Santiago v. Colvin

3:16-cv-00338-JCH

2017 | Cited 0 times | D. Connecticut | February 15, 2017

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT ANGEL LUIS VELEZ SANTIAGO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

CIVIL ACTION NO. 3:16-cv-338 (JCH)

FEBRUARY 15, 2017

RULING RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS (Doc. No.

16) AND TO AFFIRM THE DECISION OF THE COMMISSIONER (Doc. No. 20) I. INTRODUCTION

The plaintiff, Velez , filed this administrative appeal pursuant to section 405(g) of title 42 of the United States Code. See Complaint (Doc. No. 1) ¶ 1. Velez asks this court to reverse the final decision of the Commissioner of Velez See Compl. ¶¶ 12 13, Prayer for Relief; see also Mot. for J. (Doc. No.

16). Velez argues that (1) the Administrative Law Judge (ALJ) afforded insufficient weight to the opinion of Velez and (2) the ALJ improperly evaluated . See Mem. in Supp. of Mot. for J. (Doc. No. 17) at 1, 6. Colvin moves the court to affirm the final decision. See Mot. to Affirm (Doc. No. 20).

For the reasons that follow, the court GRANTS Velezfor Judgment on the Pleadings (Doc. No. 16), DENIES 0), and REMANDS this case to the agency for proceedings consistent with this Ruling.

II. MEDICAL BACKGROUND 1

Velez was born in 1959. See 12-3 to 12-9) at 135. He has a seventh grade education. See id. at 137. In the past,

he worked as a firefighting equipment tender, a landscape laborer, and a commercial cleaner. See id. at 159.

A. Velez , at Southwest Community Health Center 2

state, inter alia, the following: On June 2, 2009, Velez complained of wrist pain, radiating to his left shoulder. See id. at 567. The pain was at an intensity level of six out of ten. See id. at 567. Dr. Khalid diagnosed Velez with wrist and shoulder pain, and also recorded diagnoses of anxiety and hypertension. See id. at 567. visits reflect ongoing diagnoses of anxiety and hypertension. See id. at 521 61, 735 62. On August 17, 2009, Velez no longer had wrist pain. See id. at 566. On October

1 The court takes the medical background from the (Docs. No. 12-3 to 12-9) and . The court had ordered the make a good faith attempt to stipulate to the facts. im, on the due date, that she had not yet reviewed his proposal. See Mot. for Extension (Doc. No. 14). Extension of Time, see id., which the court granted, see attorney ha stipulation because she would be on vacation at the time of the new due date. See Facts at 2.

n the event that a stipulation of facts cannot be reached, Plaintiff s memorandum shall contain a medical chronology, in narrative form, with record citations, to which Defendant shall respond, either agreeing with the chronology as presented or indicating any material omissions or areas of disagreement, again with record citations. See to the Statement of Facts as ordered.

2 See Tr. at 548 60. name on the February 27, 2015 Physical Therapy Adult Evaluation. See id. at 728.

27, 2009, however, Velez complained of severe pain in his arm, which had lasted three weeks. See id. at 565. The pain was at an intensity level of ten out of ten. See id. at 565. Dr. Khalid diagnosed shoulder pain. See id. at 565. On January 27, 2010, Velez complained of chest pain, shoulder discomfort, and finger numbness. See id. at 564. at an intensity level of three out of ten. See id. at 562. Dr. Khalid diagnosed chest pain. See id.at 562. On March 29, 2010, Velez had no pain. See id. at 563.

On October 27, 2010, Velez complained of depression, anxiety, and stress. See id. at 559. His mother had died a month before. See id. at 559. Dr. Khalid diagnosed depression. See id. an ongoing diagnosis of depression. See id. at 521 55, 735 61.

On January 27, 2011, Velez complained of back pain and muscle stiffness. See id. at 558. Dr. Khalid diagnosed back pain. See id. at 558. On July 12, 2011, Velez complained of chest pain, radiating to his right shoulder and the right side of his back. See id. at 556. The pain had lasted for a week and was at an intensity level of seven out of ten. See id. at 556. Velez also was experiencing neck stiffness. See id. at 556. Dr. Khalid diagnosed neck and shoulder pain. See id. at 556.

On September 12, 2011, Velez reported depression and suicidal thoughts as a result of his he was not in physical pain. See id. at 555.

On October 3, 2011, Velez reported a recent work injury to his back, and his back pain was of an intensity level of five or six out of ten. See id. at 554. Velez continued to complain of depression. See id. at 554. Dr. Khalid again diagnosed back pain. See id.

diagnosis. See id. at 521 53, 735 62. On December 2, 2011, Velez was experiencing chronic back pain with an intensity level of six or seven out of ten, and also complained of anxiety. See id. at 553. On February 2, 2012, Velez stated that he was trying to cope with depression. See id. at 552. Velez also had chronic back pain with an intensity level of three out of ten, and an MRI reported a bulging disc. See id. at 552. On May 2, 2012, Velez presented with anxiety and depression, stating that at times, he was unable to get out of bed. See id. at 551. He also complained of chronic back pain, at an intensity level of three out of ten. See id. at 551.

On August 29, 2012, Velez presented with right knee pain, which had caused him difficulty walking for the past month, despite Velez not having experienced trauma to the area. See id. at 550. Velez also continued to complain of anxiety. See id. at 550. Dr. Khalid diagnosed knee pain. See id. at 550.

On May 6, 2013, Velez experienced back pain at an intensity level of seven out of ten, which was aggravated by bending and twisting. See id. at 544 ] Id. at 546.

On September 3, 2013, Velez was not in pain and again Id.

at 540 42. Velez was experiencing occasional symptoms of anxiety, however. See id. at 540. On December 3, 20 . See id. at 536. Velez still was not in pain, and still Velez

experienced mild . Id. at 536 38. On

December 10, 2013, Velez was not in pain, and Id. at 533.

On February , however, and occurred Id. Id. changing positi Id. at 526. The

back pain once again was at an intensity level of seven out of ten. See id. at 528. Id. at 526.

On March 10, 2014, Velez was no longer in pain, and once again range of motion, muscle strength, and stability in all extremities with no pain on Id. at 522 23.

On May 9, 2014, however, Velez presented with bilateral pain and swelling on both legs and hands, which had lasted for the past three weeks. Id. at 735. Velez had no strength in his hands he could not even hold a gallon of milk. Id. at 735. Velez also complained of pain on the right side of his head. See id. at 735. Confusingly, however, Dr. Khalid noted See id. at 737.

See id. at 740. his spine. See id. at 742. middle finger on his right hand was lock[ing] up. Id. at 742. On August 19, 2014, Velez complained that his right foot hurt when he walked. See id. at 745. Velez had experienced this foot problem for the last two weeks. See id. at 745. Velez felt mild pain when he moved his right foot or ankle. See id. at 747.

On October 14, 2014, and again on January 6, 2015, Velez no longer had any pain, and a physical examination of produced normal results. See id. at 752, 758.

On February 3, 2015, however, Velez had back pain with a severity level of eight out of ten. See id. at 761, 764. The problem fluctuated, but occurred persistently. See id. Id. at 761. Symptoms Id. at 761. The pain had lasted for the past two to three days. See id. at 761. Velez also complained of [with his] left hand after surgery for [his] trigger finger, feel[ing] depressed, [and being] Id. at 761. Velez experienced moderate pain when he moved his lumbar spine, and had a mildly reduced range of motion in his shoulders. See id. at 764.

state that p]rimary language is English, id. at 526, 531, 536, 540, 544, but that his [l]anguage spoken at home is [Castilian] Spanish id. at 526.

B. examined Velez, at the request of the Social Security Administration (SSA). See id. at 516 20. Dr. Goccia wrote Id. at 516. Dr. Id. at 517. Dr. Goccia described

Id. at 518. Dr. Goccia stated that Velez

had a normal gait had a normal stance, Id. at 518.

Dr. Goccia described the results of a musculoskeletal exam by stating, inter alia, cervical and lumbar spine both showed and that Velez had a full range of motion, bilaterally, in his shoulders, elbows, forearms, wrists, hips, knees, and ankles. Id. at 518.

Dr. Goccia also stated that Velez had a strength level of five-out-of-five in his

he had a grip strength level of five-out-of-five, bilaterally. Id. at 519.

Dr. Goccia diagnosed Velez with conditions including lower back pain, depression, and anxiety. Id. at 519. limitations. However, he should be restricted from more than moderate exertion given Id. at 519.

C. On February 4, 2015, Dr. Khalid filled out a Disability Impairment Questionnaire regarding Velez. See id. at 643. Dr. Khalid diagnosed Velez with back pain, shoulder pain, sleep apnea, artery disease, hypertension, depression, anxiety, and diabetes. See id. at 643. Dr. Khalid noted that these diagnoses were supported by the following clinical and laboratory findings: (1) limited and partial range of motion in shoulders, (2) painful and decreased flexion in spine, (3) tiredness, (4) feeling of depression, and (5) the results of an x-. See id. at 643. Dr. Khalid

noted that Velez is not a malingerer. Id. at 643. Dr. Khalichronic back pain, bilateral shoulder pain, anxiety, and depression. See

id. at 644. or aggravating factors included bending, prolonged standing, and lifting. See id. at 644.

The doctor listed the medications prescribed to Velez as including, inter alia, Tramadol, Meloxicam, Xanax, Lovastatin, Metformin, Glimepiride, Cymbalta, and Ambien. See id. at 644.

Dr. Khalid estimated that, in an eight-hour workday, Velez could perform one hour of seated work, and less than one hour of work that involves standing, walking, or both. See id. at 645. Dr. Khalid indicated that Velez could o]ccasionally up to ten pounds, but not more. Id. at 645. Dr. Khalid also indicated that Velez can

objects, or use his hands or fingers for fine manipulations. Id. at 646. III. PROCEDURAL HISTORY

On November 14, 2013, Velez applied for DIB and SSI benefits, for an alleged disability beginning August 22, 2011. See id. at 322, 326. On January 31, 2014, the SSA denied Velez claims. See id. at 219, 224. On May 8, 2014, the SSA denied his reconsideration request. See id. at 232, 236.

A. Hearing Velez thus requested a hearing before an ALJ. See id. at 241. The ALJ held a hearing on March 17, 2015. See id. at 125. During the hearing, the ALJ asked if Velez would like an interpreter. See id. Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 8 of 39 See id. at 130. An interpreter thus assisted with the hearing. See id. at 130 32.

