, at the latest, on December 29, 1993 and possibly on March 28, 1994. (Tr. 221).

4 Dr. Memoli provided SSA with two almost identical narrative accounts of his treatment of Dr. Cherico, as well as his assessment of the plaintiff's capacities. (Tr. 204-08, 617-20). In these narratives he described certain visits, but the treatment notes contained in the record reflect many more visits. (Tr. 210-21, 461-82). Unfortunately, many of those notes are at least partly illegible.

Plaintiff returned on January 16, 1995, complaining of "persistent increased pain in the lower back." (Tr. 205, 618; see id. 220). The doctor's examination showed again a restricted range of motion in the lumbosacral spine "with tender myofascial nodules over the iliac crests" and continued leg pain. Plaintiff was continued on a program of physical therapy and gym exercises. (Tr. 205, 221, 618).

Plaintiff once again saw Dr. Memoli on April 26, 1995, with still more acute lower back pain. (Tr. 205-06, 220). He was continued on physical therapy, swimming, and medications. (Tr. 206, 220, 618-18A).

Dr. Cherico was again seen by Dr. Memoli on July 19, 1995. Based on his continuing pain Dr. Memoli prescribed Darvocet at 60 mg., to be taken three times a day. (Tr. 220).

Dr. Memoli saw plaintiff on September 18 and November 7, 1995, and then on April 2 and June 13, 1996. (Tr. 218-19). Unfortunately the doctor's notes from those visits are largely illegible, and he does not mention those examinations in his narrative reports.

Dr. Cherico's next visit was apparently on August 6, 1996. At that time, he reported increased low-back pain and stiffness, with the pain radiating into his legs. (Tr. 206, 217, 618A). He exhibited a continuing restricted range of motion in the lumbosacral spine as well as paravertebral spasms. His straight-leg raising also reflected a positive result. As a consequence, he was continued on the same treatment course, including swimming exercises. (Id.).

Plaintiff's next visit was on October 8, 1996, at which he exhibited the same symptoms. These included the restricted range of motion in the lumbosacral spine, tenderness in the lumbar spine process, a straight-leg raising test that was positive at 75 degrees and decreased sensation in the right leg. (Tr. 206, 217, 618A). He was therefore continued on exercise, medications and swim therapy. (Id.). He was seen again on December 30, 1996, with further confirmation of significant limitations on ranges of motion. As described by Dr. Memoli, flexion and extension of the lumbosacral spine were limited to 20 degrees and lateral flexion was five degrees on both the left and right sides. Straight-leg raising was positive at 75 degrees with decreased sensation in the right leg. (Tr. 216, 842-43). The plaintiff reported continuing pain in the lumbosacral spine, as well as tenderness in the lumbar spine process, along with persistent tenderness in the myofascial nodules of the iliac crest, accompanied by radiating pain down both legs. Dr. Memoli continued plaintiff on physical therapy twice a week and exercises, including swim therapy, and continued medication, including Naprosyn at 375 mg. (Tr. 843).

Dr. Memoli reports that plaintiff underwent an MRI of the lumbosacral spine on April 10, 1997. It showed a degenerated disk with a prominent bulge at L3-4, severe spinal stenosis at the same L3-4, mild spinal stenosis at L4-5 and L2-3, and facet hypertrophy at all lumbar levels. (Tr. 169, 206, 618A, 842). A CT scan also showed the lateral disk herniation at L3-4 and an EMG taken at the same time was consistent with the MRI and CT scan. (Tr. 842). Dr. Cherico was seen next on June 11, 1997. (Tr. 216). At that time his complaints were largely unchanged, as were the results of Dr. Memoli's physical examination of him. The one change noted was that plaintiff reported an increase in the frequency of his right leg giving way, with the result that he would fall. Dr. Memoli again prescribed Darvocet, continued plaintiff on physical therapy, and added prescriptions for acupuncture and massage therapy. (Tr. 216; see id. at 206, 618A).

Dr. Memoli saw plaintiff again on September 15 and December 15, 1997. (Tr. 215). On both occasions the doctor noted that there were no changes in plaintiff's complaints or his examination findings. He added prescriptions, including for Tylenol #3 with codeine. (Id.).

On March 6, 1998, plaintiff reported increased low-back pain. The doctor's physical findings were unchanged. Dr. Cherico was to continue physical therapy twice weekly and continue on medication. (Tr. 206, 214, 618A). Plaintiff was seen again on May 7, July 20, September 29, and October 23, 1998. Each time his complaints and physical findings remained the same. (Tr. 206, 214-15, 618A). Various pain prescriptions were added during this period.

On December 2, 1998, the first amended date of the alleged onset of disability, plaintiff underwent MRIs of the lumbar, cervical and thoracic spine. (Tr. 148-52, 206-07, 618A). These showed, in the lumbar spine, a bulging disk at L2-3 with mild compromise of the thecal sac; a bulging disk at L3-4 with a severe compromise of the sac and a mild narrowing of the foramina and hypertrophy of the ligamentum flavum⁵; disk bulges and osteophyte formation at L4-5; as well as extensive edema in portions of the L2 vertebra, and lesser edema at L3 and L4.⁶ The report left open whether the edema was attributable to discogenic sclerosis, aseptic discitis, or early infection. It also mentioned an abnormal bone marrow signal at L2 and L3. (Tr. 151-52). As for the cervical spine, the MRI -- undertaken because of persistent complaints of neck and mid-back pain (apparently following an automobile accident) -- showed diffuse degenerative disk disease, which was particularly marked at C5-6, with "chronic" central and bilateral disk herniation and osteophyte formation at that level that deformed the sac, touched the cord and appeared to reach the left C6 root, together with "mild" foraminal changes; a small central and slightly left-sided disk bulge at C4-5; and a left-sided disk bulge and proximal foraminal disk herniation at C7-T1. (Tr. 148-49). Finally, the thoracic MRI showed only mild diffuse degenerative disk disease. (Tr. 150; see Tr. 206-07, 618A).

5 This condition involves enlargement of the ligament that connects the spinal vertebrae, with resultant pressure on the nerve and spinal stenosis, causing pain, particularly in the lumbar spine. See Ligamentum Flavum, Laser Spine Institute (July 31, 2014, 10:25 AM), http://www.laserspineinstitute.com/articles/ligementum_flavum_article.com.

6 Dr. Memoli described this study as reflecting a herniated disk at L3-4 (Tr. 204), but the report does not so characterize that disk. (Tr. 151-52).

Following these tests, plaintiff continued to see Dr. Memoli on a regular basis. Throughout his visits of January 4, March 4, May 7, and September 7, 1999, and October 12, 2000, his condition remained largely unchanged. Dr. Memoli continued to document the same complaints of pain in the lower back, cervical region and mid-back, and recorded the same physical findings, and prescribed the same medications, as well as Vioxx, and the same treatments. (Tr. 207, 212-14).

Plaintiff returned on April 23, 2001, still reporting the same pain in his lower and mid-back and in his neck, and was continued on medications. (Tr. 207-08, 210, 618A-19). The last visit referred to in the treatment notes in the record took place on September 23, 2001, at which time Dr. Cherico once more reported "persistent and chronic pain in the neck, mid and low back." Dr. Memoli's examination yielded "positive physical findings" and plaintiff remained on his medication regime. (Tr. 619).

Although the treatment notes end on that date, Dr. Memoli reports seeing plaintiff as late as September 23, 2003. (Tr. 619). At that time, he still complained of "persistent and chronic pain in the neck, mid and lower back." Dr. Memoli's physical examination again resulted in positive findings, and the doctor kept him on medications. (Tr. 619).

In the two detailed narrative reports that Dr. Memoli submitted to SSA, he provided diagnoses in both his 2001 and 2006 narratives and assessed the degree of plaintiff's limitations, apparently dating from the 1986 injury. (Tr. 205-08, 618-20). He also proffered a shorter report -- recapitulating a June 1997 interview with SSA -- in which he described the plaintiff's last visit of 1996 and the radiological scans from April 1997. (Tr. 842-43).

In the interview with SSA in June 1997 and his resultant report, Dr. Memoli summarized the results of the April 10, 1997 MRI of the lumbar spine and corroborative CT scan and EMG results. He also reported the specific results of his most recent examinations of plaintiff's ranges of motion -- all of which were limited -- and concluded that plaintiff was "totally disabled for any form of work". (Tr. 842-43).

In Dr. Memoli's more extended 2001 narrative report, he diagnosed plaintiff with diffuse degenerative disk disease of the cervical spine, noting that it was more marked at C5-6, cervical disk herniations, cervical disk bulges, lumbar disk herniation, lumbar disk bulges and lumbar spinal stenosis, which he characterized in the summary -- based on the April 10, 1997 MRI -- as "severe". (Tr. 207, 206). As for physical limitations, which he indicated had originated in the 1986 injury, he reported that plaintiff was unable to push or pull, and that he could neither lift nor carry without increasing the pain in his lower back and neck, that he could not sit or stand for prolonged periods and could not walk for more than one block without "increased severe low back pain." He further noted that with these types of injuries it was common for the patient "to have acute exacerbations of increased pain and spasm, especially on weather change and over-exertion, causing further disability." He characterized plaintiff's condition as "chronic and permanent" and opined that these limitations precluded Dr. Cherico "from performing any type of occupation." (Tr. 207-08).

Dr. Memoli's 2006 narrative report provided the same diagnoses. As for plaintiff's limitations and ability to perform job-related activities, he offered the same assessment as he had included in the prior report, again concluding that plaintiff's condition precluded him "from working in any capacity." (Tr. 619).

2. Plaintiff's Internist -- Montefiore Medical Group & Dr. Katzeff

Plaintiff was under treatment by Dr. Barbara Katzeff from June 22, 1997 through the entire relevant period. During a major portion of that time she saw him while she was affiliated with Montefiore Medical Group. She consistently diagnosed him as suffering from disabling disk disease of the lumbar and cervical spine and spinal stenosis. (Tr. 736).

Treatment records described in the table of contents of the SSA administrative record as reflecting Dr. Katzeff's records are in fact from various treaters at Montefiore, starting in 1988 (Tr. 92-203), and reflect a miscellany of physical complaints. We focus on Dr. Katzeff's assessment and the treatment of plaintiff's spinal condition.

Dr. Katzeff began to see plaintiff after the scans of April 10, 1997 confirmed the physical source of his lumbar complaints. (Tr. 169). Her records show occasional reference to plaintiff's back condition, more commonly after the year 2000. In an undated treatment note, apparently from some time in the first half of 1997, the treater noted a history of right leg weakness but reported that plaintiff's reflexes were intact. (Tr. 167). In a note dated June 22, 1997, the doctor documented plaintiff's report that he had recently fallen four times because of buckling of his right leg. (Tr. 165). According to plaintiff's account, he had been in a car accident a year before, and it had exacerbated his disk disease. He reported that he had been previously diagnosed with a herniated disk at L3-4 and a bulging disk at L5-6, and that he suffered from lower-back pain, extending to both hips and down into his legs. According to the patient, his right-leg problem was unchanged since 1985 (presumably an erroneous reference to the 1986 incident). He reported that he was undergoing acupuncture, which "helps a bit." He also reported taking multiple medications. (Tr. 165). Later visits to Dr. Katzeff confirm plaintiff's continuing back pain with resultant limitations. (E.g., Tr. 124 (September 13, 1998 visit), 123 (November 6, 1998 visit)).

Following Dr. Katzeff's receipt of the scan reports from December 2, 1998, plaintiff was sent for a bone scan on January 5, 1999, to address the lumbar disk edema noted in those reports. (Tr. 145-46; see Tr. 122). The resulting bone-scan report found an increased uptake in L3, L4 and possibly L5, which was not indicative of degenerative change. The report recommended follow-up testing as to possible infection. (Tr. 145-46).

In a report of a CT scan of the plaintiff's abdomen on February 3, 1999 -- only one month after the expiration of plaintiff's insurance coverage -- the radiologist observed that "there are lucent and sclerotic changes involving the 2-3 and 3-4 disc spaces". (Tr. 143). In noting this condition, the report referred back to the December 2, 1998 MRI. (Id.).

On February 19, 1999, as a follow-up on the spinal-edema question, plaintiff underwent a right paraspinal aspiration biopsy. In the initial report the doctor observed that axial images showed "severe degenerative disc disease with discogenic end plate changes" at L3 and L4. At that level, she observed "broad based degenerative disc bulge and superimposed severe bilateral facet degenerative changes contributing to severe central spinal stenosis." (Tr. 141). In further elaboration, the doctor noted that "[t]hese images demonstrate a severely degenerative disc with a broad based, essentially circumferential degenerative disc bulge. There is, however, a moderate focal right paracentral herniation of the nucleus pulposus which severely narrows the right lateral recess and right L3-4 neural foramen. Again, severe bilateral facet degenerative changes, as well as the superimposed broad based degenerative disc bulge all contribute to severe central spinal stenosis." (Tr. 141). This report was followed by an MRI of plaintiff's lumbar spine. In the radiological report, dated March 25, 1999, the doctor made a very similar set of assessments, including severe spinal stenosis, inflammation of the lower plate of the vertebrae at L-2, L-3 and the upper plate of L-4 and "degenerative changes in the facet joints" at L2-3 and L3-4. (Tr. 136).