Velez testified that he sometimes uses a cane to walk, because it is hard for Velez to stand up from sitting down, but that the cane was not prescribed by a doctor. See id. at 137.

Velez testified that he can dress himself. See id. at 139. He testified that he can also groom and bathe because, on certain days, back pain makes it difficult for him to bend. See id. at 139.

Velez testified that he does no household chores Id. at 139 40. Specifically, he stated that he neither cooks nor cleans. See id. at 140. However, he testified that he does do his own laundry. See id. at 140. Velez testified that he has and drives Id. at 140. However, Velez grocery shopping. See id. at 140. Velez stated that he has no pets, hobbies, or special

interests. See id. at 140.

as a result of a 2011 Id. at 141. Velez stated that he suffers from back pain, at an intensity level of seven or eight out of ten. See id. at 142. He testified that the pain usually starts when he returns to an upright position after bending, see id. at 141, and that the pain is worst in the morning, see id. at 142. Velez stated that, from a standing position, he could not bend to touch his toes, and that even bending to touch his knees caused him pain. See id. at 148. He stated that even stooping caused him pain. See id. at 148. Velez mproves his pain, and then stated that even

his pain medication does not help much and that physical therapy did not go well. Id. at 142.

Velez also testified that he suffers from depression, due to losing both his mother and his son within one year. See id. at 143, 151. He stated that he has also been diagnosed with Post Traumatic Stress Disorder. See id. at 151. Velez discussed his intellectual and social abilities and limitations. See id. at 143 46. Velez stated that he See id. at 145.

Velez stated that he cannot walk for more than ten minutes due to pain, that he can only stand up for about half an hour, and that his back was already hurting during the hearing, due to the amount of time he had been sitting. See id. at 147. Velez stated, however, that he could climb ramps or ladders, raise his arms over his head, and raise his arms in front of himself. See id. at 148.

Velez stated that he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten or fifteen pounds. See id. at 146. He said that, if he were to attempt to carry a container of milk, he would need to switch the container back and forth between his hands. See id. at 147. Velez testified that he can use his right hand either for fine motor tasks or to grasp an object, but that he cannot do either with his left hand. See id. at 148 49, 155. Velez stated that he has experienced problems with his Id. at 154. He stated that he had surgery on one of his fingers, and that, since the surgery, he has been unable to close that finger all the way. See id. at 154 55.

Velez stated that his symptoms were aggravated by exposure to cold temperatures and by rain See id. at 149.

B. Decision On April 17, 2015, the ALJ issued a decision. See id. at 60. The ALJ found that Velez was not disabled. See id. at 78. The ALJ found that Velez met the insured status requirements of the Social Security Act and had not engaged in substantial gainful activity since his alleged onset date. See id. at 68 69. The ALJ also found that Velez had the following severe combination of impairments: (1) multi-level lumbar degenerative changes, (2) a disc bulge, (3) obesity, (4) depressive disorder, and (5) post-traumatic stress disorder (PTSD). See id. at 69. However, the ALJ found that the impairment. See id. at 70.

The ALJ found that Velez had the residual functional capacity (RFC) to perform,

medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c) except that the claimant can never climb ladders, ropes, or scaffolds; can occasionally climb stairs or ramps; can occasionally balance, stoop, and crouch; can never kneel or crawl; can [ ] frequently handle and finger with his left hand and has no limitations with the right hand; cannot work with exposure to cold, wetness, or concentrated exposure to pulmonary irritants; can perform simple, routine, repetitive tasks; can sustain concentration, persistence and pace for two hour segments; and can have occasional interaction with the public. Id. at 71 72.

In deciding the RFC, the ALJ See id. at 72 73.

testified that he only speaks and understands some English, it is listed as his primary Id. at 73 (citing id. at 521 71).

The ALJ allegations of disabling Id. at 74. According to the ALJ, such objective id. at 73 (citing id. at 462), (2) an

id. at 73 74 (citing id. at 460), (3) the fact that,

was again released to return to work as a landscaper without restrictions by his id. at 74 (citing id. at 459), and (4) an x-ray no evidence of spondylosis or spondylolisthesis; marginal vertebral osteophytes at all levels; no evidence of compression fracture; normal transverse and spinous processes; and normal pedicles and interpedic id. at 74 (citing id. at 726).

The ALJ stated that examinations of record, which consistently report that he retains normal range of motion, norm Id. at 74 (citing id. at 518 19, 523, 528, 533, 538, 542, 546, 731, 737, 747, 752, 758, 783, 786).

about 10 minutes, he has reported to his providers that he walks on a regular basis for Id. at 74 (citing id. at 521 71, 719 67). The ALJ despite his testimony to the contrary, he reported being independent in all areas of daily

Id. at 74 (citing id. at 730).

The ALJ found that certain medical evidence, including evidence that

testimony at the hearing that he can perform only limited lifting and that he cannot sit, Id. at 74. The ALJ stated cannot sit, stand or walk for extended periods, this limitation is not reported in the

Id. at 74. Based on Id. at 74.

In deciding the RFC, t to the opinion treating physician, Dr. Khalid, because the ALJ found Id. at 75. The ALJ explain minimal weight as follows:

As the doctor merely completed a checklist form, it is unclear how he reached his conclusions. The doctor simply checked marked boxes indicating the claimant had limitations that would increase the likelihood of claimant obtaining benefits but did not explain why those limitations were chosen. In particular, he gave no examples of objective findings, documented symptoms, or other medical evidence to support his conclusions. Indeed, it appears he relied upon the -imposed limitations as a basis for the opinion. Moreover, inconsistent with his own treatment notes, which as noted [earlier in the ALJ decision] show essentially normal physical examination findings and report that the claimant presents for treatment in no acute distress (Exhibit 5F [Tr. at 521 71]). the other evidence of record, which also reports essentially normal physical examinations. Id. at 75.

The ALJ then found that, while Velez could no longer perform any of his past work, other jobs existed for Velez in significant numbers in the national economy. See

id. at 77. On December 29, 2015, the SSA review the ALJ decision. See id. at 4.

IV. LEGAL STANDARD

in any substantial gainful

lasts at least a year. 42 U.S.C. § 423(d)(1). to do his previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national

205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate

Zambrana v. Califano Commissioner of Social Security as to any fact, if supported by substantial evidence,

[are] co de novo determination of whether a claimant is disabled. See Human Servs., 906 F.2d 856, 860 (2d Cir. 1990); , No. 15-

CIV-5356 (ER) (JCF), 2017 WL 65836, at *7 (S.D.N.Y. Jan. 4, 2017). Rather, the SSA applied the correct legal principles in reaching its conclusion, and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

V. DISCUSSION

A. Treating Physician Rule Velez argues that the ALJ erred in giving of See Mem. in Supp. of Mot. for J. at 2. The court agrees, because the ALJ failed to identify a valid reason to decline to give controlling weight.

phys Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008). SSA regulations give the opinion of a treating physician that opinion is -supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case § 404.1527(c)(2); 416.927(c)(2); see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015). As Colvin for declining to give controlling weight to a treating physician opinion. See Mot. to Affirm at 3 (citing Sanders v. Comm r of Soc. Sec., 506 F. App x 74, 77 (2d Cir. 2012)).

Here, the ALJ declined to g See Tr. at 75. Construed broadly, t (1) that Dr. -supported, and (2) that the opinion was inconsistent with other evidence. See id. at 75.

1. Support The ALJ -supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§

404.1527(c)(2); 416.927(c)(2). However, the ALJ decision says

[t]he doctor simply checked marked boxes indicating the claimant had limitations that would increase the likelihood of claimant obtaining benefits but did not explain why those limitations were chosen. In particular, he gave no examples of objective findings, documented symptoms, or other medical evidence to support his conclusions. Indeed, it appears he - imposed limitations as a basis for the opinion. Tr. at 75. A lack of support is a valid reason to decline to give controlling weight to a treating physician opinion. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). The court thus concludes that the ALJ has, not entitled to controlling weight for this reason. Johnson, 817 F.2d at 985.

was unsupported by valid diagnostic techniques Id. at 985. not

Id. at 985.

See - See Tr. at 643.

While some of these findings such as the finding that Velez experienced pain and depression Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 16 of 39 interviews with his patient should be trusted as a form of clinical diagnostic technique. Id. at 643. edically acceptable clinical and laboratory diagnostic techniques include consideration of a patient s report of complaints, or history, as an essential diagnostic tool. Burgess v. Astrue, 537 F.3d at 128 (internal quotation marks and brackets omitted). Because s own subjective complaints or report, an ALJ errs where the ALJ treats a medical reliance on a subjective complaints opinion lesser weight. Kotkowicz v. Colvin, No. 13-CV-6472 (CJS),

2014 WL 3819213, at *8 (W.D.N.Y. Aug. 4, 2014). notes discuss an additional piece of diagnostic support for opinion, beyond , namely, an MRI reporting a bulging disc. See id. at 552.

Dr. -hour workday, Velez could

perform one hour of seated work, and less than one hour of work that involves standing, walking, or both, see id. at 645, is supported by (1) the multitude of notes regarding see id. at 526, 544, 551 54, 558, 740, 761, which is aggravated by, inter alia id. at 526, and (2) the note describing right foot hurt when he walked, and stating that the foot problem had persisted for two weeks, see id. id. at 645, is supported

by (1) the doctor . id. at

id. manipulations, id. otes regarding

chronic back pain, see, e.g., pain, see, e.g., id. id. at 742, (4)

id. at 538, (5) complained of finger numbness, see id. at 564, (6) complained of severe arm pain, lasting three weeks, at an intensity level of ten out of ten, see id. at 565, (7) complained of wrist pain, at an intensity level of six out of ten, see id. id. at 761, and (9) suffered from a reduced range of

motion in his shoulders, see id. at 764. Thus, substantial evidence does not exist for -supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). This implicit finding thus does not provide a basis upon which this court refusal to afford the treating physician opinion controlling weight.

Colvin cites Camille v. Colvin , as a decision permitting an ALJ to discount a treating physician opinion that lacked a narrative explanation. In Camille - Id. at

27. Here, however, the Disability Impairment Questionnaire that Dr. Khalid completed did not request a narrative explanation for each opined limitation. See Tr. at 645 47 (not requesting narrative explanation for number of hours patient can perform seated or reach, handle, or finger). When the Questionnaire did request a narrative explanation,

Dr. Khalid usually provided one. See id. at 647 (explaining that emotional factors affect Velez because, inter alia to his medical conditio but see id. at 646 (failing to provide narrative explanation for how symptoms will increase if Velez is placed in a competitive work environment). The court concludes that Camille is not on point.