Plaintiff continued to see Dr. Katzeff with some frequency in 1999 and subsequently for his back and neck pain and for other conditions. For example, on April 28, 1999, she noted severe spasms in his right thigh radiating up his leg. She diagnosed spinal stenosis and prescribed Celebrex. (Tr. 119). On October 22, 1999, she added a prescription for Elavil. (Tr. 114). On July 28, 2000, she referred him for chiropractic treatment, as he reported that only such treatment and massages seemed to help. (Tr. 111).

As a result of continuing problems with neck pain (e.g. Tr. 110), plaintiff underwent a scan on November 17, 2000. It was reported to show indications of degenerative disk disease at C5-6. (Tr. 96). A follow-up MRI of the cervical spine on March 1, 2001 confirmed the presence of degenerative disk disease, which was particularly marked at C5-6 and present to a lesser extent at C7-T1. (Tr. 95). Echoing the December 2, 1998 cervical spine MRI report, the radiologist noted a disk bulge with a small herniation at C5-6, which was partly covered by an osteophyte formation; this both deformed the anterior portion of the sac and impinged on the left nerve root. Deformation of the sac was also noted at C7-T1. (Id.).

Given these findings and Dr. Cherico's complaints, Dr. Katzeff referred him for a neurosurgical consult, which occurred in April 2001. (Tr. 93-94). The consultant, Dr. Kamran Tabaddor, reported plaintiff's prior history of lumbar disk herniation with radiating pain, his efforts at treatment without success, including acupuncture and chipractic treatment. According to Dr. Tabaddor's report, the cervical pain radiating to his arm and hand was of more recent vintage, starting about two months prior. (Tr. 93). The report alluded to MRI findings of disk herniation at C5-6 and C7-T1, a Schmorl's node at L2-L3 extending into the vertebral body and degenerative changes at L3-4, particularly at L3. On examination, Dr. Tabbador found no evidence of radiculopathy or myelopathy. He recommended increasing the Elavil dosage to 25 mg. and resort to further pain management, since plaintiff might benefit from steroid injections. (Tr. 94).

Because plaintiff's administrative proceedings continued for more than a decade, the record contains treatment records from Dr. Katzeff that extend well past the theorized onset date of December 2, 1998 and indeed well past 2001, ending July 31, 2006. (Tr. 319-77, 507-12). They add little new, and confirm that plaintiff continued to complain of severe back pain radiating to the legs throughout this period -- diagnosed still as spinal stenosis and severe cervical spine disk disease -- for which he took a variety of pain medications, including an increased dose of Elavil. (E.g., Tr. 324 (Apr. 2, 2004), Tr. 327 (July 29, 2004) (also noting obesity), Tr. 333 (Aug. 17, 2004), Tr. 338 (neurological consult by Dr. Mark Weigle who diagnosed chronic cervicalgia with cervical herniated pulposus and lumbar stenosis), Tr. 351-52 (obesity noted), Tr. 375 (May 16, 2006)).

On May 24, 2006, Dr. Katzeff completed a "Multiple Impairment Questionnaire", apparently in connection with plaintiff's then- pending disability benefits application. (Tr. 380-87)⁷. In her responses, she noted that she had been treating plaintiff every one to three months since 1997, and listed as diagnoses "multilevel spinal stenosis," of the lumbar spine, "severe cervical spinal stenosis" and "cervical spine disk disease." Her prognosis was listed as "fair-poor". (Tr. 380). Dr. Katzeff reported that plaintiff's symptoms and functional limitations were consistent with his physical impairments (Tr. 381), that his pain was ongoing and reached as high as an eight on a scale of zero to ten, and that she had been unable to completely relieve the pain. (Tr. 382). As for various measures of plaintiff's physical capacities, the doctor did not address his ability to sit or stand (Tr. 382), but found that he could lift and carry up to five pounds frequently though he could not lift or carry any heavier weights, and that he had "significant limitations" in "repetitive reaching, handling, fingering or lifting". (Tr. 382-83). She further found that he had marked limitations in grasping, turning and twisting objects and using his arms for reaching, and that he had moderate limitations in using his hands and fingers for fine manipulations. (Tr. 383-84). In addition, Dr. Katzeff opined that placing plaintiff in a "competitive work environment" would probably exacerbate his symptoms, that his condition limited his ability to keep his neck in a steady position, that Dr. Cherico was not a malingerer, that he was capable of tolerating "moderate stress," but that in a work environment he would have to take brief breaks about every fifteen minutes, that he was likely to have both good and bad days, and that he would probably have to be absent from work more than three times a month. (Tr. 385-86). As for other limitations, the doctor listed the following as being precluded: pushing, pulling, kneeling, bending, and stooping. In answer to the question "what is the earliest date that the description of symptoms and limitations in this questionnaire apply?", she placed a word that is largely illegible but could be "now". (Tr. 386).

7 We infer that the form was designed by plaintiff's counsel for use by his client's treating doctors.

Dr. Katzeff also supplied a brief narrative report for submission to the SSA on April 9, 2010. In that report, she clarified the noted ambiguity in her 2006 questionnaire response, stating that she had been treating Dr. Cherico since 1997, that from the outset he had been diagnosed with disk disease and spinal stenosis and that he had been disabled by those two conditions "for as long as he has been under my care." (Tr. 736).

In addition, on November 2, 2010, Dr. Katzeff provided a further, more specific, if brief report, summarizing her findings as to plaintiff's residual functional capacities, essentially repeating the details of her prior responses to the RFC questionnaire submitted by plaintiff's counsel. In this new document, after repeating her diagnoses of "multilevel spinal stenosis" in the lumbar spine, "severe cervical spinal stenosis" and disk disease in the cervical spine, she found that plaintiff could lift and carry up to five pounds frequently, but had "significant limitations" in performing activities that involved "repetitive reaching, handling, fingering or lifting" and that he was "essentially precluded" from reaching or grasping with both hands and from pushing, pulling, kneeling, bending, or stooping. She also reiterated that Dr. Cherico's condition made it difficult or impossible for him to "keep his neck in a constant position" and that in a work environment he would require breaks every fifteen minutes. (Tr. 918).

3. Examining Consultants' Reports

During the course of plaintiff's extended administrative proceedings, SSA employed several consultants to opine on his medical status. Some of these doctors had examined plaintiff and others had simply reviewed some medical records.

(a) Dr. Bagner

Of note, plaintiff was seen in July 1997 by a Dr. Ronald Bagner, who examined his back and spine. Dr. Bagner, whose credentials are not identified in the record⁸, observed that plaintiff ambulated without assistance of a cane or other device, got on and off the examining table without difficulty, sat without apparent discomfort, and undressed without assistance. (Tr. 845). The doctor found normal flexion, extension, lateral flexion, and lateral rotation in the cervical spine. The relevant reflexes were 1+ bilaterally, and he detected no motor abnormalities or atrophy in the arms and shoulders. (Tr. 844). As for the lumbar spine, the doctor found some limitations of range of movement. He mentioned flexion of 90 degrees, extension to ten degrees, and lateral flexion of 20 degrees both to the right and to the left. (TR. 845). Straight-leg raising caused pain at 70 degrees on the left, both lying and sitting. Straight-leg raising was positive at 50 degrees on the right. Knee and ankle reflexes were 1+ bilaterally. He observed no muscle atrophy in the legs and no motor abnormalities in the lower extremities either. He did, however, cite "a patchy decrease in sensation" on the pinprick test in the right leg. (Tr. 845). He otherwise found normal conditions in the hips, knees and ankles. (Id.).

8 An internet search unearthed listings for a Dr. Ronald Bagner, identified as a general surgeon, who does not mention spinal or back surgery as one of his specialties. See Dr. Ronald J. Bagner, MD, HealthGrades (July 31, 2014, 10:30 AM), http://www.healthgrades.com/physician/dr-ronald-bagner-2mpj8.

Based on these observations, the doctor provided an impression of lumbar radiculopathy. He did not venture any assessment of the functional limitations that these conditions imposed on Dr. Cherico.

(b). Dr. Weiss

In 1999, plaintiff was apparently examined by a Dr. Louis Weiss, who supplied a written assessment to SSA. Dr. Weiss, whose specialty, if any, is not reflected in the record⁹, noted plaintiff's reported symptoms of chronic back pain and a recent increase in that pain as well as a recently indicated strep infection in the disk space. (Tr. 891).¹⁰ Dr. Weiss found a decreased range of motion in the back, although he was not more specific as to his findings in that respect. (Tr. 892). As for plaintiff's residual physical capacities, Dr. Weiss opined that plaintiff was limited to occasionally lifting and carrying up to twenty pounds, that he could stand or walk up to eight hours each day, and that he had no limitations on sitting, pushing, and pulling or any other physical activity. (Tr. 893-94).

9 At one point in plaintiff's testimony he was asked by the ALJ about a Dr. Weiss, who we assume is the same Dr. Louis Weiss, and plaintiff testified that he had been seen on one occasion by this physician because of suspicion of a spinal infection, and that Dr. Weiss was an infectious and tropical disease specialist. (Tr. 956).

10 That Dr. Weiss actually examined plaintiff, as opposed to simply reviewing medical records, is indicated by ALJ Katz in his first decision, although that fact is not apparent from Dr. Weiss's report itself. (Tr. 248-49).

4. SSA Non-Examining Consultants

(a) Dr. Wells

On July 27, 1997 -- more than a year before plaintiff's alleged onset date of December 2, 1998 -- a Dr. W. H. Wells completed a residual functional capacity questionnaire concerning plaintiff, apparently based on his review of unidentified medical records in the file. (Tr. 846-53). Dr. Wells, whose specialty, if any, is unspecified, found that plaintiff could occasionally lift and carry up to 50 pounds, could frequently lift and carry up to 25 pounds, could stand or walk or sit up to six hours in an eight-hour day, had no limitations on pushing or pulling, had no postural limitations (identified as climbing, balancing, stooping, kneeling, crouching, or crawling) and had no manipulative or environmental limitations. (Tr. 847-50). In response to a question asking why the treating doctors' assessments -- which conflicted with his -- were not supported by the evidence, Dr. Wells penned a single sentence which is illegible. (Tr. 852).

(b) Dr. Abeles

Dr. Ernest Abeles testified as a non-examining physician at plaintiff's second evidentiary hearing, in September 2006, and opined that plaintiff was capable of light work. (Tr. 967-71). We need not outline that testimony since the Appeals Council subsequently deemed him disqualified as an SSA expert, apparently as a result of sanctions imposed on him by the New York Board for Professional Medical Conduct. (Tr. 671-72); see http://www.healthgrades.com/physician/dr-ernest-abeles-y6xd6/background (referring to revocation of California license based on New York Board sanction and findings of poor patient treatment).

(C) Dr. Axline

At the third hearing, the ALJ heard testimony by a Dr. John Axline, an orthopedic surgeon who had reviewed what appeared to be portions of plaintiff's medical file. (Tr. 987-1043). In offering his testimony, which was by telephone, he stated that he had been asked to review the file only for the period of December 1998 (Tr. 990), although he had noted items dating from as early as June 22, 1997 to as late as March 24, 2006. (Tr. 992). It also bears mention that the extent of the records before Dr. Axline are in some question since, when asked about whether an April 6, 1998 evaluation of plaintiff was by a treating or consulting doctor, he stated that "I don't have the old files, so I can't look at it myself." (Tr. 1037).

After an extended, if somewhat confusing, summary by Dr. Axline of what test results and treatment notes he had reviewed, he testified that, in his view, the record did not show any findings of neurological deficits during the relevant period and did not demonstrate any condition that met or exceeded the listing requirements of the SSA regulations for per se disability. (Tr. 992-1002, 1004-05). He then opined that plaintiff suffered from congenital spinal stenosis in the lumbar spine, and exhibited a Schmorls node, which he described as amounting to a disk impinging on bone rather than on a nerve. (Tr. 1002-04).

Dr. Axline acknowledged that plaintiff suffered from lumbar disk disease and that it entailed certain limitations. As for the extent of those limitations, he appeared to say, albeit somewhat indirectly, that plaintiff should be limited to occasionally lifting up to 20 or 25 pounds, although he also referred to a possible limit of ten pounds. (Tr. 1006). As for standing, he indicated that people with this type of condition should limit that activity to one hour at a time and no more that two to three hours of standing in a day, and he indicated that plaintiff could tolerate walking one hour at a time and not more than two hours in an eight-hour day. (Tr. 1006-07). He found no limit on sitting (Tr. 1007), and some modest limitations on bending and stooping. (Tr. 1028-29).

When questioned about the timing of the onset of plaintiff's spinal stenosis, Dr. Axline pointed to the April 10, 1997 MRI. (Tr. 1008-09)(referring to Exhibit 5F). Citing two reports, from October 8, 2004 and May 16, 2006 respectively -- which he characterized as mentioning no neurological deficits and referred to aching joints (but see Tr. 375 (Dr. Katzeff noting "severe spinal stenosis") and Tr. 338-39 (Dr. Weigle noting lumbar stenosis and herniated cervical disc)) -- and stating that Dr. Memoli had never used the term "spinal stenosis" prior to the April 10, 1997 MRI, Dr. Axline opined that at some point after 1997 plaintiff's condition had stabilized "or improved." (Tr. 1009) ("So from '98 to October of '04, it appears that his situation is stable or improved.").