In addition to implicitly finding that the treating physician opinion - supported by medically acceptable clinical and laboratory diagnostic techniques, C.F.R. §§ 404.1527(c)(2); 416.927(c)(2), t is [ ] without substantial support from the other evidence of record Tr. at 75. Dr.

opinion need not have id. at 75, however, to be controlling. To the contrary, opinion is controlling as long as it both (1) is -supported by medically acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other substantial evidence in see also Lesterhuis, 805 F.3d at 88.

2. Consistency The ALJ also s opinion controlling weight in part because the ALJ found in the case Record, see id. at 521 67, 735

opinion and his treatment notes would be a legally valid reason for the ALJ not to give pinion controlling weight, see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Lesterhuis, 805 F.3d at 88. Wmedical source statement conflict[s] with his own treatment notes, the ALJ [is] not required to afford Cichocki v. Astrue, 534 F. App x 71, 75 (2d Cir. 2013). The ALJ controlling weight for this reason. Johnson, 817 F.2d at 985.

Id. at

985. not al evidence. Id. at 985.

The ALJ found notes claimant presents for treatment in no acute distress. Tr. at 75. In support of his

statement show findings no acute distress, . Id. at 75. Exhibit 5F spans

pages 521 571 of the Certified Transcript of the Record, and contains many of Dr.

. 3

See id. at 521 67. The court has thoroughly examined this cited portion of the record, see id. at 735 67, to determine whether statement is supportable.

The court has determined that a modicum of evidence supports statement essentially normal physical examination findings. Id. at 75. Specifically, during two of the more recent office visits, normal results. See id. at 752, 758. While the ALJ did not cite the notes from these

particular visits in support of his statement, id. at 75, the court treats the notes from Additionally, Dr. Khalid strength, and stability in all extremities with n See id. at 523, 533,

542, 546, 737; see also id. at 538 (finding normal range of motion, muscle strength, and stability in all extremities with no pain, except that the right hand middle finger had a painful range of motion). Notes from most of these occasions are within the portion of the record that the ALJ cited. See id. at 75 (citing Exhibit 5F, which includes, inter alia, id. at 523, 533, 542, and 546). Despite this number of notations indicating that physical examinations of most recent office visit notes show abnormal physical examination findings, see id. Lumbar spine Range of motion: moderate pain [with] motion. Shoulder Left: Range of motion: mildly reduced [range of motion], Right: Range of motion: mildly reduced [range

3 Exhibit 5F also includes four pages of treatment notes signed by a provider other than Dr. Khalid, see id. at 561 62, 568 69, and a two-page consultation report, see id. at 570 71 remaining treatment notes are contained within pages 735 67 of the Certified Transcript of the Record.

as do notes from two other relatively-recent visits, id. ); see id. at

. Notes from these most recent visits are outside of the portion of the record that the ALJ cited t regarding physical examination findings. See id. at 75 (citing only Exhibit 5F, which does not include Tr. at 742, 747, or 764).

Additionally, and difficulties with movement, although complaints to the doctor, rather than physical examination results. See, e.g., id. at 735 ] bilateral pain and swelling on both legs and hands . . . . [N]o strength i id. at 736 (listing back pain, joint pain, and joint swelling as symptoms); id. hand pain persist . . . [C]urrent meds not helping.); id. foot pai ); id. at 761 throbbing. Symptoms are aggravated by bending, changing positions and lifting; Patient

reports severe pain last 2 3 days . . . [and] also [complains of bilateral] shoulder pain[ and] difficulty making a fist. ); id. id. at 538 (stating

motion); id. at 544 ; id. at 550 (stating that Velez . The notes that describe Velez as suffering from pain and difficulties with movement fall both within, and outside of, the portion of the record cited by the ALJ Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 22 of 39 physical examination findings. See id. at 75 (citing Exhibit 5F, which includes Tr. at 526, 538, 544, and 550, but not Tr. 735 36, 740, 744, or 761). treatment notes themselves could be considered inconsistent in that they both show some normal physical examination findings, see id. at 752, 758, 523, 533, 542, 546, 737, and also report pain and other physical problems, see id. at 526, 538, 544, 550, 735 36, 740, 742, 744, 761, 747, 764 the court acknowledges that some evidence exists for statement Id. at 75. However, in light of the

prevalence of comments problems including persistent notations regarding back pain and associated issues, see id. at 526, 528, 544 46, 551 54, 558, 740, 742, 761, 764 , the court cannot find substantial evidence findings make See

id. at 75. Furthermore, in the portion l physical examination findings statement, id. at 75 (citing id. at 521 71), Dr. Khalid repeatedly used a computerized results which included only the fol

and id. at 523, 528, 533, 538,

542, as well as, on one occasion, (10 , 1 2) 47. In the cited portion of the record, whenever Dr. Khalid used this particular computerized always [n]ormal range of motion, muscle strength, and stability in all

extremities with no pain on inspection language. Id. at 523, 528, 533, 538, 542, 546 (emphasis added). results frequently exclude any findings at all regarding Vele his back. Instead of recording Dr. Khalid frequently recorded back-related findings in other sections of his notes. See,

e.g., id. at 526 27 , sections of treatment notes section). On other occasions recorded within the portion of the record that the ALJ

cites, Dr. Khalid reported physical examination results by using a check-box form, which . See id. at 548 567. When Dr. Khalid used the check-box form, the doctor simply indicated that the physical exam with regard to oskeletal system was either (1) normal, on several occasions, see id. at 548 49, 551 53, 555 57, 559 60, 563 64, 566, or (2) abnormal, on a few other occasions, see id. at 550, 554, 558, 565, 567. Even on certain occasions when Dr. Khalid indicated via check mark that was normal, , id. at 552, mentioned a - id. at 553, or indicated that Velez had complained of chest pain which radiated to his shoulder and back, id. at 556. Thus, while some evidence statement normal physical examination findings id. at 75

notes inconsistent with opinion.

Furthermore, the court certainly cannot find substantial evidence for the assertion that Id. at 75. The most recent treatment notes, which are outside of the portion of the record cited by the ALJ, describe back pain with a severity level of eight out of ten, as well as shoulder pain, difficulty making a fist, and depression. See id. at 761, 764. Various treatment notes have also described that, at some point, Velez experienced, inter alia, (1) weakness in hands, so severe id. at 735, (2) persistent and worsening back pain at an intensity level of seven out of ten, see id. at 526 28, 544 46, 553, (3) depression so severe that it included suicidal thoughts, see id. at 555, (4) arm pain at a severity level of ten out of ten, see id. at 565, (5) foot and ankle pain, see id. at 745 47, and (6) knee pain, see id. at 550. These descriptions fall both within, and outside of, the portion of the record that the ALJ cited to support his Id. at 75. For these reasons, a finding of .

More broadly, the court cannot find substantial evidence to support overall conclusion that the treating opinion was inconsistent with his treatment notes. See id. at 75. Specifically, the court cannot find evidence in Dr. in an eight-hour workday, Velez can perform only one hour of seated work, and less than one hour of work that involves standing, walking, or both, (2) Velez can only carry up to ten pounds, but not more, and (3) Velez can

fingers for fine manipulations. Id. at 645 46. that opinion

was 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2), namely, his own treatment notes, thus does not provide a basis upon which to affirm the denial of controlling weight opinion.

Because neither (1) -supported by medically acceptable clinical and laboratory diagnostic

nor (2) are supported by substantial evidence, the ALJ failed to identify a good reason to decline to give opinion. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). Because the ALJ failed to ide good reason Sanders x at 77, to decline to give

more than See Mem. in Supp. of Mot. for J. at 5.

B. Credibility Evaluation Velez argues that See Mem. in Supp. of Mot. for J. at 6. Because the court must remand for proper application of the treating physician rule, the court need not decide determination constitutes a basis for remand. Nevertheless, on remand, the ALJ should

reconsider its credibility determination in light of this Ruling.

ion of the [Commissioner], not the reviewing courts, to resolve Gates v. Astrue, 338 F. App (brackets omitted) (quoting Aponte

v. Sec y, Dep , 728 F.2d 588, 591 (2d Cir. 1984)). In particular, the ALJ is required to assess the credibility of the plaintiff s subjective complaints. See 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4). As a fact-finder, an ALJ is free to accept or reject testimony. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988). Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable. Pietrunti v. Dir., Office of Workers Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (internal quotation marks omitted).

finding that the witness is not credible must nevertheless be set forth with sufficien Williams, 859 F.2d at 260 61. An ALJ s failure to provide specific reasons for finding a

claimant's testimony not credible is a sufficient basis for reversal and remand to the Administration. See id. at 260 61. Further, whatever findings the ALJ makes must be consistent with the medical and other evidence. Put another way, an ALJ must assess subjective evidence in light of objective medical facts and diagnoses. Id. at 261 (citation omitted). However, [the SSA] will not reject statements about the intensity and persistence of [his] pain or other symptoms or about the effect [his] symptoms have on [his] ability to work solely because the available objective medical evidence does not substantiate [his] statements 20 C.F.R. § 404.1529(c)(2); see also 20 C.F.R. § 416.929(c)(2).

Here, the ALJ found Velez for several reasons. See Tr. at 73 74. The ALJ explained his reasons in detail, giving citations to relevant evidence in the

record. See id. at 73 74. As a preliminary matter, the court thus finds that the ALJ has

set forth finding t with sufficient specificity to permit intelligible plenary review of the record. Williams, 859 F.2d at 260 61. The level of specificity is thus not a basis for reversal here. See id. at 260 61. The court discusses each of the ALJ reasons in turn.

1. English Proficiency First, the ALJ found a contradiction -proclaimed low level of English proficiency and the higher level of proficiency implied by the notations See Tr. at 73 (citing Tr. at 521 71).

During the hearing, Velez had accepted the ALJ offer of an interpreter, stating that he [s English,] See id. at 130. Id. at 526, 531, 536, 540, 544. The ALJ thus had a valid Id. at 73.

does not speak English at home, see Tr. at 526, and

facts are insufficient to make the ALJ Pietrunti, 119 F.3d at 1042.