When asked about Dr. Katzeff's detailed findings concerning plaintiff's residual functional capacity ("RFC"), as reflected in her completed questionnaire, Dr. Axline dismissed them with the brief explanation that she had not provided specific bases for her conclusions, and he described her findings, in conclusory terms, as "incomplete, unsupported, or inconsistent with other examinations." (Tr. 1012). He next responded to the ALJ's inquiry about Dr. Memoli's findings, as reflected in one of his narrative reports (referring to Exhibits 66F and 17F), which the ALJ read to Dr. Axline over the phone. (Tr. 1014-18).¹¹ Asked to respond to Dr. Memoli's findings, Dr. Axline launched into a vague, if extended, peroration, in which he made reference to a 2004 examination that had found no neurological shortfalls (Tr. 1022), opined that Dr. Memoli's report seemed to be "kind of worker's comp oriented" instead of "oriented towards showing the symptoms of indications as far as surgery", and speculated that plaintiff's straight-leg raising limitations could conceivably be attributable to "hamstring tightness". (Id.).¹² Although he conceded that the MRIs showed lumbar disk herniation, and that Dr. Memoli's diagnosis was supported by concrete evidence, he seemed to quarrel with Dr. Memoli's reference to plaintiff's inability to work and his findings as to functional limitations. (Tr. 1023). In explanation, he asserted that under SSA regulations the treating doctor's finding of disability was irrelevant. (Tr. 1023). As for Dr. Memoli's RFC findings, he stated (incorrectly) that those findings "are not confirmed by any other examiner" (Tr. 1024), and he criticized Dr. Memoli because "he does not give the basis of how far he can walk versus what [INAUDIBLE] can only lift or walk so far, one block. And push/pull - we have no - we have no impairment of the upper extremity function documented here. Symptoms of pain in the neck -- that's subjective, not objective." (Tr. 1024).

11 The consultant had access only to Dr. Memoli's 2001 narrative report, which did not include a report of his examination of the plaintiff in September 2003. In contrast, the ALJ had access -- as do we -- to the 2006 version of the report, which did include this addition. (Tr. 619). To remedy this omission, the ALJ also read that added segment to Dr. Axline during the hearing. (Tr. 1020-21).

12 Dr. Axline did not cite any evidence in the treatment records, nor have we been able to find any, that suggests that Dr. Cherico suffers from chronic hamstring tightness. We note also that the plaintiff was repeatedly found to have positive findings on his straight-leg raising tests. (See, e.g., Tr. 205, 217, 618, 618A, 843).

On cross-examination about his dismissal of plaintiff's cervical complaints (see also Tr. 1023)("Well, the cervical disc herniation - we didn't comment on that, because that's not an issue here really."), Dr. Axline retreated, saying his prior dismissive references concerned only whether the cervical problem -- which he conceded was shown by an MRI -- was a per se disabling listed condition. (Tr. 1025). Indeed, he then admitted that he had not focused on the cervical spine in reviewing whatever record he had because he had been told to focus on a one-month period in or about December 1998. (Tr. 1026). He then quickly reviewed his notes while on the phone and said that the examinations in the record had shown that the degenerative disk disease in the cervical spine was a "severe" condition under the regulations (Tr. 1027-28), but that there was no indication of spinal stenosis there and no neurological impact. (Tr. 1028).¹³

13 Dr. Axline did not address the December 2, 1998 MRI that showed, inter alia, an osteophyte formation that touched the cord and reached the C6 left nerve root, as well as marked degenerative disk disease at C5-6 with "chronic" central and bilateral disk herniation. (Tr. 150).

Dr. Axline went on to say, in substance, that in offering his opinion on plaintiff's RFC, he was ignoring all subjective symptoms, since "subjective symptoms can be spurious" (Tr. 1031), and that he also disregarded plaintiff's report of specific objective phenomena such as his leg repeatedly buckling, since plaintiff might be fabricating those events. (Tr. 1035-36). He also asserted that he would not expect the various pain medications that plaintiff had been taking would have any long-term side effects, such a drowsiness or fogginess. (Tr. 1032-34). He also stated that he had not thought that plaintiff's increased incidence of leg collapses had any significance because "that's a symptom, it's not a finding." (Tr. 1035-36).

On examination by plaintiff's counsel, she noted that, contrary to Dr. Axline's assertion that no other source agreed with Memoli on the RFC evaluation, Dr. Katzeff had done so. (Tr. 1038-39). In response, Dr. Axline asserted that Dr. Katzeff's views should be dismissed because she would order scans or other tests when plaintiff complained of pain and "the study would be pretty -- basically pretty normal." He also asserted that since Dr. Katzeff was an internist, "she does not have the credentials to make that diagnosis." (Tr. 1039). In further testimony, though, he seemed to criticize her for diagnosing severe spinal stenosis because she was relying on imaging reports that she had ordered rather than "on her personal examinations". (Tr. 1040-41).¹⁴

14 Dr. Axline did not explain how a physician could diagnose spinal stenosis without a scan.

Nonetheless, Dr. Axline did concede that Dr. Memoli, as plaintiff's long-term treating orthopedist, was in a better position "to understand [the] conditions and opine as to potential limitations than [he] might be as someone who has only had an opportunity to review the file and comments by other doctors." (Tr. 1041). He was not asked to similarly compare his ability to assess plaintiff's condition with that of Dr. Katzeff.

5. The Vocational Expert's Testimony

To assist the ALJ, a vocational expert ("VE"), Mr. Donald Slive, also testified at the hearing. (Tr. 1066-72). The VE -- who had also previously testified at the second hearing before ALJ Katz (Tr. 972-79) -- opined on this occasion that plaintiff's two prior job functions, as dean and professor, were both sedentary. (Tr. 1068).¹⁵ He listed as potentially transferable skills "[c]ompiling, gathering, classifying information; instructing, influencing, explaining, teaching, and demonstrating." (Tr. 1068-69).

15 The VE's characterization of teaching as sedentary seemingly contradicted his prior testimony at the second hearing, at which he had described the teaching function as involving light work. (Tr. 973-74).

The ALJ then propounded a series of hypothetical questions, all premised on someone with plaintiff's background and experience. The first was premised on the person having an RFC to walk and/or stand for two hours in an eight-hour day, to sit for up to six hours, to lift and carry up to ten pounds occasionally and the same weight frequently, and to stoop and bend occasionally. (Tr. 1069).¹⁶ Asked if such a person could do Dr. Cherico's type of prior work as performed by him or as generally performed in the national economy, the VE answered in the affirmative. (Id.). The ALJ next asked the same question, but added a limitation that the person could only occasionally engage in fine manipulation. When it was clarified, at the VE's request, that plaintiff was not skilled in keyboarding, the VE said that he could not find equivalent jobs as performed in the national economy but that such a person could do Dr. Cherico's type of work as he had previously performed it. (Tr. 1069-70).

16 Since the ALJ was apparently adopting Dr. Axline's estimate of RFC it is possible that in his first hypothetical he misspoke in saying the person could carry ten pounds both frequently and occasionally, and intended to ask about carrying up to twenty pounds occasionally. We must assume, however, that what he asked the VE is accurately reflected in the transcript.

The ALJ's last hypothetical question invoked the same physical limitations, but also added that the person could concentrate for only two hours out of an eight-hour work day. (Tr. 1070). This time the VE said that he could not perform his prior work in any form and that he was unaware of any other jobs in the national economy that such a person could perform. (Tr. 1070).

In follow-up questioning by plaintiff's counsel based on assumptions that the person could sit, stand and walk for less than an hour at a time and must take periodic breaks of up to ten or fifteen minutes, and had a lifting and carrying capacity of no more than ten pounds, with only occasional stooping and bending, the VE testified that no jobs would be available. When counsel added that the person would be absent from work at least two times a month, the VE came to the same conclusion. (Tr. 1072-72).

6. The ALJ's Decision (in context)

Before summarizing the substance of ALJ Gonzalez's decision, we briefly note the preceding history that led to his decision, since he was supposed to be responding to prior rulings of the Appeals Council, which had twice remanded plaintiff's application for further hearings.

(a) The First ALJ Decision and Appeal

As noted, ALJ Katz initially denied Dr. Cherico's request for benefits in 2002. (Tr. 246-52). In doing so, he acknowledged that plaintiff's spinal impairments were severe within the meaning of the SSA regulations (Tr. 248), but found that they did not meet the requirements for per se disability embodied in the so-called listing regulations.(Id.). Expressing scepticism as to plaintiff's testimony about both pain and the side effects of his medications, the ALJ emphasized that plaintiff had failed to submit, post-hearing, a set of pharmacy records to substantiate his allegations as to the type and frequency of medication ingestion. (Tr. 249-50). The ALJ also appeared to read the records and reports of Dr. Memoli as not supporting a claim of disabling back problems (Tr. 250)(Dr. Memoli "only precluded the claimant from sitting or standing for 'prolonged periods of time"), and further cited the 1999 findings of Dr. Weiss (Tr. 248-49), indicating that plaintiff could lift and carry up to twenty pounds and could sit or stand for up to eight hours in a work day, as well the May 2001 conclusions of Dr. Tabaddor, who -- according to the ALJ -- had found "no evidence of nerve or cord compression". (Tr. 249). As for Dr. Memoli's 2001 narrative, the ALJ seemed to assume that its description of serious spinal problems was accurate, but that it pertained to plaintiff's condition in 2001 and not when he was insured. (Tr. 249).

Finding plaintiff capable of sitting for as long as six hours, standing and walking for two hours, and lifting or carrying up to ten pounds, the ALJ concluded that he had the capacity to perform a full range of sedentary work. (Tr. 250). Since his prior work as a dean was sedentary in nature, the ALJ concluded that he was not disabled. (Tr. 250-52).¹⁷

17 The ALJ did observe that plaintiff's teaching responsibilities involved light work, as defined by the SSA regulations. (Tr. 250).

On appeal, the Appeals Council, having noted various informational gaps in the record, remanded for further consideration of a number of issues. (Tr. 290-94). Among these, the Council directed that ALJ Katz clarify the onset date for the plaintiff's claimed disability, obtain a complete list of plaintiff's medications prior to January 1, 1999 as well as physical therapy and other medical records, recontact Dr. Memoli to clarify aspects of his findings, comply with SSA regulations governing the assessment of plaintiff's impairments, obtain ("if warranted") medical experts' assessments of plaintiff's impairments and work capacities, provide a more detailed assessment of plaintiff's subjective complaints and credibility, provide a more detailed RFC assessment in compliance with SSA regulations (including the treating-physician rule), obtain more information on plaintiff's work history, and (if needed) obtain the assessment of a vocational expert. (Tr. 292-94).

(b) The Second ALJ Decision and Appeal

At the very brief second hearing before ALJ Katz, in 2006, the principal testimony was by SSA consultant Dr. Abeles, who -- as noted -- has since been stricken from the list of SSA consultants, and who opined that the plaintiff's spinal dysfunctions would impact lifting and carrying capacities¹⁸ but not the ability to sit or stand. (Tr. 970-71). In addition, the ALJ heard from Mr. Slive, the VE, who described plaintiff's job as a dean as sedentary and his teaching role as involving light work. (Tr. 973-74). Dr. Cherico also made a brief unsworn statement about his original injury in 1986 and his then-current condition. (Tr. 980-82).

18 Dr. Abeles opined that plaintiff could lift up to twenty pounds occasionally and up to ten pounds frequently and that he could perform light as well as sedentary work. (Tr. 971).

ALJ Katz issued a decision in 2006, again finding plaintiff not to be disabled. Premised on the assumption that the onset date was December 2, 1998 -- coincident with a series of MRI scans -- the ALJ's analysis closely resembled his prior decision. He cited the March 1999 RFC estimates of Dr. Weiss, which he described as the only RFC findings near the time of plaintiff's insurance-coverage expiration. Although he noted a very striking limitation in an April 1999 straight-leg raise test -- reflecting major regression from a September 1998 test -- he dismissed that result because he could not be sure that the deterioration had occurred by December 31, 1998. (Tr. 629-30). Similarly, he rejected the significance of Dr. Memoli's 2001 narrative, in which the doctor provided far more stringent RFC limitations than did Dr. Weiss, because that report was supposedly too distant in time from the December 31, 1998 cutoff to be of significance, a conclusion apparently based on the assumption that Dr. Memoli was not providing a retrospective assessment. (Tr. 630-31). As for Dr. Memoli's earlier findings of disability, the ALJ rejected them because those findings were said to have been for workers-compensation purposes, which involves a different standard of disability, and because at one point in 1998 he used the term "partial disability". (Tr. 631). The ALJ also discounted the credibility of plaintiff's testimony about his pain, given his possible proclivity for exaggeration. (Tr. 632). The ALJ then adopted the RFC opinions proffered by Dr. Abeles, finding him to be a credible witness and his assessment to be "consistent with the medical record". (Tr. 633). Finding that plaintiff could perform both of his prior jobs -- the light work of a professor and the sedentary work of a dean -- the ALJ concluded that he was not disabled. (Tr. 633-34).

As noted, on review, the Appeals Council once again remanded. (Tr. 670-73). In doing so, it concluded that the ALJ had failed to clarify the onset date, a particular concern because (1) plaintiff had testified about an auto accident in 1996 that had worsened his condition and (2) a 1997 MRI showed severe spinal stenosis at L3-4, mild stenosis at L4-5 and L2-3, and facet hypertrophy at all lumbar levels. (Tr. 670-71). The Council further found that the ALJ had not properly applied the treating-physician rule, which governs the assessment of medical source findings. In particular, it noted that Dr. Memoli had found severe problems with the lumbar spine in 1997, and yet the ALJ had disregarded his 2001 narrative on the basis that it was not retrospective, even though it was not clear that this was the case. Hence the Council deemed recontact with Dr. Memoli to be warranted to clarify his findings. It also found the ALJ's decision to be flawed because of his dismissal of the opinions of Dr. Katzeff, who was a treating source and had offered specific opinions on plaintiff's capacities. It further noted that any ambiguities as to the retrospective nature of her post-onset findings would need to be clarified on remand. (Tr. 671). The Council then noted that Dr. Abeles's testimony could not be relied upon since he had been struck from the list of eligible SSA consultants, and that a new medical expert should be retained. (Tr. 671-72). In addition, it instructed the new ALJ to provide a more detailed function-by-function assessment of the plaintiff's limitations, to give proper consideration to Dr. Cherico's testimony about subjective symptoms, and to use a vocational expert to identify transferable skills and specific alternative jobs that plaintiff might perform. (Tr. 673-74).

(c) The Third ALJ Decision

In the wake of plaintiff's third hearing, ALJ Gonzalez rendered his decision, which again found Dr. Cherico not to have been disabled. In that decision, the ALJ characterized the alleged onset date as April 10, 1997, presumably based on the MRI that showed plaintiff to be suffering, inter alia, from severe spinal stenosis in a portion of the lumbar spine. (Tr. 22). He further found severe impairments, under the SSA regulations, in the form of lumbar spine stenosis and degenerative disk disease in the cervical spine. (Tr. 22). However, based on the testimony of Dr. Axline, he concluded that the cited impairments did not meet or exceed the relevant criteria in the so-called listing regulations for purposes of finding the plaintiff per se disabled. (Tr. 22-23)(citing 20 C.F.R. Pt. 404, subpt. P, App. 1, listings 1.04(A) & ^©).

The ALJ next concluded that during the period ending in December 1998 plaintiff was capable of performing "a wide range of exertionally sedentary work." (Tr. 23). In reaching this conclusion, the ALJ found that plaintiff's impairments "could reasonably be expected to cause the alleged symptoms", but that Dr. Cherico's description of the extent of the pain and its effect was not credible. To reach that conclusion, the ALJ first addressed Dr. Memoli's findings, both in his 2001 narrative report and in the 1997 report that he provided to SSA in a telephone interview. (Tr. 23-24).¹⁹ Although Dr. Memoli had repeatedly found plaintiff to be unable to perform work-related activities and had cited, in explanation, the results of various scans that found severe spinal stenosis and other problems in the lumbar and cervical spine in 1997 and later, the ALJ seemed to dismiss those findings because "the report of these studies has not been made available to the undersigned for review." (Tr. 24).²⁰ He also seemed to criticize Dr. Memoli because the doctor's treatment notes over an extended period of time, while reiterating that plaintiff's condition and complaints remained essentially unchanged, contained "the same rather vague statements of Dr. Memoli indicating unchanged complaints and findings but generally either listing no specific findings or restating only that the claimant had a restricted range of motion in the lumbosacral region of the spine with tenderness, spasm and positive straight leg raising at 75 degrees." (Tr. 24). The ALJ also noted that on one occasion, on March 4, 1999, Dr. Memoli had listed claimant as having "an overall marked, partial disability" for Workers Compensation purposes. (Tr. 24, 26). Finally, he criticized Dr. Memoli because he "has not set forth any specific limitations experienced by the claimant other than non-specific statements to the effect that the claimant cannot push, pull, lift, carry, sit, stand or walk without increasing his pain." (Tr. 26). From these comments, it is apparent that the ALJ had never contacted Dr. Memoli for clarification or follow-up on any of his findings.

19 The ALJ erroneously stated that Dr. Memoli first examined plaintiff on July 25, 1998 (Tr. 23) -- possibly a typographical error, since the first examination took place on July 25, 1988. (Tr. 204).

20 In fact, the reports of the 1997 and 1998 studies are in the record. (Tr. 169, 148-52).

The ALJ also dismissed the findings of Dr. Katzeff, including those in her detailed 2006 questionnaire answers, and the significance of the December 2, 1998 MRI studies that she ordered. (Tr. 24-25). As for those tests, the ALJ simply observed that those scan reports had not mentioned spinal stenosis. (Tr. 24).²¹ In rejecting Dr. Katzeff's repeated physical findings and her RFC summary, the ALJ's explanation was that the doctor had relied on the diagnoses of spinal stenosis and degenerative disk disease found in the radiological reports but had "made no mention of any positive clinical findings... on physical examination and failed to refer to any specific diagnostic tests." (Tr. 25). The ALJ also observed that Dr. Katzeff's opinion that plaintiff was totally disabled, just like the same opinion of Dr. Memoli, was not entitled to any weight, because that is a finding "reserved exclusively to the [SSA]". (Tr. 26; but see id. (ALJ states that finding of disability is entitled to "little weight")).

21 In making this observation the ALJ ignored the fact that repeated scans -- from April 10, 1997 and March 25, 1999 -- had reported "severe spinal stenosis" at L3-4 (Tr. 169, 136); that the December 2, 1998 MRI report had cited a bulging disk with "severe compromise" of the thecal sac and hypertrophy of the ligamentum flavum (thus suggesting the presence of spinal stenosis, see, e.g., Justin F. Fraser et al., Pathogenesis, Presentation, and Treatment of Lumbar Spinal Stenosis Associated With Coronal or Sagittal Spinal Deformities, 14 Neurosurg. Focus 1 (2003)), and that a later report, from February 19, 1999, had also described "severe central spinal stenosis" apparently based on the December 2 images. (Tr. 141).

In rejecting the treating doctors' repeated and largely consistent findings, the ALJ focused on (a) the July 7, 1997 report of the consultant Dr. Bagner, who found a limited range of motion in the lumbar spine and "patchy" reduced sensation in one leg, but also "found no evidence of atrophy or of any motor abnormality", and (b) the telephonic testimony of Dr. Axline. (Tr. 25-27). In invoking Dr. Axline's testimony, the ALJ (1) praised the doctor as an orthopedic specialist who was "well-versed" in the SSA's disability programs, (2) noted Dr. Axline's invocation of Dr. Bagner's findings, (3) referred in general terms to Dr. Axline having identified exhibits (unspecified by the ALJ) that assertedly contradicted plaintiff's claims, and (4) cited Dr. Axline's assertion that plaintiff himself had reported subjective symptoms "not supported by objective clinical findings." (Tr. 25-26). The ALJ also invoked the findings of a non-examining SSA consultant of uncertain qualifications -- Dr. Wells -- who, without addressing the treatment records or providing any other explanation, had found that plaintiff could lift and carry between 25 and 50 pounds, and could sit, stand and walk without limitations. (Tr. 846-53).

In rejecting the findings of Drs. Memoli and Katzeff, the ALJ further observed that plaintiff had testified to having received a bequest from his father, apparently some decades before. The ALJ then speculated that this good fortune "may have significantly diminished his desire to work." (Tr. 26; see Tr. 981). The ALJ did not mention plaintiff's further testimony that the inherited funds had been entirely dissipated by living expenses over the decades because he had been unable to work full-time since 1986. (See Tr. 26). The ALJ also noted that none of the doctors had mentioned plaintiff using a cane, although he had testified that he had used one for decades. (Tr. 26).²²

22 The ALJ did not mention that plaintiff had testified that he tries to avoid using the cane. (Tr. 949).

Having disposed of the treating doctors' findings and conclusions and having endorsed Dr. Axline as a reliable source of opinion, the ALJ largely adopted the Axline RFC estimates (Tr. 26 (giving his testimony "significant weight"), finding that plaintiff could perform "exertionally sedentary work" prior to the expiration of his insurance coverage on December 31, 1998. (Tr. 26). Thus, the ALJ found that plaintiff could sit for up to six hours, could stand and walk occasionally, could lift up to ten pounds, and could occasionally stoop and bend. (Tr. 26-27). Based on these findings and his conclusion that plaintiff could perform "a wide range of exertionally sedentary activity" (Tr. 23), the ALJ concluded that Dr. Cherico could perform his prior work both as a professor and as a dean since both -- according to the VE -- required only sedentary exertion.²³ Accordingly he found plaintiff not disabled during the relevant period. (Tr. 27).

23 The ALJ did not seek to question or reconcile the inconsistency between the VE's characterization of teaching as involving light exertion when he testified in 2006 and his treating it as sedentary when he testified in 2010.

(d). The Appellate Record and Appeals Council Decision

On Dr. Cherico's 2011 appeal, he supplemented the record with a recent assessment by an orthopedic surgeon, Dr. Donald Goldman. (Tr. 920-26). Dr. Goldman first reported on his November 2010 examination of plaintiff, which yielded very substantial limitations of range of motion in the cervical spine²⁴ with generalized paresthesias down both arms. (Tr. 921). The doctor made similar findings in the lumbar spine, recording that interspinous motion was limited to 50 degrees with radiating pain, that lateral bending to the right was limited to 20 degrees with pain, that lateral bending to the left was at 35 degrees, that right straight leg raising on both lying and sitting was positive at 70 to 75 degrees, with positive Lasegue, and that on the left straight-leg raising was positive at 80 to 90 degrees. (Tr. 921). He also found no reflexes of either knee or ankle jerk and some atrophy of the right calf. (Tr. 921).

24 Extension was limited to 25 to 30 degrees with pain, right rotation to 40 degrees with spasms, right and left lateral bending to 35 degrees, and left rotation to 25 to 30 degrees with pain. (Tr. 921).

Of more pertinence, Dr. Goldman reviewed the principal medical reports relating to plaintiff's treatment and the assessments of SSA consultants. He cited in particular the MRI findings in both 1997 and 1998 (corroborated by EMG studies in 1997) of severe spinal stenosis (at L3-4) and mild stenosis (at L2-3 and L4-5), as well as a disk herniation at L2-3 in December 1998. He also noted the presence of paresthesias and sensory changes observed in 1998 (as well as in 1997). (Tr. 923).

As for the consultants, Dr. Goldman first took strong issue with certain of Dr. Bagner's July 7, 1997 findings, noting that his area of specialization was unclear. Citing Dr. Bagner's observation of patchy diminished sensation in the thigh, which that consultant had suggested was unrelated to neurological issues, Dr. Goldman stated that limitations on sensitivity there relate directly to L3-4, and hence that that finding is consistent with the EMG tests and the MRI-based diagnosis of severe spinal stenosis at that level. (Tr. 923). He then went on to criticize Dr. Bagner for apparently not using the required measuring devices (Tr. 923) (referring to goniometer and tape measure which are required by SSA regulation and professional standards), and failing to specify whether straight leg raising was done sitting or lying down (again a violation of SSA requirements). (Tr. 923).

As for Dr. Axline's testimony, Dr. Goldman criticized his substantial reliance on the improperly derived findings and assessments of Dr. Bagner. (Tr. 924). He also noted that Dr. Axline had ignored the fact that on Dr. Bagner's examination there were no reflexes present, thus precluding a finding as to whether they were normal. (Tr. 924). He further observed that Dr. Bagner had not mentioned a host of required tests -- presumably because he did not conduct them -- and that Dr. Bagner had accordingly not indicated whether there was a positive result for "atrophy, weakness, paresthesias, EHL, [and] Lasegue's test[]." (Tr. 924). Dr. Goldman also quarreled with Dr. Bagner's finding that at the time of his examination the cervical spine was normal. (Tr. 923).

Dr. Goldman concluded by opining that plaintiff was suffering from a permanent disability in the form of a painful restriction of at least 40 percent in cervical spinal motion, severe spinal stenosis at L3-4, a herniated disk at L2-3 and discogenic and facet hypertrophy in the lumbar spine, with painful limitations on range of motion by more than 30 percent, together with "atrophy, weakness, positive tension signs of straight leg raising, Lasegue and EHL in addition to atrophy and weakness in his right leg." (Tr. 925). He noted also that, given the collective impact of these conditions, plaintiff would have difficulty in bending, twisting, crawling, pushing, pulling and stooping. He also estimated that plaintiff could not sit longer than 30 to 35 minutes at a time and could not walk more than two blocks, and that prolonged standing would cause significantly increased pain. Finally, he opined that all of these problems derived from plaintiff's initial injury in 1986. (Tr. 925).

The Appeals Council denied the plaintiff's request for review. In doing so, it took note of plaintiff's additional submission on appeal (notably Dr. Goldman's report), and found, without further explanation, "that this information does not provide a basis for changing the Administrative Law Judge's decision." (Tr. 11-12).