Furthermore, as Colvin explains, see see 20 C.F.R. §§ 404.1564(b)(5), communicate in Engli The

ALJ thus had a good reason to view an apparent contradiction on this topic with

skepticism. any 8 (emphasis added). The ALJ nonetheless could have reasonably concluded that, by stating that Velez [English], Velez underrepresented a legally-significant vocational ability.

For these reasons, the aspect of the ALJ that relied on -related representation was not patently unreasonable. Pietrunti, 119 F.3d at 1042.

2. Back Pain Second, the ALJ Tr. at 74.

he suffers from back pain at an intensity level of seven or eight out of ten, see id. at 142, that the pain usually starts when he returns to an upright position after bending, see id. at 141, that the pain acts up whenever he touches his knees and that he cannot touch his toes, see id. at 148, and that even stooping hurts him, see id. at 148.

the fact that orthopedist released him to return to work after his accident. See id. at 73 (citing id. at 462). Indeed, the Treatment Report that the ALJ cites demonstrates that Velez Id. at 462. The Id. at 462. as evidence that his back problems are relatively mild. See id. at 73 74. The Results state, inter alia and that Velez

has only ; although Velez has . Id. at 460 62. The ALJ then cites a

Id. at 459. The ALJ thus reasonably could have extrapolated from this form that Velez can perform landscaping work including any required bending or stooping despite his back condition. Finally, the ALJ correctly describes an x-ray as revealing, inter alia, evidence of spondylosis or spondylolisthesis; . . . no evidence of compression fracture;

normal transverse and spinous processes; and normal pedicles and interpediculate distances. Id. at 74 (citing id. at 726).

The court concludes that the ALJ Tr. consistent

with the medical [ ] evidence. Williams, 859 F.2d at 261. While the not reject statements about the intensity and persistence of [his] pain effect thereof, solely because the available objective medical evidence does not

substantiate [his] statements 20 C.F.R. § 404.1529(c)(2); 20 C.F.R. § 416.929(c)(2) (emphasis added), the ALJ apparent misrepresentation about his English proficiency decreased credibility.

For these reasons, the ALJ discrediting of Ve representations regarding the disabling effects of back pain patently unreasonable. Pietrunti, 119 F.3d at 1042. Nevertheless, on remand, the ALJ should consider whether reweighing leads the ALJ to representations regarding back pain. As discussed above, see supra at 7 8, Dr. Khalid

opined that Velez suffers from painful and decreased flexion in his spine, see Tr. at 643, that chronic back pain is , id. at 644, and that bending precipitates or aggravates the pain, see id. at 644.

3. Extremities Third, t testimony was examinations of record, which consistently report that he retains normal range of motion, normal sensation, and normal strength in all extremities Tr. at 74. In support of this statement, the ALJ cited 8, 13, 18, 22, 26; citations make up pages 518 19, 523, 528, 533, 538, 542, 546, 731, 737, 747, 752, 758, 783, and 786 of the Certified Transcript of the Record. The court has thoroughly examined these cited pages, to normal range of motion, normal sensation, and normal strength in all

Id. at 74.

appear most relevant to the health of Velez stated that he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten or fifteen pounds. See id. at 146. The court notes that such difficulties could theoretically be caused by arms, although such difficulties could also theoretically be Second, Velez testified that, if he were to attempt to carry a container of milk, he would need to switch the container back and forth between his hands. See id. at 147. Third, Velez testified that he cannot use his

left hand for fine motor tasks, nor can he grasp objects with his left hand, and that he cannot fully close one finger on his left hand. See id. at 148 49, 154 55.

As the ALJ noted, s extremities produced mostly normal results. See id. at 518 19, 523, 528, 533, 542, 546, 737, 752, 758, 786. These normal extremity physical examination results are reported on most of the pages cited by the ALJ for statement regarding extremities. See id. at 518 19, 523, 528, 533, 542, 546, 737, 752, 758, 786. However, one physical examination found that , id. at 538, one found that he , id. at 747, and one found that he , id. at 783. 4

These physical examination results are reported on pages among those

While the ALJ id. at 74, would appear to be an overstatement, the physical examination results could, viewed in a vacuum, be construed as supporting a finding that Velez exaggerated the problems with his extremities. However, Dr. Khalid has opined that (1) Velez can only or carry up to ten pounds, and not more, id. at 645, and (2) Velez can only turn, or twist objects, or use his hands or fingers for fine manipulations, id. at 646. As discussed above, the ALJ has failed to identify a proper reason to deny weight. controlling weight on remand, the ALJ thus should no longer discredit

4 Another physical examination result stated that Velez had impairments including reduced reduced reduced range of motion, although these Id. at 731. This result t regarding extremities.

representations which were consistent with opinion. professed difficulty with lifting and carrying could be a symptom of his back problems, and not of problems with his extremities. The court thus notes that the reference

normal range of motion, normal sensation, and normal strength in all extremities with no pain Tr. at 74 (emphasis added), cannot provide a reason to discredit testimony regarding his difficulty with lifting and carrying.

4. Daily Living Fourth, the ALJ found a February 27, 2015 Physical Therapy Adult Evaluation, with regard to whether Velez was Id. at 74 (citing id. at 730). The ALJ did not See id. at 74 (stating only that the Evaluation

At the hearing, grooming and bathing himself, because, on certain days, back pain makes it difficult for him to bend. See id. at 139. The Physical Therapy Adult Evaluation states that Velez can bathe independently. Id. at 730. The court does not see an inherent contradiction between mony regarding bathing and the Evaluation, because an individual very well could be able to bathe himself, see id. at 730, despite finding the task slightly difficult, see id. at 139. For instance, a person who felt pain while bending down to bathe his feet, or who found it difficult to reach certain areas of his body without use of a long- handled sponge or a removable shower head, might honestly Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 33 of 39 id. at 139, but he would not necessarily need to resort to s help in this very personal activity. The court notes that, bending Id. at 526. However, the Physical Therapy Adult

Evaluation reasonably could have led the ALJ to conclude that any difficulty Velez has in grooming himself must be relatively minor.

cleans. Id. at 139 40. The Physical Therapy Adult Evaluation, however, does not Id. at 730. Thus, the s ability to do chores.

On remand, the ALJ might reconsider his implicit finding that Velez misrepresented his level of independence in areas of daily living. However, the ALJ need not disturb his implicit finding that Velez is, in fact, able to bathe independently, as Johnson, 817 F.2d at 985.

5. Walking, Lifting, Sitting, Standing Fifth difficulties walking, lifting, sitting, and standing.

The ALJ for about 10 minutes, Tr. at 74; see also Tr. at 147 (testifying that Velez cannot walk for more than ten minutes due to pain), and notat which, according to the ALJ, indicate that he walks on a regular basis for exercise and that he exercises daily id. at 74 (citing id. at 521 71, 719 67).

notes [e]xercise includes walking, id. at 526 an instruction to , id. at 534. However, other medical notes within the portion of the record cited as support for the statement that Velez walks regularly and exercises daily state that Velez complains of pain in his right foot when he walks, see id. at 745, and that the doctor believed daily exercise would improvsee id. at 724, thereby indicating that Velez presumably did not exercise every day. Furthermore, the court notes that there is no inherent contradiction between walking daily and only being able to walk for ten minutes Velez very well could take short walks daily.

The ALJ also found that testimony at the hearing that [Velez] can perform only , discussed above, discussed above, (3) the evidence,

discussed above, regarding walking habits, and (4) the fact that . . report that he presents for examination in no acute distress ([citing 635, 637 38)]. Id. at 74. A note from an orthopedic evaluation indeed states that Velez presented Id. at 636.

The ALJ also found that, while Velez and or walk Id. at 74; see also id. at 147 (testifying that Velez can only stand for about half an hour, and that sitting at the hearing hurt him). The medical record, however, includes the following which indicate limitations in sitting, standing, or walking: Regarding sitting and standing, a note states that are aggravated by Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 35 of 39 Id. at 526. Regarding walking, notes state that (1) Velez presented with right knee pain, which had caused him difficulty walking for at least a month, despite Velez not having experienced trauma to the area, see id. at 550, and (2) Velez complained of pain in his right foot when he walked, see id. at 745.

walking, lifting, sitting, and standing were not credible, for the following reasons: (1)

T egarding his ability to walk, . (2) T finding regarding ing, sitting, and standing depended in part on extremities. As discussed above, the ALJ should reevaluate after reweighing the Dr. Khalid opinion. (3) T ng, lifting, sitting and standing. (4) The finding that the medical record does not report a limitation id. at 74, is inaccurate.

6. Sixth, influenced the ALJ in dis Id. at 74 (citing Tr. at 516 20). The ALJ recounted, correctly, retained full lumbar range of motion and full range of motion in all extremities and joints. Additionally, claimant retained full, 5/5 strength in all extremities and full grip strength Id. at 74 (citations omitted) (citing id. at 518 19).

The court agrees that the ALJ has identified portions of which appear to contradict portions of testimony. See id. at 146 (testifying that

Velez can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds); id. at 147 (testifying that he would need to switch a carton of milk back and forth between his hands); id. at 148 49, 155 (testifying that he cannot use his left hand for fine motor tasks, nor to grasp an object). 5 provides some support for those portions of with . See id. at 645 (opining that Velez can only

or carry up to ten pounds, but not more); id. at 646 (opining that Velez can only manipulations).

the ALJ should reconsider opinion. hen a treating physician s opinion is entitled to controlling weight, the ALJ must defer to the physician s medical opinions about the nature and severity of an applicant s impairments, including symptoms, diagnosis and prognosis, what an applicant is capable of doing despite the impairment, and the resulting restrictions. Ditsworth v. Colvin, 982 F. Supp. 2d 935, 945 (N.D. Iowa 2013) (citing Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005) The Commissioner defers to a treating physician s medical opinions about the nature and severity of an applicant s impairments, including symptoms, diagnosis and prognosis, what an applicant is

5 can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds, see id. at 146, is not necessarily in opinion that Velez retained full strength in all extremities, see id. at 74, because

capable of doing despite the impairment, and the resulting restrictions. For instance, where a treating physician opined that a claimant suffered from marked limitations in certain areas, a court in the Northern District of New York held that, to give the treating ] would result in a finding [by the ALJ] of marked in those areas. Tim v. Colvin, No. 6:12-CV-1761 (GLS) / (ESH), 2014 WL 838080, at *8 (N.D.N.Y. Mar. 4, 2014).

Here, to defer to carry up to ten pounds, but not more, and objects, or use his hands or fingers for fine manipulations, Tr. at 645 46, (1) would mean crediting he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds, id. at 147, and (2) could that he cannot use his left hand for fine motor tasks, nor to grasp an object, id. at 148 49, 155. On remand, the SSA should thus reconsider the portion of its credibility determination that relied on Dr.

VI. CONCLUSION

For the foregoing reasons, Velez No. 16) is GRANTED. Motion to Affirm the Decision of the Commissioner (Doc. No. 20) is DENIED. The case is remanded to the agency for further proceedings in which the ALJ weighs the evidence in a manner that is consistent with this decision, and issues a new decision.

SO ORDERED. Dated this 15th day of February, 2017, at New Haven, Connecticut.

/s/ Janet C. Hall . Janet C. Hall United States District Judge

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT ANGEL LUIS VELEZ SANTIAGO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

CIVIL ACTION NO. 3:16-cv-338 (JCH)

FEBRUARY 15, 2017

RULING RE: CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS (Doc. No.

16) AND TO AFFIRM THE DECISION OF THE COMMISSIONER (Doc. No. 20) I. INTRODUCTION

The plaintiff, Velez , filed this administrative appeal pursuant to section 405(g) of title 42 of the United States Code. See Complaint (Doc. No. 1) ¶ 1. Velez asks this court to reverse the final decision of the Commissioner of Velez See Compl. ¶¶ 12 13, Prayer for Relief; see also Mot. for J. (Doc. No.

16). Velez argues that (1) the Administrative Law Judge (ALJ) afforded insufficient weight to the opinion of Velez and (2) the ALJ improperly evaluated . See Mem. in Supp. of Mot. for J. (Doc. No. 17) at 1, 6. Colvin moves the court to affirm the final decision. See Mot. to Affirm (Doc. No. 20).

For the reasons that follow, the court GRANTS Velezfor Judgment on the Pleadings (Doc. No. 16), DENIES 0), and REMANDS this case to the agency for proceedings consistent with this Ruling.

II. MEDICAL BACKGROUND 1

Velez was born in 1959. See 12-3 to 12-9) at 135. He has a seventh grade education. See id. at 137. In the past,

he worked as a firefighting equipment tender, a landscape laborer, and a commercial cleaner. See id. at 159.

A. Velez , at Southwest Community Health Center 2

state, inter alia, the following: On June 2, 2009, Velez complained of wrist pain, radiating to his left shoulder. See id. at 567. The pain was at an intensity level of six out of ten. See id. at 567. Dr. Khalid diagnosed Velez with wrist and shoulder pain, and also recorded diagnoses of anxiety and hypertension. See id. at 567. visits reflect ongoing diagnoses of anxiety and hypertension. See id. at 521 61, 735 62. On August 17, 2009, Velez no longer had wrist pain. See id. at 566. On October

1 The court takes the medical background from the (Docs. No. 12-3 to 12-9) and . The court had ordered the make a good faith attempt to stipulate to the facts. im, on the due date, that she had not yet reviewed his proposal. See Mot. for Extension (Doc. No. 14). Extension of Time, see id., which the court granted, see attorney ha stipulation because she would be on vacation at the time of the new due date. See Facts at 2.

n the event that a stipulation of facts cannot be reached, Plaintiff s memorandum shall contain a medical chronology, in narrative form, with record citations, to which Defendant shall respond, either agreeing with the chronology as presented or indicating any material omissions or areas of disagreement, again with record citations. See to the Statement of Facts as ordered.

2 See Tr. at 548 60. name on the February 27, 2015 Physical Therapy Adult Evaluation. See id. at 728.

27, 2009, however, Velez complained of severe pain in his arm, which had lasted three weeks. See id. at 565. The pain was at an intensity level of ten out of ten. See id. at 565. Dr. Khalid diagnosed shoulder pain. See id. at 565. On January 27, 2010, Velez complained of chest pain, shoulder discomfort, and finger numbness. See id. at 564. at an intensity level of three out of ten. See id. at 562. Dr. Khalid diagnosed chest pain. See id.at 562. On March 29, 2010, Velez had no pain. See id. at 563.

On October 27, 2010, Velez complained of depression, anxiety, and stress. See id. at 559. His mother had died a month before. See id. at 559. Dr. Khalid diagnosed depression. See id. an ongoing diagnosis of depression. See id. at 521 55, 735 61.

On January 27, 2011, Velez complained of back pain and muscle stiffness. See id. at 558. Dr. Khalid diagnosed back pain. See id. at 558. On July 12, 2011, Velez complained of chest pain, radiating to his right shoulder and the right side of his back. See id. at 556. The pain had lasted for a week and was at an intensity level of seven out of ten. See id. at 556. Velez also was experiencing neck stiffness. See id. at 556. Dr. Khalid diagnosed neck and shoulder pain. See id. at 556.

On September 12, 2011, Velez reported depression and suicidal thoughts as a result of his he was not in physical pain. See id. at 555.

On October 3, 2011, Velez reported a recent work injury to his back, and his back pain was of an intensity level of five or six out of ten. See id. at 554. Velez continued to complain of depression. See id. at 554. Dr. Khalid again diagnosed back pain. See id.

diagnosis. See id. at 521 53, 735 62. On December 2, 2011, Velez was experiencing chronic back pain with an intensity level of six or seven out of ten, and also complained of anxiety. See id. at 553. On February 2, 2012, Velez stated that he was trying to cope with depression. See id. at 552. Velez also had chronic back pain with an intensity level of three out of ten, and an MRI reported a bulging disc. See id. at 552. On May 2, 2012, Velez presented with anxiety and depression, stating that at times, he was unable to get out of bed. See id. at 551. He also complained of chronic back pain, at an intensity level of three out of ten. See id. at 551.

On August 29, 2012, Velez presented with right knee pain, which had caused him difficulty walking for the past month, despite Velez not having experienced trauma to the area. See id. at 550. Velez also continued to complain of anxiety. See id. at 550. Dr. Khalid diagnosed knee pain. See id. at 550.

On May 6, 2013, Velez experienced back pain at an intensity level of seven out of ten, which was aggravated by bending and twisting. See id. at 544 ] Id. at 546.

On September 3, 2013, Velez was not in pain and again Id.

at 540 42. Velez was experiencing occasional symptoms of anxiety, however. See id. at 540. On December 3, 20 . See id. at 536. Velez still was not in pain, and still Velez

experienced mild . Id. at 536 38. On

December 10, 2013, Velez was not in pain, and Id. at 533.

On February , however, and occurred Id. Id. changing positi Id. at 526. The

back pain once again was at an intensity level of seven out of ten. See id. at 528. Id. at 526.

On March 10, 2014, Velez was no longer in pain, and once again range of motion, muscle strength, and stability in all extremities with no pain on Id. at 522 23.

On May 9, 2014, however, Velez presented with bilateral pain and swelling on both legs and hands, which had lasted for the past three weeks. Id. at 735. Velez had no strength in his hands he could not even hold a gallon of milk. Id. at 735. Velez also complained of pain on the right side of his head. See id. at 735. Confusingly, however, Dr. Khalid noted See id. at 737.

See id. at 740. his spine. See id. at 742. middle finger on his right hand was lock[ing] up. Id. at 742. On August 19, 2014, Velez complained that his right foot hurt when he walked. See id. at 745. Velez had experienced this foot problem for the last two weeks. See id. at 745. Velez felt mild pain when he moved his right foot or ankle. See id. at 747.

On October 14, 2014, and again on January 6, 2015, Velez no longer had any pain, and a physical examination of produced normal results. See id. at 752, 758.

On February 3, 2015, however, Velez had back pain with a severity level of eight out of ten. See id. at 761, 764. The problem fluctuated, but occurred persistently. See id. Id. at 761. Symptoms Id. at 761. The pain had lasted for the past two to three days. See id. at 761. Velez also complained of [with his] left hand after surgery for [his] trigger finger, feel[ing] depressed, [and being] Id. at 761. Velez experienced moderate pain when he moved his lumbar spine, and had a mildly reduced range of motion in his shoulders. See id. at 764.

state that p]rimary language is English, id. at 526, 531, 536, 540, 544, but that his [l]anguage spoken at home is [Castilian] Spanish id. at 526.

B. examined Velez, at the request of the Social Security Administration (SSA). See id. at 516 20. Dr. Goccia wrote Id. at 516. Dr. Id. at 517. Dr. Goccia described

Id. at 518. Dr. Goccia stated that Velez

had a normal gait had a normal stance, Id. at 518.

Dr. Goccia described the results of a musculoskeletal exam by stating, inter alia, cervical and lumbar spine both showed and that Velez had a full range of motion, bilaterally, in his shoulders, elbows, forearms, wrists, hips, knees, and ankles. Id. at 518.

Dr. Goccia also stated that Velez had a strength level of five-out-of-five in his

he had a grip strength level of five-out-of-five, bilaterally. Id. at 519.

Dr. Goccia diagnosed Velez with conditions including lower back pain, depression, and anxiety. Id. at 519. limitations. However, he should be restricted from more than moderate exertion given Id. at 519.

C. On February 4, 2015, Dr. Khalid filled out a Disability Impairment Questionnaire regarding Velez. See id. at 643. Dr. Khalid diagnosed Velez with back pain, shoulder pain, sleep apnea, artery disease, hypertension, depression, anxiety, and diabetes. See id. at 643. Dr. Khalid noted that these diagnoses were supported by the following clinical and laboratory findings: (1) limited and partial range of motion in shoulders, (2) painful and decreased flexion in spine, (3) tiredness, (4) feeling of depression, and (5) the results of an x-. See id. at 643. Dr. Khalid

noted that Velez is not a malingerer. Id. at 643. Dr. Khalichronic back pain, bilateral shoulder pain, anxiety, and depression. See

id. at 644. or aggravating factors included bending, prolonged standing, and lifting. See id. at 644.

The doctor listed the medications prescribed to Velez as including, inter alia, Tramadol, Meloxicam, Xanax, Lovastatin, Metformin, Glimepiride, Cymbalta, and Ambien. See id. at 644.