ANALYSIS

Defendant concedes that the ALJ erred in one material respect, by failing to seek supplemental explanations and clarifications from the two principal treating physicians, Drs. Memoli and Katzeff. Based on that concession, she asks the court to remand the case to the SSA for further administrative proceedings. (Def.'s Mem. at 16-18). Plaintiff argues that the ALJ's decision was infected with far more errors than are conceded by defendant, and he further argues that the evidence in the record compels the conclusion that he was disabled during the period of his coverage by disability insurance. Accordingly, he argues that the court should deem him disabled and remand the case to SSA solely for the calculation of the benefits. (Pl.'s Mem. at 23, 25).

I. Standards for Disability Eligibility

To qualify for disability insurance benefits, a claimant must demonstrate that he was disabled as of a date on which he was still insured. See, e.g., Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989)(citing 42 U.S.C. § 423(a)(1)(A)); Fleming v. Astrue, 2010 WL 4554187, *9 (E.D.N.Y. Nov. 2, 2010). For purposes of eligibility for benefits, an applicant is "disabled" within the meaning of the Act if he is unable "'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.'" Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 641-42 (2d Cir. 1983) (quoting 42 U.S.C. § 423(d)(1)(A)).²⁵ The Act requires that the relevant physical or mental impairment be "'of such severity that [plaintiff] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'" Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting 42 U.S.C. § 423(d)(2)(A)). If the claimant can perform substantial gainful work existing in the national economy, it is immaterial, for purposes of the Act, that an opening for such work may not be found in the immediate area where he lives or that a specific job vacancy may not exist. 42 U.S.C. § 423(d)(2)(A).

25 "Substantial gainful activity" is defined as work that "[i]nvolves doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510; see, e.g., Craven v. Apfel, 58 F. Supp. 2d 172, 183 (S.D.N.Y. 1999); Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996).

In assessing a claim of disability, the Commissioner must consider: "(1) objective medical facts; (2) diagnosis or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant's background, age, and experience." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988). The SSA regulations set forth a five-step sequential process under which an ALJ must evaluate disability claims. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920. The Second Circuit has described this sequential process as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work.[²⁶] Finally, if the claimant is unable to

perform his past work, the Secretary then determines whether there is other work which the claimant could perform." The burden of proving disability, encompassing the first four of these steps, is on the claimant. The burden of proving the fifth step is on the Secretary.

Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1998) (emphasis in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d Cir. 1983)); see Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

26 Residual functional capacity ("RFC") is a claimant's maximum remaining ability, despite her limitations, "'to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the residual functional capacity assessment must include a discussion of the individual's abilities on that basis.'" Schultz v. Astrue, 2008 WL 728925, *6 (N.D.N.Y. Mar.18, 2008) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). If a claimant has more than one impairment, all medically determinable impairments must be considered, including those that are not "severe." The assessment must be based on all relevant medical and other evidence, such as physical abilities, mental abilities, and symptomology, including pain and other limitations that could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 404.1545(a)(1)-(3).

Normally, in meeting her burden on this fifth step, the Commissioner may rely on the Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart P, Appendix 2, commonly referred to as "the Grid[s]."²⁷ Zorilla, 915 F. Supp. at 667. However, if a plaintiff suffers from non-exertional limitations,²⁸ exclusive reliance on the Grids is inappropriate. See Butts, 388 F.3d at 383 (citing Rosa, 168 F.3d at 78).

27 "The Grid classifies work into five categories based on the exertional requirements of the different jobs." Zorilla v. Chater, 915 F. Supp. 662, 667 n.2 (S.D.N.Y. 1996). "Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Id. Based on these factors, the SSA uses the Grids to evaluate whether the claimant can engage in any other substantial gainful work that exists in the economy. Id. at 667.

28 "An exertional limitation is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only a claimant's ability to meet the strength demands of jobs (i.e., sitting, standing, walking, lifting, carrying, pushing, and pulling)." Rosa v. Callahan, 168 F.3d 72, 78 n.2 (2d Cir. 1999) (citing Zorilla, 915 F. Supp. at 667 n.3). "'[L]imitations or restrictions which affect [a claimant's] ability to meet the demands of jobs other than the strength demands, that is, demands other than sitting, standing, walking, lifting, carrying, pushing or pulling, are considered non-exertional.'" Samuels v. Barnhart, 2003 WL 21108321, *11 n.14 (S.D.N.Y. May 14, 2003) (quoting 20 C.F.R. § 416.969a(a)); see also 20 C.F.R. § 404.1569a ^©.

II. Standard of Review

When a claimant challenges the SSA's denial of disability insurance benefits, the court may set aside the Commissioner's decision only if it is not supported by substantial evidence or was based on legal error. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive"). Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Matthews v. Leavitt, 452 F.3d 145, 152 n.9 (2d Cir. 2006); Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). The substantial-evidence test applies not only to the Commissioner's factual findings, but also to inferences to be drawn from the facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F. Supp. 2d 208, 214 (S.D.N.Y. 1999). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must consider the whole record, weighing the evidence on both sides of the question. See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams, 859 F.2d at 258.

When carrying out this task, we rely on the principle that it is the duty of the Commissioner, not the courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). While the ALJ need not resolve every conflict in the record, Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981), "the crucial factors in any determination must be set forth with sufficient specificity to enable [a reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).

In addition to considering the sufficiency of the evidence in the record, a reviewing court must consider the ALJ's application of the law to the record before him. Even if the record, as it stands, contains substantial evidence that the plaintiff is not disabled, the SSA decision may not withstand challenge if the ALJ committed legal error. Balsamo, 142 F.3d at 79.

Of particular importance, as disability benefits proceedings are non-adversarial in nature, the ALJ has an affirmative obligation to fully develop the administrative record, even when a claimant is represented by counsel. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (citing Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (internal quotation marks omitted)); see also Butts, 388 F.3d at 386. To this end, the ALJ must make every reasonable effort to help an applicant procure medical reports from his medical sources. 20 C.F.R. §§ 404.1512(d), 416.912(d).

In addition, "[t]he record as a whole must be complete and detailed enough to allow the ALJ to determine claimant's residual functional capacity." Casino-Ortiz v. Astrue, 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007) (citing 20 C.F.R. § 404.1513(e)(1)-(3)). The ALJ must therefore seek additional evidence or clarification when the "report from claimant's medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or [it] does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." Bonet v. Astrue, 2008 WL 4058705, at *18 (S.D.N.Y. Aug. 22, 2008) (original brackets omitted).

The ALJ must also adequately explain his reasoning in making the findings on which his ultimate decision rests, and in doing so he must address all pertinent evidence. See, e.g., Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995); Pacheco v. Barnhart, 2004 WL 1345030, at *4 (E.D.N.Y. June 14, 2004) ("It is self-evident that a determination by the [ALJ] must contain a sufficient explanation of [his] reasoning to permit the reviewing court to judge the adequacy of [his] conclusions."). Courts in this Circuit have long held that an ALJ's "failure to acknowledge relevant evidence or to explain its implicit rejection is plain error." Pagan v. Chater, 923 F. Supp. 547, 556 (S.D.N.Y. 1996).

The Act authorizes a court, when reviewing decisions of the SSA, to order further proceedings. See 42 U.S.C. § 405(g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."). If there are gaps in the administrative record or the ALJ has applied an improper legal standard, the court may remand the case for further development of the evidence or for supplemental findings. Rosa, 168 F.3d at 82-83. Remand is particularly appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). If, however, the reviewing court concludes that an ALJ's determination was not supported by substantial evidence, a remand solely for calculation of benefits may be appropriate. See, e.g., Butts, 388 F.3d at 386.

For reasons that follow, we conclude that the decision of the ALJ, as endorsed by the Appeals Council, cannot withstand scrutiny because of a variety of procedural and substantive errors. We further conclude that the evidence of disability is so substantial as to justify a final ruling that plaintiff was indeed disabled during the relevant period.

III. Assessment of the Record

A. The Error Conceded by the SSA

SSA concedes that ALJ Gonzalez failed in at least one respect in his duty to ensure a full and unambiguous record. As defendant notes, although instructed by the Appeals Council to recontact Drs. Memoli and Katzeff to seek clarification as to the onset of both the disabling conditions that each diagnosed and the limitations in plaintiff's RFC that they described, the ALJ failed to do so. (Def.'s Mem. at 16-18). According to defendant, this failing is sufficient justification by itself for remanding the case for further SSA consideration.²⁹ In making this point, the defendant argues that the state of the current record does not compel a finding that plaintiff was disabled during the period of his insurance coverage, and hence that an outright award of benefits is not justified.

29 Defendant also argues for remand based on the purported failure by the ALJ to clarify the onset date of the plaintiff's allegedly disabling conditions. (Def.'s Mem. at 16).

B. Other ALJ Failings

a. The ALJ Erred in his Application of the Treating Physician Rule.

The treating-physician rule "requires an ALJ to grant special deference to the opinions of a claimant's treating physician." Acosta v. Barnhart, 2003 WL 1877228, at *10 (S.D.N.Y. Apr. 10, 2003); see also Kamerling v. Massanari, 295 F.3d 206, 209 n.9 (2d Cir. 2002); Clark, 143 F.3d at 118. "A 'treating source' is defined as a claimant's 'own physician, psychologist, or other acceptable medical source who provides [claimant], or has provided [claimant], with medical treatment or evaluation, and who has, or has had, an ongoing treatment relationship with [claimant].'" Martinez v. Astrue, 2009 WL 2168732, at *12 n.26 (S.D.N.Y. July 16, 2009) (brackets in original) (citing 20 C.F.R. §§ 404.1502, 416.902). "The Commissioner 'may consider an acceptable medical source who has treated or evaluated [claimant] only a few times or only after long intervals (e.g., twice a year) to be [claimant's] treating source if the nature and frequency of the treatment or evaluation is typical for [claimant's] condition(s).'" Id.

SSA regulations require that the findings of a claimant's treating physician be afforded controlling weight over those of a non-treating physician -- and in particular, a non-examining physician -- when the treating physician's opinion is consistent with substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(1) & (2); see also Schisler v. Sullivan, 3 F.3d 563, 566 (2d Cir. 1993); Johnston v. Colvin, 2014 WL 1304715, *33 (D. Conn. Mar. 31, 2014); Brown v. Comm'r of Soc. Sec., 2014 WL 2739326, *10 (D. Vt. Apr. 18, 2014) (quoting Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir. 1990); accord, e.g., Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013)("ALJs should not rely heavily on the findings of consultative physicians after a single examination"); Giddings v. Astrue, 333 F. App'x 649, 652 (2d Cir. June 26, 2009) ("Generally 'a consulting physician's opinions should be given little weight'")(quoting Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990)). However, "if a treating physician's opinion is either not well supported by medically acceptable clinical and laboratory diagnostic techniques or inconsistent with other substantial evidence in the record, it need not be afforded controlling weight." Valerio v. Comm'r of Soc. Sec., 2009 WL 2424211, at *11 (E.D.N.Y. Aug. 6, 2009) (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).

If the treating physician's opinion is inconsistent with other substantial evidence in the record, the ALJ must then consider four factors when determining the appropriate weight to give that opinion: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Hartnett v. Apfel, 21 F. Supp. 2d 217, 221 (E.D.N.Y. 1998); accord Halloran, 362 F.3d at 32 (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ must articulate "good reasons" for declining to give a treating doctor's opinions controlling weight, as well as "good reasons" for according those opinions whatever weight he assigns to them. 20 C.F.R. § 404.1527(c)(2); see, e.g., Halloran, 362 F.3d at 33; Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); Webster v. Colvin, 2014 WL 183936, *11 (E.D.N.Y. Jan. 14, 2014). An. ALJ must not substitute his "own assessment of the relative merits of the objective evidence and subjective complaints for that of a treating physician." Garcia v. Barnhart, 2003 WL 68040, *7 (S.D.N.Y. Jan. 7, 2003).

In this case, even before we assess whether the findings of Drs. Memoli and Katzeff must control, we note fundamental problems with the ALJ's application of the treating-physician rule. At a minimum, these errors would have to be addressed on remand.

In rejecting the findings of Dr. Memoli, the ALJ referred in brief and conclusory terms to Dr. Axline having pointed to records that contradict Dr. Memoli's findings, but did not cite any of them, much less explain why they necessarily contradict Dr. Memoli's consistent and specific findings. This failure of explanation on perhaps the most crucial issue in the case -- that is, whether the treating doctor's findings are supported by substantial evidence in the form of clinical and other test results -- is indefensible.

Similarly absent from the ALJ's analysis is any acknowledgment that Dr. Memoli's findings as to plaintiff's limitations -- which are found in his two narrative summaries as well as in numerous entries in his many treatment notes -- are supported by a variety of objective tests, in the form of both scans and acceptable techniques of physical examination, including range-of-motion tests, observation of spasms, and assessment of decreased sensation. While an ALJ may discount to some degree the findings of the treating doctor if other information in the record provides substantial evidence justifying that scepticism, the ALJ cannot simply ignore the objective record support for the treater's assessments. In this case the ALJ recites at one point some of the findings supporting the views of Dr. Memoli but never explains why he finds them so insignificant as to disregard the treating orthopedic surgeon's repeated findings of severe physical limitations. Again, this crucial omission would compel a remand.