Dr. Khalid estimated that, in an eight-hour workday, Velez could perform one hour of seated work, and less than one hour of work that involves standing, walking, or both. See id. at 645. Dr. Khalid indicated that Velez could o]ccasionally up to ten pounds, but not more. Id. at 645. Dr. Khalid also indicated that Velez can

objects, or use his hands or fingers for fine manipulations. Id. at 646. III. PROCEDURAL HISTORY

On November 14, 2013, Velez applied for DIB and SSI benefits, for an alleged disability beginning August 22, 2011. See id. at 322, 326. On January 31, 2014, the SSA denied Velez claims. See id. at 219, 224. On May 8, 2014, the SSA denied his reconsideration request. See id. at 232, 236.

A. Hearing Velez thus requested a hearing before an ALJ. See id. at 241. The ALJ held a hearing on March 17, 2015. See id. at 125. During the hearing, the ALJ asked if Velez would like an interpreter. See id. Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 8 of 39 See id. at 130. An interpreter thus assisted with the hearing. See id. at 130 32.

Velez testified that he sometimes uses a cane to walk, because it is hard for Velez to stand up from sitting down, but that the cane was not prescribed by a doctor. See id. at 137.

Velez testified that he can dress himself. See id. at 139. He testified that he can also groom and bathe because, on certain days, back pain makes it difficult for him to bend. See id. at 139.

Velez testified that he does no household chores Id. at 139 40. Specifically, he stated that he neither cooks nor cleans. See id. at 140. However, he testified that he does do his own laundry. See id. at 140. Velez testified that he has and drives Id. at 140. However, Velez grocery shopping. See id. at 140. Velez stated that he has no pets, hobbies, or special

interests. See id. at 140.

as a result of a 2011 Id. at 141. Velez stated that he suffers from back pain, at an intensity level of seven or eight out of ten. See id. at 142. He testified that the pain usually starts when he returns to an upright position after bending, see id. at 141, and that the pain is worst in the morning, see id. at 142. Velez stated that, from a standing position, he could not bend to touch his toes, and that even bending to touch his knees caused him pain. See id. at 148. He stated that even stooping caused him pain. See id. at 148. Velez mproves his pain, and then stated that even

his pain medication does not help much and that physical therapy did not go well. Id. at 142.

Velez also testified that he suffers from depression, due to losing both his mother and his son within one year. See id. at 143, 151. He stated that he has also been diagnosed with Post Traumatic Stress Disorder. See id. at 151. Velez discussed his intellectual and social abilities and limitations. See id. at 143 46. Velez stated that he See id. at 145.

Velez stated that he cannot walk for more than ten minutes due to pain, that he can only stand up for about half an hour, and that his back was already hurting during the hearing, due to the amount of time he had been sitting. See id. at 147. Velez stated, however, that he could climb ramps or ladders, raise his arms over his head, and raise his arms in front of himself. See id. at 148.

Velez stated that he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten or fifteen pounds. See id. at 146. He said that, if he were to attempt to carry a container of milk, he would need to switch the container back and forth between his hands. See id. at 147. Velez testified that he can use his right hand either for fine motor tasks or to grasp an object, but that he cannot do either with his left hand. See id. at 148 49, 155. Velez stated that he has experienced problems with his Id. at 154. He stated that he had surgery on one of his fingers, and that, since the surgery, he has been unable to close that finger all the way. See id. at 154 55.

Velez stated that his symptoms were aggravated by exposure to cold temperatures and by rain See id. at 149.

B. Decision On April 17, 2015, the ALJ issued a decision. See id. at 60. The ALJ found that Velez was not disabled. See id. at 78. The ALJ found that Velez met the insured status requirements of the Social Security Act and had not engaged in substantial gainful activity since his alleged onset date. See id. at 68 69. The ALJ also found that Velez had the following severe combination of impairments: (1) multi-level lumbar degenerative changes, (2) a disc bulge, (3) obesity, (4) depressive disorder, and (5) post-traumatic stress disorder (PTSD). See id. at 69. However, the ALJ found that the impairment. See id. at 70.

The ALJ found that Velez had the residual functional capacity (RFC) to perform,

medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c) except that the claimant can never climb ladders, ropes, or scaffolds; can occasionally climb stairs or ramps; can occasionally balance, stoop, and crouch; can never kneel or crawl; can [ ] frequently handle and finger with his left hand and has no limitations with the right hand; cannot work with exposure to cold, wetness, or concentrated exposure to pulmonary irritants; can perform simple, routine, repetitive tasks; can sustain concentration, persistence and pace for two hour segments; and can have occasional interaction with the public. Id. at 71 72.

In deciding the RFC, the ALJ See id. at 72 73.

testified that he only speaks and understands some English, it is listed as his primary Id. at 73 (citing id. at 521 71).

The ALJ allegations of disabling Id. at 74. According to the ALJ, such objective id. at 73 (citing id. at 462), (2) an

id. at 73 74 (citing id. at 460), (3) the fact that,

was again released to return to work as a landscaper without restrictions by his id. at 74 (citing id. at 459), and (4) an x-ray no evidence of spondylosis or spondylolisthesis; marginal vertebral osteophytes at all levels; no evidence of compression fracture; normal transverse and spinous processes; and normal pedicles and interpedic id. at 74 (citing id. at 726).

The ALJ stated that examinations of record, which consistently report that he retains normal range of motion, norm Id. at 74 (citing id. at 518 19, 523, 528, 533, 538, 542, 546, 731, 737, 747, 752, 758, 783, 786).

about 10 minutes, he has reported to his providers that he walks on a regular basis for Id. at 74 (citing id. at 521 71, 719 67). The ALJ despite his testimony to the contrary, he reported being independent in all areas of daily

Id. at 74 (citing id. at 730).

The ALJ found that certain medical evidence, including evidence that

testimony at the hearing that he can perform only limited lifting and that he cannot sit, Id. at 74. The ALJ stated cannot sit, stand or walk for extended periods, this limitation is not reported in the

Id. at 74. Based on Id. at 74.

In deciding the RFC, t to the opinion treating physician, Dr. Khalid, because the ALJ found Id. at 75. The ALJ explain minimal weight as follows:

As the doctor merely completed a checklist form, it is unclear how he reached his conclusions. The doctor simply checked marked boxes indicating the claimant had limitations that would increase the likelihood of claimant obtaining benefits but did not explain why those limitations were chosen. In particular, he gave no examples of objective findings, documented symptoms, or other medical evidence to support his conclusions. Indeed, it appears he relied upon the -imposed limitations as a basis for the opinion. Moreover, inconsistent with his own treatment notes, which as noted [earlier in the ALJ decision] show essentially normal physical examination findings and report that the claimant presents for treatment in no acute distress (Exhibit 5F [Tr. at 521 71]). the other evidence of record, which also reports essentially normal physical examinations. Id. at 75.

The ALJ then found that, while Velez could no longer perform any of his past work, other jobs existed for Velez in significant numbers in the national economy. See

id. at 77. On December 29, 2015, the SSA review the ALJ decision. See id. at 4.

IV. LEGAL STANDARD

in any substantial gainful

lasts at least a year. 42 U.S.C. § 423(d)(1). to do his previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national

205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate

Zambrana v. Califano Commissioner of Social Security as to any fact, if supported by substantial evidence,

[are] co de novo determination of whether a claimant is disabled. See Human Servs., 906 F.2d 856, 860 (2d Cir. 1990); , No. 15-

CIV-5356 (ER) (JCF), 2017 WL 65836, at *7 (S.D.N.Y. Jan. 4, 2017). Rather, the SSA applied the correct legal principles in reaching its conclusion, and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

V. DISCUSSION

A. Treating Physician Rule Velez argues that the ALJ erred in giving of See Mem. in Supp. of Mot. for J. at 2. The court agrees, because the ALJ failed to identify a valid reason to decline to give controlling weight.

phys Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008). SSA regulations give the opinion of a treating physician that opinion is -supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case § 404.1527(c)(2); 416.927(c)(2); see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015). As Colvin for declining to give controlling weight to a treating physician opinion. See Mot. to Affirm at 3 (citing Sanders v. Comm r of Soc. Sec., 506 F. App x 74, 77 (2d Cir. 2012)).

Here, the ALJ declined to g See Tr. at 75. Construed broadly, t (1) that Dr. -supported, and (2) that the opinion was inconsistent with other evidence. See id. at 75.

1. Support The ALJ -supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§

404.1527(c)(2); 416.927(c)(2). However, the ALJ decision says

[t]he doctor simply checked marked boxes indicating the claimant had limitations that would increase the likelihood of claimant obtaining benefits but did not explain why those limitations were chosen. In particular, he gave no examples of objective findings, documented symptoms, or other medical evidence to support his conclusions. Indeed, it appears he - imposed limitations as a basis for the opinion. Tr. at 75. A lack of support is a valid reason to decline to give controlling weight to a treating physician opinion. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). The court thus concludes that the ALJ has, not entitled to controlling weight for this reason. Johnson, 817 F.2d at 985.

was unsupported by valid diagnostic techniques Id. at 985. not

Id. at 985.

See - See Tr. at 643.

While some of these findings such as the finding that Velez experienced pain and depression Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 16 of 39 interviews with his patient should be trusted as a form of clinical diagnostic technique. Id. at 643. edically acceptable clinical and laboratory diagnostic techniques include consideration of a patient s report of complaints, or history, as an essential diagnostic tool. Burgess v. Astrue, 537 F.3d at 128 (internal quotation marks and brackets omitted). Because s own subjective complaints or report, an ALJ errs where the ALJ treats a medical reliance on a subjective complaints opinion lesser weight. Kotkowicz v. Colvin, No. 13-CV-6472 (CJS),

2014 WL 3819213, at *8 (W.D.N.Y. Aug. 4, 2014). notes discuss an additional piece of diagnostic support for opinion, beyond , namely, an MRI reporting a bulging disc. See id. at 552.

Dr. -hour workday, Velez could

perform one hour of seated work, and less than one hour of work that involves standing, walking, or both, see id. at 645, is supported by (1) the multitude of notes regarding see id. at 526, 544, 551 54, 558, 740, 761, which is aggravated by, inter alia id. at 526, and (2) the note describing right foot hurt when he walked, and stating that the foot problem had persisted for two weeks, see id. id. at 645, is supported

by (1) the doctor . id. at

id. manipulations, id. otes regarding

chronic back pain, see, e.g., pain, see, e.g., id. id. at 742, (4)

id. at 538, (5) complained of finger numbness, see id. at 564, (6) complained of severe arm pain, lasting three weeks, at an intensity level of ten out of ten, see id. at 565, (7) complained of wrist pain, at an intensity level of six out of ten, see id. id. at 761, and (9) suffered from a reduced range of

motion in his shoulders, see id. at 764. Thus, substantial evidence does not exist for -supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). This implicit finding thus does not provide a basis upon which this court refusal to afford the treating physician opinion controlling weight.

Colvin cites Camille v. Colvin , as a decision permitting an ALJ to discount a treating physician opinion that lacked a narrative explanation. In Camille - Id. at

27. Here, however, the Disability Impairment Questionnaire that Dr. Khalid completed did not request a narrative explanation for each opined limitation. See Tr. at 645 47 (not requesting narrative explanation for number of hours patient can perform seated or reach, handle, or finger). When the Questionnaire did request a narrative explanation,

Dr. Khalid usually provided one. See id. at 647 (explaining that emotional factors affect Velez because, inter alia to his medical conditio but see id. at 646 (failing to provide narrative explanation for how symptoms will increase if Velez is placed in a competitive work environment). The court concludes that Camille is not on point.

In addition to implicitly finding that the treating physician opinion - supported by medically acceptable clinical and laboratory diagnostic techniques, C.F.R. §§ 404.1527(c)(2); 416.927(c)(2), t is [ ] without substantial support from the other evidence of record Tr. at 75. Dr.

opinion need not have id. at 75, however, to be controlling. To the contrary, opinion is controlling as long as it both (1) is -supported by medically acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other substantial evidence in see also Lesterhuis, 805 F.3d at 88.

2. Consistency The ALJ also s opinion controlling weight in part because the ALJ found in the case Record, see id. at 521 67, 735

opinion and his treatment notes would be a legally valid reason for the ALJ not to give pinion controlling weight, see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Lesterhuis, 805 F.3d at 88. Wmedical source statement conflict[s] with his own treatment notes, the ALJ [is] not required to afford Cichocki v. Astrue, 534 F. App x 71, 75 (2d Cir. 2013). The ALJ controlling weight for this reason. Johnson, 817 F.2d at 985.

Id. at

985. not al evidence. Id. at 985.

The ALJ found notes claimant presents for treatment in no acute distress. Tr. at 75. In support of his

statement show findings no acute distress, . Id. at 75. Exhibit 5F spans

pages 521 571 of the Certified Transcript of the Record, and contains many of Dr.

. 3

See id. at 521 67. The court has thoroughly examined this cited portion of the record, see id. at 735 67, to determine whether statement is supportable.

The court has determined that a modicum of evidence supports statement essentially normal physical examination findings. Id. at 75. Specifically, during two of the more recent office visits, normal results. See id. at 752, 758. While the ALJ did not cite the notes from these

particular visits in support of his statement, id. at 75, the court treats the notes from Additionally, Dr. Khalid strength, and stability in all extremities with n See id. at 523, 533,

542, 546, 737; see also id. at 538 (finding normal range of motion, muscle strength, and stability in all extremities with no pain, except that the right hand middle finger had a painful range of motion). Notes from most of these occasions are within the portion of the record that the ALJ cited. See id. at 75 (citing Exhibit 5F, which includes, inter alia, id. at 523, 533, 542, and 546). Despite this number of notations indicating that physical examinations of most recent office visit notes show abnormal physical examination findings, see id. Lumbar spine Range of motion: moderate pain [with] motion. Shoulder Left: Range of motion: mildly reduced [range of motion], Right: Range of motion: mildly reduced [range

3 Exhibit 5F also includes four pages of treatment notes signed by a provider other than Dr. Khalid, see id. at 561 62, 568 69, and a two-page consultation report, see id. at 570 71 remaining treatment notes are contained within pages 735 67 of the Certified Transcript of the Record.

as do notes from two other relatively-recent visits, id. ); see id. at

. Notes from these most recent visits are outside of the portion of the record that the ALJ cited t regarding physical examination findings. See id. at 75 (citing only Exhibit 5F, which does not include Tr. at 742, 747, or 764).

Additionally, and difficulties with movement, although complaints to the doctor, rather than physical examination results. See, e.g., id. at 735 ] bilateral pain and swelling on both legs and hands . . . . [N]o strength i id. at 736 (listing back pain, joint pain, and joint swelling as symptoms); id. hand pain persist . . . [C]urrent meds not helping.); id. foot pai ); id. at 761 throbbing. Symptoms are aggravated by bending, changing positions and lifting; Patient

reports severe pain last 2 3 days . . . [and] also [complains of bilateral] shoulder pain[ and] difficulty making a fist. ); id. id. at 538 (stating

motion); id. at 544 ; id. at 550 (stating that Velez . The notes that describe Velez as suffering from pain and difficulties with movement fall both within, and outside of, the portion of the record cited by the ALJ Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 22 of 39 physical examination findings. See id. at 75 (citing Exhibit 5F, which includes Tr. at 526, 538, 544, and 550, but not Tr. 735 36, 740, 744, or 761). treatment notes themselves could be considered inconsistent in that they both show some normal physical examination findings, see id. at 752, 758, 523, 533, 542, 546, 737, and also report pain and other physical problems, see id. at 526, 538, 544, 550, 735 36, 740, 742, 744, 761, 747, 764 the court acknowledges that some evidence exists for statement Id. at 75. However, in light of the

prevalence of comments problems including persistent notations regarding back pain and associated issues, see id. at 526, 528, 544 46, 551 54, 558, 740, 742, 761, 764 , the court cannot find substantial evidence findings make See

id. at 75. Furthermore, in the portion l physical examination findings statement, id. at 75 (citing id. at 521 71), Dr. Khalid repeatedly used a computerized results which included only the fol

and id. at 523, 528, 533, 538,

542, as well as, on one occasion, (10 , 1 2) 47. In the cited portion of the record, whenever Dr. Khalid used this particular computerized always [n]ormal range of motion, muscle strength, and stability in all

extremities with no pain on inspection language. Id. at 523, 528, 533, 538, 542, 546 (emphasis added). results frequently exclude any findings at all regarding Vele his back. Instead of recording Dr. Khalid frequently recorded back-related findings in other sections of his notes. See,

e.g., id. at 526 27 , sections of treatment notes section). On other occasions recorded within the portion of the record that the ALJ

cites, Dr. Khalid reported physical examination results by using a check-box form, which . See id. at 548 567. When Dr. Khalid used the check-box form, the doctor simply indicated that the physical exam with regard to oskeletal system was either (1) normal, on several occasions, see id. at 548 49, 551 53, 555 57, 559 60, 563 64, 566, or (2) abnormal, on a few other occasions, see id. at 550, 554, 558, 565, 567. Even on certain occasions when Dr. Khalid indicated via check mark that was normal, , id. at 552, mentioned a - id. at 553, or indicated that Velez had complained of chest pain which radiated to his shoulder and back, id. at 556. Thus, while some evidence statement normal physical examination findings id. at 75

notes inconsistent with opinion.

Furthermore, the court certainly cannot find substantial evidence for the assertion that Id. at 75. The most recent treatment notes, which are outside of the portion of the record cited by the ALJ, describe back pain with a severity level of eight out of ten, as well as shoulder pain, difficulty making a fist, and depression. See id. at 761, 764. Various treatment notes have also described that, at some point, Velez experienced, inter alia, (1) weakness in hands, so severe id. at 735, (2) persistent and worsening back pain at an intensity level of seven out of ten, see id. at 526 28, 544 46, 553, (3) depression so severe that it included suicidal thoughts, see id. at 555, (4) arm pain at a severity level of ten out of ten, see id. at 565, (5) foot and ankle pain, see id. at 745 47, and (6) knee pain, see id. at 550. These descriptions fall both within, and outside of, the portion of the record that the ALJ cited to support his Id. at 75. For these reasons, a finding of .

More broadly, the court cannot find substantial evidence to support overall conclusion that the treating opinion was inconsistent with his treatment notes. See id. at 75. Specifically, the court cannot find evidence in Dr. in an eight-hour workday, Velez can perform only one hour of seated work, and less than one hour of work that involves standing, walking, or both, (2) Velez can only carry up to ten pounds, but not more, and (3) Velez can

fingers for fine manipulations. Id. at 645 46. that opinion

was 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2), namely, his own treatment notes, thus does not provide a basis upon which to affirm the denial of controlling weight opinion.

Because neither (1) -supported by medically acceptable clinical and laboratory diagnostic

nor (2) are supported by substantial evidence, the ALJ failed to identify a good reason to decline to give opinion. 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). Because the ALJ failed to ide good reason Sanders x at 77, to decline to give

more than See Mem. in Supp. of Mot. for J. at 5.

B. Credibility Evaluation Velez argues that See Mem. in Supp. of Mot. for J. at 6. Because the court must remand for proper application of the treating physician rule, the court need not decide determination constitutes a basis for remand. Nevertheless, on remand, the ALJ should

reconsider its credibility determination in light of this Ruling.

ion of the [Commissioner], not the reviewing courts, to resolve Gates v. Astrue, 338 F. App (brackets omitted) (quoting Aponte

v. Sec y, Dep , 728 F.2d 588, 591 (2d Cir. 1984)). In particular, the ALJ is required to assess the credibility of the plaintiff s subjective complaints. See 20 C.F.R. §§ 404.1529(c)(4); 416.929(c)(4). As a fact-finder, an ALJ is free to accept or reject testimony. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988). Credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable. Pietrunti v. Dir., Office of Workers Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (internal quotation marks omitted).

finding that the witness is not credible must nevertheless be set forth with sufficien Williams, 859 F.2d at 260 61. An ALJ s failure to provide specific reasons for finding a

claimant's testimony not credible is a sufficient basis for reversal and remand to the Administration. See id. at 260 61. Further, whatever findings the ALJ makes must be consistent with the medical and other evidence. Put another way, an ALJ must assess subjective evidence in light of objective medical facts and diagnoses. Id. at 261 (citation omitted). However, [the SSA] will not reject statements about the intensity and persistence of [his] pain or other symptoms or about the effect [his] symptoms have on [his] ability to work solely because the available objective medical evidence does not substantiate [his] statements 20 C.F.R. § 404.1529(c)(2); see also 20 C.F.R. § 416.929(c)(2).

Here, the ALJ found Velez for several reasons. See Tr. at 73 74. The ALJ explained his reasons in detail, giving citations to relevant evidence in the

record. See id. at 73 74. As a preliminary matter, the court thus finds that the ALJ has

set forth finding t with sufficient specificity to permit intelligible plenary review of the record. Williams, 859 F.2d at 260 61. The level of specificity is thus not a basis for reversal here. See id. at 260 61. The court discusses each of the ALJ reasons in turn.