In addition, although the ALJ gives a hearty endorsement to Dr. Axline's familiarity with SSA practices and standards, he fails to acknowledge, much less address, the obvious fact that Dr. Axline never observed the plaintiff, much less examined him, and that he relied substantially on an orthopedic report of a one-time consultant -- Dr. Bagner -- who seemingly has no expertise in the area of orthopedics. That omission is particularly ironic in view of the fact that Dr. Axline justified his rejection of Dr. Katzeff's reports on the basis that she is not an orthopedic specialist. This omission by the ALJ also would require a remand.

A further problem with the ALJ's use of Dr. Axline's telephonic testimony to override the detailed findings of two treating doctors is that he never clarified which records -- the only source of information for this consultant -- Dr. Axline had actually reviewed. Indeed, apart from reporting that he had prepared only to testify about the events of December 1998, Dr. Axline stated at one point that he lacked access to "old" records, which appeared in context to refer to some records (otherwise unidentified) that dated from 1997 or 1998. (Tr. 1037).³⁰

30 At other points the consultant did refer to some documents from much earlier (Tr. 993, 994, 995), but the record is unclear as to what precisely he had seen.

In addition, the ALJ's reliance on Dr. Axline's conclusions is flawed because the doctor explicitly and repeatedly said that he was ignoring any subjective complaints of plaintiff and any reports that Dr. Cherico made to the treating sources about visible events, such as leg buckling. By adopting this analysis, the ALJ was ignoring the SSA's regulatory requirement that a claimant's credibility be assessed in a systematic way and that his report of subjective symptoms be taken seriously. See 20 C.F.R. § 404.1529; see also pp. 82-90, infra.

The ALJ's invocation of Dr. Axline's assessment also fails because that consultant acknowledged that he had ignored plaintiff's cervical condition. (See Tr. 1023-24). Although, when challenged, he appeared to retract that admission in part (claiming that he had only meant to refer to his listings assessment), he plainly ignored the import of the December 2, 1998 cervical MRI report, which indicated a potential source of serious dysfunction as a result of impingement on the nerve root. (Tr. 1025-26).

The ALJ's rejection of Dr. Memoli's findings is also problematic on other grounds. He asserted in generic terms that Dr. Memoli's findings are repetitive and often consist of "vague statements". (Tr. 24). He also stated that the April 1997 diagnostic study cited by Dr. Memoli "has not been made available to the undersigned for review." (Tr. 24). Both of these assertions are false. The problem with the first criticism, which appears to refer only to Dr. Memoli's treatment notes, is that it entirely ignores the fact that in a number of instances Dr. Memoli provided specific findings, particularly with regard to range-of-motion tests, observable leg spasms and diminished sensitivity, and offered the detailed results of radiological studies, and in others the doctor simply observed, based on physical examination as well as the patient's reports, that the plaintiff's condition was unchanged. (E.g. Tr. 214, 216, 217, 218, 219, 220). That format is entirely consistent with his narrative reports -- which the ALJ conclusorily rejected -- and presumably reflects the fact that the test results were not changing from visit to visit and that plaintiff's condition was largely stable at a level of pain and physical limitation that is consistently described over a number of years. Moreover, if the ALJ had any doubts on that score, he was required by SSA regulations to reach out to the doctor to clarify any uncertainties, a step that he plainly never took, even after being instructed by the Appeals Council to do so. Finally, the ALJ's complaint about the absence of the April 10, 1997 MRI report is groundless since the report is in the record (Tr. 169), and if it had not been, the ALJ would have been obligated to seek it out.

As for the ALJ's rejection of Dr. Memoli's two narrative reports, the record appears fully adequate to demonstrate that Dr. Memoli had diagnosed plaintiff with some consistency as unable to perform essential work functions and as having significant limitations in his range of motion, with consequent substantial impact on his ability to engage in exertional activities. The ALJ, however, simply ignored those consistent findings, and asserted -- inaccurately -- that Dr. Memoli had offered only "vague statements". In short, the ALJ again failed in his duty to address all significant evidence in a meaningful way.³¹

31 The ALJ also sought to downplay Dr. Memoli's findings, citing the fact that "on or about March 4, 1999" Dr. Memoli had "concluded that the claimant experience[d] an overall marked, partial disability and for purposes of his Workers Compensation Benefits claim, should be classified as permanently partially disabled." (Tr. 24, 26). The ALJ suggested that this statement in 1999 demonstrated that even claimant's treating doctor had implicitly found plaintiff able to work. That assumption is plainly belied by the full record as well as by Dr. Memoli's narrative reports, but in any event if there were some question as to what he had meant by that statement, the ALJ was obligated to ask him, a step that the ALJ never took. In any event, as the ALJ noted, a treating doctors' statements about "disability" as such are entitled to no weight since that is an issue solely for the SSA to decide. (Tr. 26); see 20 C.F.R. § 404.1527(d)(1); pp. 102-03 n.43, infra.

In rejecting the findings of Dr. Katzeff, the ALJ similarly erred. Indeed, his reasoning is not only groundless, but plainly inconsistent, as well as violative of SSA regulations. In substance, at one point he taxes her for relying on the results of scans and other tests -- and not on "any positive clinical findings" -- in concluding that plaintiff suffers from severe limitations (Tr. 25), but MRIs, CT scans and EMG tests are prototypical "test results" that the SSA regulations require the ALJ to consider as probative and corroborative of the impressions that are proffered by treating doctors. 20 C.F.R. §§ 404.1527(a)-(c). To dismiss the doctor's findings on the basis that they are grounded on such objective tests is obviously and perversely inconsistent with the SSA's own regulations. Strangely, at another point in the ALJ's decision he rejects Dr. Katzeff's findings in part because she has not "listed [inter alia] the results of any diagnostic tests" (Tr. 26), even though he previously noted that she had ordered the battery of scans taken on December 2, 1998 (Tr. 24), and even though the results of those scans are in the record. In short, the ALJ's attempt to justify his complete rejection of the findings of Dr. Katzeff rests on illogical reasoning, disregard for SSA requirements pertaining to objective medical evidence, and simple falsity in factual premises.

The ALJ also failed to follow other requirements of the SSA regulations when he rejected the findings of both Drs. Memoli and Katzeff. As noted, if the ALJ does not grant full weight to a treating doctor's findings, he is required to specify the degree of weight that he gives them, and is to explain that degree of credence (or lack of it) by reference to four specific factors, including length of treatment, level of expertise and record support. The ALJ did not undertake that level of explanation, and hence failed in this respect to comply with the treating-physician rule.

In addition, the ALJ plainly erred in giving "some weight" to the opinions of the non-examining consultant Dr. Wells, even as he seemingly declined to give any weight to either of plaintiff's long-standing treating physicians. (Tr. 26). As noted, there is no indication in the record as to Dr. Wells's medical qualifications or what records he reviewed or the basis for his RFC findings that Dr. Cherico could do medium level work (including lifting and carrying up to 50 pounds). Moreover, the ALJ granted "some weight" to these unexplained and unsupported findings while refusing to give weight to either Dr. Memoli or Dr. Katzeff, despite the fact that they had been treating plaintiff since 1988 and 1997 respectively, had sent him for diagnostic tests that corroborated the seriousness of his condition, had undertaken in-office examinations and observations that were also corroborative of his condition, and had made specific findings that were consistent with their treatment notes. Moreover, in attempting to justify this conclusion, the ALJ relied on inaccurate characterizations of both the level of detail of what each of these treating physicians had found and the extent of clinical and laboratory evidence supporting their findings.

The ALJ also erred when, in citing Dr. Bagner's findings as support, he ignored that doctor's diagnosis of radiculopathy and failed to explain why the range-of-motion limitations that that doctor found were not supportive of plaintiff's diagnosed condition. This selective use of evidence in justifying an assessment of the treating doctors' findings also cannot be sustained.

Finally, as we have noted, on plaintiff's appeal from the decision of ALJ Gonzalez, he proffered the report of Dr. Goldman, who offered not only a 2010 assessment of plaintiff's condition (well past the insurance time period) but also a critique of Dr. Bagner's report, injecting some doubt into both that doctor's qualifications and the reliability and completeness of his findings. This challenge is particularly significant because Dr. Axline and the ALJ relied on Dr. Bagner's 1997 findings to buttress their conclusion that plaintiff could work during the relevant period. The Appeals Council declined to address Dr. Goldman's report with any specificity and simply noted that it had reviewed the document and concluded that it did not warrant setting aside the decision of the ALJ. (Tr. 11-12). Although the Appeals Council is not required to provide detailed explanations of its rulings, the Goldman report is now part of the administrative record, and we are obliged to take it into account in assessing the final decision of the SSA. See, e.g., Perez, 77 F.3d at 44-46. Since that report raises a potentially serious issue with regard to the reliability of the Bagner report and since the ALJ relied principally on the analysis of Dr. Axline, who in turn relied significantly on Dr. Bagner's comments, the record contains an inadequate explanation or justification by the SSA for its adoption of the analysis of Dr. Axline.³²

32 To the extent that the Goldman report describes the results of the doctor's 2010 examination of plaintiff, it does not meaningfully add anything to the record since the insured period ended in December 1998. We do note, however, that to the extent that Dr. Goldman opined that the diagnosed back conditions originated with the 1986 incident reported by plaintiff, that observation does purport to suggest that some degree of injury has been present since that time. Whether that observation is significant is for the SSA to determine in the first instance, but we are offered no explanation by the SSA on that point. See, e.g., Knepple-Hodyno v. Astrue, 2012 WL 3930442, *9 (E.D.N.Y. Sept. 10, 2012); Riley v. Apfel, 88 F. Supp. 2d 572, 578 (W.D. Va. 2000); Amidon v. Apfel, 3 F. Supp. 2d 350, 356 (W.D.N.Y. 1998).

b. The ALJ's Application of the SSA Listing Regulations

The ALJ undertook a brief assessment of whether the plaintiff's limitations met or exceeded the criteria for per se disability under the so-called listing regulations of the SSA. In doing so, ALJ Gonzalez simply stated, in entirely conclusory terms, that he had "specifically considered listing 1.04, Parts A and C" and, "relying on the testimony of impartial medical expert Dr. Axline, and as discussed in further detail below, the undersigned finds that the objective medical evidence of record does not support a finding that the claimant experienced symptoms or limitations of a severity sufficient to meet the requirements set forth in that or any other listed impairment." (Tr. 23). Despite the ALJ's suggestion that a more detailed discussion would follow, he never refers to the specific criteria of the cited listings and never purports to apply those criteria to the medical evidence, apparently on the assumption that his general adoption of Dr. Axline's testimony is sufficient, by implied incorporation in the decision, to explain his own reasoning on this question.

This mode of explanation is patently inadequate to substitute for specific findings in view of the fact that plaintiff has at least a colorable case for application of listing 1.04(A).³³ That listing requires a showing of one of several "disorders of the spine", a list that includes spinal stenosis and degenerative disk disease, both conditions with which plaintiff has been repeatedly diagnosed -- diagnoses that the ALJ in fact credited. (Tr. 22). In addition to either of these two diagnoses, the claimant must be found to have "[e]vidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight leg raising test (sitting and supine)." See, e.g., Alban v. Astrue, 2012 WL 6728055, *3-*4 (D. Conn. Dec. 6, 2012).

33 We exclude listing 1.04(c), referring to lumbar spinal stenosis, which requires a finding of "inability to ambulate effectively". That term is defined in 1.00(B)(2)(b), which specifies certain stringent limitations on walking. Plaintiff's testimony does not appear to support a finding that he is so limited since, during the relevant period, he did not use his cane, and was able to accompany his mother or other family members on shopping trips. (Tr. 951).

There is record support for each of these symptoms. (E.g. Tr. 95, 124, 136, 148, 165). Necessarily, then, the ALJ was required to address that evidence, and his failure to specifically do so was error that would justify a remand.

c. The ALJ's Assessment of Plaintiff's Credibility Regarding His Subjective Pain and Physical Limitations

The ALJ exercises discretion over the weight assigned to a claimant's testimony regarding the severity of his pain and other subjectively perceived conditions, and his resulting limitations. See, e.g., Schultz, 2008 WL 728925 at *12 (citing Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979); Snell, 177 F.3d at 135). If the ALJ's findings are supported by substantial evidence, a reviewing court must uphold his decision to discount the claimant's testimony. See Marcus, 615 F.2d at 27 (citing Richardson, 402 U.S. at 401).

Nonetheless, the ALJ's discretion is not unbounded. The Second Circuit has held that throughout the five-step process, "'the subjective element of [plaintiff's] pain is an important factor to be considered in determining disability.'" Perez v. Barnhart, 234 F. Supp. 2d 336, 340 (S.D.N.Y. 2002) (quoting Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984)); see also 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) ("We will... consider descriptions and observations of [a claimant's] limitations from [his or her] impairment(s), including limitations that result from [his or her] symptoms, such as pain, provided by [that claimant]"). In assessing the claimant's testimony, the ALJ must take all pertinent evidence into consideration. E.g., Perez, 234 F. Supp. 2d at 340-41; see also Snell, 177 F.3d at 135 (stating that an ALJ is in a better position to decide credibility than the Commissioner). Even if a claimant's account of subjective pain is unaccompanied by positive clinical findings or other objective medical evidence,³⁴ it may still serve as the basis for establishing disability as long as the impairment has a medically ascertainable source. See, e.g., Harris v. R.R. Ret. Bd., 948 F.2d 123 (2d Cir. 1991) (citing Gallagher v. Schweiker, 697 F.2d 82, 84-85 (2d Cir. 1983)).

34 Objective medical evidence is "evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1529(c)(2); see also Casino-Ortiz, 2007 WL 2745704 at *11, n.21 (quoting 20 C.F.R. § 404.1529(c)(2)). Clinical diagnostic techniques include methods showing "residual motion, muscle spasms, sensory deficit or motor disruption." 20 C.F.R. § 404.1529(c)(2). See also 20 C.F.R. § 404.1528(b). Laboratory findings "are anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays), and psychological tests." 20 C.F.R. § 404.1528(c).

SSA regulations outline a two-step framework under which an ALJ must evaluate a claimant's subjective description of his or her impairment and related symptoms. 20 C.F.R. §§ 404.1529, 416.929; see also SSR 96-7p, 1996 WL 374186, at *6-9 (July 2, 1996) (summarizing framework). "First, the ALJ must consider whether the claimant has a medically determinable impairment which could reasonably be expected to produce the... symptoms alleged by the claimant." Martinez, 2009 WL 2168732, at *16 (alteration in original) (citing McCarthy v. Astrue, 2007 WL 4444976, at *8 (S.D.N.Y. Dec. 18, 2007)); see also 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1). "Second, the ALJ must 'evaluate the intensity and persistence of those symptoms considering all of the available evidence.'" Peck v. Astrue, 2010 WL 3125950, at *4 (E.D.N.Y. Aug. 6, 2010) (citing 20 C.F.R. § 404.1529(c)); accord Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii)) and Taylor v. Barnhart, 83 F. App'x 347, 350-51 (2d Cir. 2003)). "To the extent that the claimant's 'pain contentions are not substantiated by the objective medical evidence,' the ALJ must evaluate the claimant's credibility." Peck, 2010 WL 3125950, at *4 (citing 20 C.F.R. § 404.1529(c)); see also Meadors, 370 F. App'x at 183-84 (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vii); Taylor, 83 F. App'x at 350-51). It should be noted that "the second stage of [the] analysis may itself involve two parts." Sanchez v. Astrue, 2010 WL 101501, at *14 (S.D.N.Y. Jan. 12, 2010). "First, the ALJ must decide whether objective evidence, on its own, substantiates the extent of the alleged symptoms (as opposed to the question in the first step of whether objective evidence establishes a condition that could 'reasonably be expected' to produce such symptoms)." Id. "Second, if it does not, the ALJ must gauge a claimant's credibility regarding the alleged symptoms by reference to the seven factors listed [in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3)]." Id. (citing Gittens v. Astrue, 2008 WL 2787723, at *5 (S.D.N.Y. June 23, 2008)). If the ALJ does not follow these steps, remand is appropriate. Id. at *15 (citing 20 C.F.R. § 404.1529(c)).

When a claimant reports symptoms more severe than medical evidence alone would suggest, SSA regulations require the reviewing ALJ to consider specific factors in determining the credibility of a claimant's symptoms and their limiting effects. SSR 96-7p, 1996 WL 374186, at *2. These factors include: (1) an individual's daily activities; (2) the location, duration, frequency and intensity of pain or other symptoms; (3) factors that precipitate and aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of medication the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, that the individual receives or has received for pain or other symptoms; (6) measures other than treatment the individual uses or has used to relieve pain or other symptoms; and (7) other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3); see also Bush, 94 F.3d at 46 n.4; Wright v. Astrue, 2008 WL 620733, at *3 (E.D.N.Y. Mar. 5, 2008) (citing SSR 96-7p).³⁵

35 SSR 96-7p states, in pertinent part, "in recognition of the fact that an individual's symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone, 20 C.F.R. sections 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements."

Finally, "'[o]nly allegations beyond what is substantiated by medical evidence are to be subjected to a credibility analysis... [because requiring] plaintiff to fully substantiate [his] symptoms with medical evidence would be both in abrogation of the regulations and against their stated purpose." Martin v. Astrue, 2009 WL 2356118, *10 (S.D.N.Y. July 30, 2009) (citing Castillo v. Apfel, 1999 WL 147748, *7 (S.D.N.Y. Mar. 18, 1999)).

In this case, plaintiff testified to continuing severe pain in the form of both neck and lower-back pain, as well as occasional shooting pain down his legs, and some weakness in his arms and hands. Moreover, his treating neurologist found confirmatory signs of pain and numbness -- in the form of radiological reports, limits on ranges of motion, tenderness at various points of the anatomy, and spasms. He also diagnosed conditions that could be expected to cause both plaintiff's back pain and related problems in the legs.

In view of that record, the ALJ's assessments of plaintiff's credibility fell short in several respects. He asserted in conclusory terms that "the claimant's allegations regarding the symptoms of her [sic.] impairments and her [sic.] resulting limitations are not entirely consistent with the objective medical evidence and [the] undersigned further notes that the factors listed in SSR 96-7-p support a finding that the claimant's complaints are credible only to the extent that they are consistent with the residual functional capacity set forth above." (Tr. 25- 26).³⁶ The ALJ first purported to justify this vague conclusion by asserting -- incorrectly -- that plaintiff had offered inconsistent descriptions of the 1986 incident that had triggered his back pain. (Tr. 26).³⁷ He then asserted that plaintiff had confirmed that "his alleged onset date coincides with his inheritance of a large sum of money... which" -- the ALJ speculates -- "may have significantly diminished his desire to return to work." (Tr. 26). This conclusion is, as noted, pure speculation, and in any event it rests on the unproven factual premise that plaintiff's inheritance coincided with his 1986 injury; in fact, the plaintiff never so stated. The ALJ then goes on to invoke Dr. Axline's testimony to the effect that plaintiff's complaints during the insured period "appear to be quite subjective in nature and were not supported by objective clinical findings..." (Tr. 26) -- an assertion that is demonstrably false given, inter alia, documented scans, range-of-motion tests, and observed muscle spasms and diminished sensation, as well as documented heavy pain medication and other intrusive treatments, including spinal steroid injections. The ALJ then taxed plaintiff with having said that he needed a cane but that it was not mentioned in the medical reports of Drs. Memoli and Katzeff, and that Dr. Bagner had observed on the one occasion when he examined Dr. Cherico that he had no assistive device and moved without obvious difficulty; in citing this report the ALJ ignores that plaintiff testified that he avoids using a cane whenever he can. (Tr. 949).

36 The gender errors in this quotation strongly suggest that the ALJ was simply invoking standard boilerplate rather than assessing the specifics of plaintiff's case.

37 The ALJ suggested, albeit without citing to anything in the record, that although plaintiff had testified that he had been injured when lifting a box of books, at other times he had reported that he had been injured when he fell while carrying a box of books. (Tr. 26). In fact the plaintiff repeatedly reported that the injury had occurred when he lifted a box of books and that the pain had cause his leg to collapse. (E.g. Tr. 204, 617, 618A, 942-43). There is no inconsistency.

In any event, the ALJ's conclusory and factually flawed reasoning is also unsupportable because it ignores many of the required criteria for a credibility assessment. These include plaintiff's daily activities, which were very limited for an extended period of time during the pertinent years; the location, duration, frequency, and intensity of his pain and numbness; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of the medications that Dr. Cherico was taking (see Tr. 1056); treatments other than medication that plaintiff had attempted for relief of pain -- including physical therapy, acupuncture and steroid injections; measures other than treatment that plaintiff used; and any other factors concerning his functional limitations and restrictions.

In short, the ALJ's assessment of plaintiff's credibility was brief and conclusory, as well as factually inaccurate, and failed to comply with the far more rigorous requirements of the SSA regulations. This shortfall also would merit a remand.

III. Nature of the Relief

As noted, the parties dispute the nature of the relief that is appropriate at this stage, with defendant arguing for a remand and plaintiff asserting that an outright determination of eligibility for benefits is warranted. We first summarize the basic principles that govern this issue and then assess the pertinent parts of the record.

For the reasons that we have cited, the Commissioner's decision cannot stand. Under the Act, a reviewing court can order further proceedings when appropriate. "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g); Butts, 388 F.3d at 384. Remand is warranted where "'there are gaps in the administrative record or the ALJ has applied an improper legal standard.'" Rosa, 168 F.3d at 82-83 (quoting Pratts, 94 F.3d at 39); cf. Butts, 388 F.3d at 384. See also Mead v. Colvin, 2014 WL 1165836, *9 (D. Vt. March 21, 2014). Remand is also appropriate where further findings or explanations will clarify the rationale for the ALJ's decision. Pratts, 94 F.3d at 39; see also Butts, 388 F.3d at 385.

If, however, the record provides "persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the court may reverse and remand solely for the calculation and payment of benefits. Parker v. Harris, 626 F.2d 225 (2d Cir. 1980); see e.g., Carroll, 705 F.2d at 644 (where "reversal is based solely on the [Commissioner's] failure to sustain his burden of adducing evidence of [plaintiff's] capability of gainful employment and the [Commissioner's] findings that [plaintiff] can engage in 'sedentary' work is not supported by substantial evidence, no purpose would be served by remanding the case for a rehearing[.]"); accord Balsamo, 142 F.3d at 82.

The question remains whether this case should be remanded for further consideration, or simply for calculation of benefits, as plaintiff urges. In seeking a benefit award, plaintiff relies on both the asserted strength of the evidence supporting his argument that he was disabled before the end of 1998 and the extraordinary delays of the SSA in processing his application and the repeated failures of the two ALJs to comply both with SSA regulations and with the two remand orders of the Appeals Council. Defendant, in contrast, emphasizes that delay alone cannot justify a court awarding benefits and points to what it contends are weaknesses in plaintiff's showing of asserted disability. Thus the Commissioner suggests that if the errors that she concedes were made are corrected, the SSA still might well defensibly find against plaintiff.

We start by noting that the Second Circuit has held that "[a]bsent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits." Bush, 94 F.3d at 46; accord, e.g., Giddings, 333 F. App'x at 655. Where there has been substantial delay, however, the court has the discretion to impose time limits on remand as a means of avoiding undue further sloth in finalizing a properly-based decision on the claimant's application. See, e.g., Butts, 388 F.3d at 387; accord Butts, 416 F.3d at 104-06.³⁸

38 The Butts decisions left open what the consequence would be if the SSA failed to comply with a court-imposed deadline on remand in a case in which the determination of non-disability was made at step 4. See 416 F.3d at 103-05 (emphasizing that Commissioner bore the burden of proof at the fifth stage).

In this case, substantial evidence supports the conclusion that plaintiff was disabled during the period of his insurance coverage. As we have noted, both of plaintiff's long-term treating doctors have consistently diagnosed plaintiff as suffering from severe spinal stenosis in the lumbar spine and degenerative disk disease in the cervical spine since at least 1997. Moreover, those diagnoses are supported by well-accepted diagnostic tests and other data, including repeated MRIs, CT scans, a set of EMG studies, range-of-motion tests and medical observations of muscle spasms and decreased sensation in plaintiff's leg. In addition, both doctors have supplied detailed RFC findings that are consistent with their respective conclusions that plaintiff was unable to perform essential work functions during the relevant period.³⁹ Furthermore, Dr. Memoli is a Board-certified orthopedic surgeon and is thus plainly a specialist in the pertinent area of medicine, and he has had a multi-decade familiarity with the patient.

39 The SSA seems to argue that the dating of Dr. Memoli's RFC findings, as reflected in his 2001 and 2006 narrative reports, is ambiguous. The implication is that these reports could be read as referring only to limitations found in 2001 (or perhaps 2003). Indeed, that was a basis for the directive of the Appeals Council on both remand orders that the ALJ reach out to Dr. Memoli to clarify his reports, a directive that both ALJs ignored. Nonetheless, a review of the entirety of the record of Dr. Memoli's treatment and assessment of plaintiff makes it quite clear that he viewed Dr. Cherico as disabled from at least 1997 and that he assessed his condition as essentially unchanged for the entire relevant period. Indeed, that is reflected in the very treatment notes that ALJ Gonzalez criticized as too often filled with the observation that the patient's condition was essentially unchanged. As we have noted above, that shorthand reiteration of prior findings was entirely permissible as reflecting the largely stable status of the plaintiff. Under these circumstances, the asserted ambiguity in the narrative reports, when viewed in context, does not undermine the substantial weight that should be accorded to the specific and well-supported findings of the treating doctor. Cf. Madrigal v. Callahan, 1997 WL 441903, *8-9 (S.D.N.Y. Aug. 6, 1997). In any event, a fair reading of ALJ Gonzalez's decision makes it clear that he was not questioning the retrospective nature of Dr. Memoli's 2001 and 2006 narrative reports, an implicit concession that -- as we note -- is clearly justified. Since the Appeals Council declined to review the ALJ's 2010 decision, the SSA necessarily adopted the ALJ's reading of the Memoli reports, and hence the suggestion by the Appeals Council in 2006 that those reports were ambiguous in this respect does not justify remand.

The real question is whether there is sufficient countervailing evidence to amount to "substantial evidence" contradicting the conclusion that plaintiff was disabled before 1999. See, e.g., Madrigal, 1997 WL 441903 at *9 (SSA "must give controlling weight to the opinions of claimant's treating physicians which are 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and are not inconsistent with other substantial evidence in the record.")(quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) & citing Schisler, 3 F.3d at 568).

The evidence cited by the ALJ to support his conclusion that benefits should be denied is principally in the form of testimony by Dr. Axline, who never laid eyes on plaintiff, and certainly did not examine him, but rather relied solely on his review of an unspecified set of prior medical records. To the extent that the ALJ also mentioned that Dr. Axline cited certain exhibits in his testimony, we infer as well that the ALJ relied on those documents. As the SSA regulations and caselaw make plain, however, the testimony of a non-examining consultant is not itself substantial evidence. Rather, any opinions voiced by that consultant must themselves be supported by substantial evidence in order to justify reliance on the consultant's stated views of the claimant's conditions and capacities. 20 C.F.R. § 404.1527(f). See, e.g., Tarsia v. Astrue, 418 F. App'x 16, 18 (2d Cir. 2011); Diaz, 95 F.3d at 313 & n.5. That evidence is lacking here.

Dr. Axline made mention of what he contended were items in the record that supported the notion that plaintiff could perform sedentary work. Upon examination, these references do not permit a reasonable person to join in Dr. Axline's conclusion.

He mentioned an examination in 1997 by Dr. Bagner, which described range-of-motion and other tests; among those findings Dr. Bagner noted a number of range-of-motion limitations (including particularly extension and lateral flexion) that resembled those of Dr. Memoli, limitations on straight-leg raising, and "patchy" decreased sensation in the right leg (Tr. 845) -- findings that Dr. Axline did not directly address and that seem, if accurate, to support, in at least general terms, the determinations by the treating doctors as to plaintiff's continuing limitations. Indeed, as pointed out in the unrebutted portion of Dr. Goldman's 2010 report, the finding of decreased sensation at the location noted by Dr. Bagner -- which echoed the findings of Dr. Memoli (Tr. 206, 217, 618A) -- is direct confirmation of the reported dysfunction at plaintiff's L3-4 disc. (Tr. 923). It also bears emphasis that although Dr. Bagner found smaller and fewer limitations on some ranges of motion than had Dr. Memoli, Dr. Axline never offered any explanation for the discrepancy between Dr. Bagner's findings and those of the treating doctors. We note also that Dr. Bagner has not been shown to have any expertise in orthopedic assessment, thus rendering the reliance on his findings by Dr. Axline and the ALJ entirely problematic. (See Tr. 923 (Dr. Goldman's critique of the Bagner measurements)).

Dr. Axline (and the ALJ) also relied on the fact that the December 2, 1998 lumbar MRI report did not specifically mention severe spinal stenosis. (Tr. 1008; but see Tr. 995-96 (Dr. Axline acknowledging report of "mild spinal stenosis", which he later denied)). Both ignored the fact that this condition was repeatedly diagnosed by radiologists both before and after the December 1998 report -- indeed, as soon thereafter as February 19, 1999 (Tr. 141), only two months later, as well as on April 10, 1997 (Tr. 169, 206, 618A, 842), and on March 25, 1999. (Tr. 136). Moreover, both Dr. Axline and the ALJ ignored the fact that the December 2, 1998 radiology report referred not only to a bulging disk at L2-3, but, among other conditions, to a bulging disk at L3-4 that "severely compromised" the thecal sac together with narrowing of the foramina and hypertrophy of the Ligementum Flavum (a condition that causes spinal stenosis)⁴⁰, disk bulges and osteophyte formation at L4-5 and "extensive edema" at L2. (Tr. 872-73).

40 See, e.g., Ligementum Flavum, Laser Spine Institute (July 31, 2014, 10:25 AM), http://www.laserspineinstitute.com/articles/ligementum_flavum_article.com.

As for the balance of the documents that Dr. Axline cited in his testimony (Tr. 994 et seq.), they do not individually or collectively amount to substantial evidence that plaintiff was not disabled at any point before the end of 1998. He mentioned Exhibit 5F (see Tr. 993, 998)⁴¹, a set of records of treatment at Montefiore, but none reflects an ability by plaintiff to perform work-related activities, and indeed the only directly relevant item in that collection is the set of radiological reports from April 10, 1997 and December 2, 1998, which, as noted, are consistent with the treating doctors' assessments. (Tr. 869-75).⁴² He also mentioned Exhibit 4F (see Tr. 995), which is a small portion of extensive physical therapy records (Tr. 854). The sheet in question -- an initial evaluation dated May 12, 1998 -- listed severe range-of-motion limitations, including flexion to 30 degrees, extension to 10 degrees, and straight-leg raising positive at 35 degrees. It also noted spasms, parasthesias, myofascial restrictions, and pain on various movements, and lumbar spine derangement. (Id.). All of these findings add further support to the treating doctors' conclusions.

41 Unhelpfully, Dr. Axline created his own document numbering system, although the ALJ exerted some effort to identify the SSA exhibit numbers relating to the documents that Dr. Axline was citing. (See, e.g., Tr. 996-97, 1010, 1036).

42 We do note that these records include some older radiological reports regarding plaintiff's spinal status dating from 1987 and 1988, a decade before the onset dates proposed here. (Tr. 876-79). It does bear mention that as early as 1988 an MRI study yielded a finding of a degenerated disk with a prominent bulge at L3-4, and with "severe narrowing of the subarachnoid space at that level." (Tr. 976).

Dr. Axline also mentioned a document that was identified as Exhibit 15F (Tr. 995), which does not correspond to any document other than Exhibit 15, which was a statement by Dr. Cherico in support of his hearing request (Tr. 91-92) and contains no information that would undercut his application for benefits. He also referred to an item apparently identified as Exhibit 48F (Tr. 1010), which is Dr. Katzeff's completed "Multi Impairment Questionnaire". (Tr. 378-87). As noted, her responses fully support plaintiff's contention that he was disabled while insured. Dr. Axline also mentioned Dr. Memoli's 2001 narrative report, which also fully supported plaintiff's case. (Tr. 204-08).

Dr. Axline and the ALJ also cited the report of the non-examining consultant Dr. Wells (Exhibit 3F), who reviewed unspecified documents and opined, on an unspecified basis, that plaintiff had virtually no work-related limitations and was capable of lifting and carrying up to 50 pounds occasionally and 25 pounds frequently, and could sit, stand and walk for up to six hours in an eight-hour day. (Tr. 846-53). As noted, Dr. Wells offered neither an identification of the records that he had reviewed nor any explanation for his RFC findings. Moreover, when asked why the findings of treating and examining sources that conflicted with his own were not supported by the evidence, he offered one sentence, which was completely illegible. (Tr. 852). This report obviously should carry no weight whatsoever since (a) we have no information as to Dr. Wells's qualifications, (b) we have no information as to what records he reviewed, (c) we have no explanation as to the basis for his RFC findings, and (d) we have no (readable) explanation as to why he differed so radically from every other doctor, including consultants as well as treating sources. In this regard, we note the obvious -- the SSA cannot support the otherwise unsupported opinions of a non-examining consultant as to the condition and limitations of a claimant by citing the still less illuminating findings of another non-examining consultant. See, e.g., Harris v. Colvin, 2013 WL 5278718, *6 (N.D.N.Y. Sept. 18, 2013).

Dr. Axline also referenced the April 6, 1999 assessment submitted by Dr. Weiss to the New York State Office of Temporary and Disability Assistance (Tr. 996), which indicated that based on the doctor's single examination of plaintiff on March 15, 1999 and review of radiographic findings, he estimated that plaintiff was limited to carrying 20 pounds occasionally and to walking or standing no more than eight hours in a day, but was otherwise unrestricted. (Tr. 893-94). In addition to the fact that Dr. Weiss's report is sparse and does not indicate the clinical bases for his assessment of plaintiff's RFC, his opinion as a non-treating physician with no identified credentials is entitled to little weight and certainly cannot override the findings of the two treating physicians, Drs. Memoli and Katzeff.

Finally, we note that Dr. Axline failed to address in any specific manner the results of the December 2, 1998 MRI of the cervical spine, which showed significant problems there as well. Indeed, as noted, the report mentioned diffuse degenerative disk disease, which was particularly marked at C5-6, with "chronic" central and bilateral disk herniation and osteophyte formation at that level that deformed the sac, touched the cord and appeared to reach the left C6 root, together with "mild" foraminal changes; a small central and slightly left-sided disk bulge at C4-5; and a left-sided disk bulge and proximal foraminal disk herniation at C7-T1. (Tr. 148). The assessment of a disability claim must take into account all contributing conditions, and neither Dr. Axline nor the ALJ meaningfully addressed the significance of this study, which plainly also supports the plaintiff's claim of disabling pain.

In sum, as we have noted, there exist some evidentiary gaps in the record, and the ALJ committed a number of legal errors. These errors would normally call for a remand if the record, when corrected, would leave open the potential for a reasonable finding that the claimant was not disabled. In view, however, of the very weighty evidence of disability reflected not only in the specific and repeated findings of plaintiff's two principal treating doctors -- including a Board certified orthopedic surgeon -- but also the ample corroborative evidence of dysfunction in the lumbar and cervical spines, in the form of numerous scans, repeated testing of ranges of motion which yielded significant limitations over a long period of time (including by examining consultants), as well as other physical evidence of dysfunction (for example, repeated observation of muscle spasms), in addition to plaintiff's reported symptoms and limitations on activities of daily living (even if his testimony is substantially discounted for melodramatic exaggeration), and his willingness to undergo a wide range of treatments, including heavy pain medications, spinal injections, acupuncture, and chiropractic intervention, the record is replete with "persuasive proof of disability". Parker, 626 F.2d at 235. In short, it does not permit a reasonable view that plaintiff was never under a disability, as defined by the Act, during his period of insurance coverage.⁴³ Under these circumstances, and in view of the long history of this case -- in which the SSA has had ample opportunity to make a full record that would justify its decision -- remand for still further proceedings would be an exercise in futility.⁴⁴ See generally Webster, 2014 WL 183936 at *15 (quoting Butts, 388 F.3d at 387) (awarding benefits when SSA did not justifiably grant controlling weight to treating doctor's evaluation and improperly rejected claimant's credibility). As the Second Circuit has observed, because "a remand is within the discretion of a district court, the principles calling for some evaluation of relative hardships that govern a discretionary selection of alternative remedies apply, and the hardship to a claimant of further delay should be considered". Butts, 388 F.3d at 387. Accordingly, we order that the case be remanded solely for the calculation of benefits from the onset date found by ALJ Gonzalez, that is, April 10, 1997. (Tr. 23).

43 We note in passing two other items that the ALJ mentioned in seeming support of his conclusion. First, he referred to a 2001 examination of plaintiff by Dr. Tabbador, who, as he observes, did not diagnose radiculopathy. (Tr. 25, 94; see also Tr. 996). That examination took place more than two years after the end of the insured period; moreover, Dr. Tabbador recommended steroid injections and an increase in pain medication and offered no RFC estimate. We further note that neither treating physician ever made an explicit finding of radiculopathy, but that Dr. Bagner, whom both the ALJ and Dr. Axline relied upon, did diagnose that condition.
Second, the ALJ noted at several points in his decision that Dr. Memoli had written in March 1999, for Workers Compensation purposes, that plaintiff had a marked permanent partial disability. As we have observed, Dr. Memoli repeatedly made diagnoses, specified the results of scans and other tests, and provided RFC findings that were incompatible with a fulltime working capacity. Moreover, the ALJ (and by implication the SSA) adopted the rule that a treating doctor's characterization of a patient as "disabled" or not is completely irrelevant because that determination is exclusively for the SSA to make. If so, then the cited reference to a "marked permanent partial disability" should be equally irrelevant.

44 The ALJ decided against plaintiff's application at the step 4 level of analysis, since he found that Dr. Cherico was able to perform his prior work, and never formally decided the step 5 question. Nevertheless, the SSA did receive testimony from the VE at two hearings as to the availability of jobs in the economy for someone with plaintiff's possible limitations (Tr. 974-77, 1071-72) and concluded that plaintiff could perform "a wide range of exertionally sedentary work." (Tr. 23). In other words, the SSA did effectively consider the step 5 question, and we therefore conclude that there is no basis to remand for purposes of rehashing that process. See generally Curry v. Apfel, 209 F.3d117, 123-24 (2d Cir. 2000)(award of benefits directed after SSA failed to show claimant could perform sedentary work). Compare Brickhouse v. Astrue, 331 F. App'x 875, 877-78 (2d Cir. June 23, 2009). --------

CONCLUSION

For the foregoing reasons, plaintiff's motion for judgment on the pleadings is granted, defendant's motion -- insofar as she seeks remand for further administrative proceedings -- is denied. We therefore order that the case be remanded to the Commissioner for the calculation of benefits. Dated: New York, New York

August 7, 2014

/s/ _________

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE Copies of this Memorandum & Order have been sent today to: Charles E. Binder, Esq.
Law Office - Harry J. Binder and Charles E. Binder
60 East 42^nd Street
Suite 520
New York, New York 10165 Lesley A. Ramirez-Fisher, Esq.
Assistant United States Attorney

for the Southern District of New York
86 Chambers Street, 3^rd Floor
New York, New York 10007