1. English Proficiency First, the ALJ found a contradiction -proclaimed low level of English proficiency and the higher level of proficiency implied by the notations See Tr. at 73 (citing Tr. at 521 71).

During the hearing, Velez had accepted the ALJ offer of an interpreter, stating that he [s English,] See id. at 130. Id. at 526, 531, 536, 540, 544. The ALJ thus had a valid Id. at 73.

does not speak English at home, see Tr. at 526, and

facts are insufficient to make the ALJ Pietrunti, 119 F.3d at 1042.

Furthermore, as Colvin explains, see see 20 C.F.R. §§ 404.1564(b)(5), communicate in Engli The

ALJ thus had a good reason to view an apparent contradiction on this topic with

skepticism. any 8 (emphasis added). The ALJ nonetheless could have reasonably concluded that, by stating that Velez [English], Velez underrepresented a legally-significant vocational ability.

For these reasons, the aspect of the ALJ that relied on -related representation was not patently unreasonable. Pietrunti, 119 F.3d at 1042.

2. Back Pain Second, the ALJ Tr. at 74.

he suffers from back pain at an intensity level of seven or eight out of ten, see id. at 142, that the pain usually starts when he returns to an upright position after bending, see id. at 141, that the pain acts up whenever he touches his knees and that he cannot touch his toes, see id. at 148, and that even stooping hurts him, see id. at 148.

the fact that orthopedist released him to return to work after his accident. See id. at 73 (citing id. at 462). Indeed, the Treatment Report that the ALJ cites demonstrates that Velez Id. at 462. The Id. at 462. as evidence that his back problems are relatively mild. See id. at 73 74. The Results state, inter alia and that Velez

has only ; although Velez has . Id. at 460 62. The ALJ then cites a

Id. at 459. The ALJ thus reasonably could have extrapolated from this form that Velez can perform landscaping work including any required bending or stooping despite his back condition. Finally, the ALJ correctly describes an x-ray as revealing, inter alia, evidence of spondylosis or spondylolisthesis; . . . no evidence of compression fracture;

normal transverse and spinous processes; and normal pedicles and interpediculate distances. Id. at 74 (citing id. at 726).

The court concludes that the ALJ Tr. consistent

with the medical [ ] evidence. Williams, 859 F.2d at 261. While the not reject statements about the intensity and persistence of [his] pain effect thereof, solely because the available objective medical evidence does not

substantiate [his] statements 20 C.F.R. § 404.1529(c)(2); 20 C.F.R. § 416.929(c)(2) (emphasis added), the ALJ apparent misrepresentation about his English proficiency decreased credibility.

For these reasons, the ALJ discrediting of Ve representations regarding the disabling effects of back pain patently unreasonable. Pietrunti, 119 F.3d at 1042. Nevertheless, on remand, the ALJ should consider whether reweighing leads the ALJ to representations regarding back pain. As discussed above, see supra at 7 8, Dr. Khalid

opined that Velez suffers from painful and decreased flexion in his spine, see Tr. at 643, that chronic back pain is , id. at 644, and that bending precipitates or aggravates the pain, see id. at 644.

3. Extremities Third, t testimony was examinations of record, which consistently report that he retains normal range of motion, normal sensation, and normal strength in all extremities Tr. at 74. In support of this statement, the ALJ cited 8, 13, 18, 22, 26; citations make up pages 518 19, 523, 528, 533, 538, 542, 546, 731, 737, 747, 752, 758, 783, and 786 of the Certified Transcript of the Record. The court has thoroughly examined these cited pages, to normal range of motion, normal sensation, and normal strength in all

Id. at 74.

appear most relevant to the health of Velez stated that he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten or fifteen pounds. See id. at 146. The court notes that such difficulties could theoretically be caused by arms, although such difficulties could also theoretically be Second, Velez testified that, if he were to attempt to carry a container of milk, he would need to switch the container back and forth between his hands. See id. at 147. Third, Velez testified that he cannot use his

left hand for fine motor tasks, nor can he grasp objects with his left hand, and that he cannot fully close one finger on his left hand. See id. at 148 49, 154 55.

As the ALJ noted, s extremities produced mostly normal results. See id. at 518 19, 523, 528, 533, 542, 546, 737, 752, 758, 786. These normal extremity physical examination results are reported on most of the pages cited by the ALJ for statement regarding extremities. See id. at 518 19, 523, 528, 533, 542, 546, 737, 752, 758, 786. However, one physical examination found that , id. at 538, one found that he , id. at 747, and one found that he , id. at 783. 4

These physical examination results are reported on pages among those

While the ALJ id. at 74, would appear to be an overstatement, the physical examination results could, viewed in a vacuum, be construed as supporting a finding that Velez exaggerated the problems with his extremities. However, Dr. Khalid has opined that (1) Velez can only or carry up to ten pounds, and not more, id. at 645, and (2) Velez can only turn, or twist objects, or use his hands or fingers for fine manipulations, id. at 646. As discussed above, the ALJ has failed to identify a proper reason to deny weight. controlling weight on remand, the ALJ thus should no longer discredit

4 Another physical examination result stated that Velez had impairments including reduced reduced reduced range of motion, although these Id. at 731. This result t regarding extremities.

representations which were consistent with opinion. professed difficulty with lifting and carrying could be a symptom of his back problems, and not of problems with his extremities. The court thus notes that the reference

normal range of motion, normal sensation, and normal strength in all extremities with no pain Tr. at 74 (emphasis added), cannot provide a reason to discredit testimony regarding his difficulty with lifting and carrying.

4. Daily Living Fourth, the ALJ found a February 27, 2015 Physical Therapy Adult Evaluation, with regard to whether Velez was Id. at 74 (citing id. at 730). The ALJ did not See id. at 74 (stating only that the Evaluation

At the hearing, grooming and bathing himself, because, on certain days, back pain makes it difficult for him to bend. See id. at 139. The Physical Therapy Adult Evaluation states that Velez can bathe independently. Id. at 730. The court does not see an inherent contradiction between mony regarding bathing and the Evaluation, because an individual very well could be able to bathe himself, see id. at 730, despite finding the task slightly difficult, see id. at 139. For instance, a person who felt pain while bending down to bathe his feet, or who found it difficult to reach certain areas of his body without use of a long- handled sponge or a removable shower head, might honestly Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 33 of 39 id. at 139, but he would not necessarily need to resort to s help in this very personal activity. The court notes that, bending Id. at 526. However, the Physical Therapy Adult

Evaluation reasonably could have led the ALJ to conclude that any difficulty Velez has in grooming himself must be relatively minor.

cleans. Id. at 139 40. The Physical Therapy Adult Evaluation, however, does not Id. at 730. Thus, the s ability to do chores.

On remand, the ALJ might reconsider his implicit finding that Velez misrepresented his level of independence in areas of daily living. However, the ALJ need not disturb his implicit finding that Velez is, in fact, able to bathe independently, as Johnson, 817 F.2d at 985.

5. Walking, Lifting, Sitting, Standing Fifth difficulties walking, lifting, sitting, and standing.

The ALJ for about 10 minutes, Tr. at 74; see also Tr. at 147 (testifying that Velez cannot walk for more than ten minutes due to pain), and notat which, according to the ALJ, indicate that he walks on a regular basis for exercise and that he exercises daily id. at 74 (citing id. at 521 71, 719 67).

notes [e]xercise includes walking, id. at 526 an instruction to , id. at 534. However, other medical notes within the portion of the record cited as support for the statement that Velez walks regularly and exercises daily state that Velez complains of pain in his right foot when he walks, see id. at 745, and that the doctor believed daily exercise would improvsee id. at 724, thereby indicating that Velez presumably did not exercise every day. Furthermore, the court notes that there is no inherent contradiction between walking daily and only being able to walk for ten minutes Velez very well could take short walks daily.

The ALJ also found that testimony at the hearing that [Velez] can perform only , discussed above, discussed above, (3) the evidence,

discussed above, regarding walking habits, and (4) the fact that . . report that he presents for examination in no acute distress ([citing 635, 637 38)]. Id. at 74. A note from an orthopedic evaluation indeed states that Velez presented Id. at 636.

The ALJ also found that, while Velez and or walk Id. at 74; see also id. at 147 (testifying that Velez can only stand for about half an hour, and that sitting at the hearing hurt him). The medical record, however, includes the following which indicate limitations in sitting, standing, or walking: Regarding sitting and standing, a note states that are aggravated by Case 3:16-cv-00338-JCH Document 23 Filed 02/15/17 Page 35 of 39 Id. at 526. Regarding walking, notes state that (1) Velez presented with right knee pain, which had caused him difficulty walking for at least a month, despite Velez not having experienced trauma to the area, see id. at 550, and (2) Velez complained of pain in his right foot when he walked, see id. at 745.

walking, lifting, sitting, and standing were not credible, for the following reasons: (1)

T egarding his ability to walk, . (2) T finding regarding ing, sitting, and standing depended in part on extremities. As discussed above, the ALJ should reevaluate after reweighing the Dr. Khalid opinion. (3) T ng, lifting, sitting and standing. (4) The finding that the medical record does not report a limitation id. at 74, is inaccurate.

6. Sixth, influenced the ALJ in dis Id. at 74 (citing Tr. at 516 20). The ALJ recounted, correctly, retained full lumbar range of motion and full range of motion in all extremities and joints. Additionally, claimant retained full, 5/5 strength in all extremities and full grip strength Id. at 74 (citations omitted) (citing id. at 518 19).

The court agrees that the ALJ has identified portions of which appear to contradict portions of testimony. See id. at 146 (testifying that

Velez can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds); id. at 147 (testifying that he would need to switch a carton of milk back and forth between his hands); id. at 148 49, 155 (testifying that he cannot use his left hand for fine motor tasks, nor to grasp an object). 5 provides some support for those portions of with . See id. at 645 (opining that Velez can only

or carry up to ten pounds, but not more); id. at 646 (opining that Velez can only manipulations).

the ALJ should reconsider opinion. hen a treating physician s opinion is entitled to controlling weight, the ALJ must defer to the physician s medical opinions about the nature and severity of an applicant s impairments, including symptoms, diagnosis and prognosis, what an applicant is capable of doing despite the impairment, and the resulting restrictions. Ditsworth v. Colvin, 982 F. Supp. 2d 935, 945 (N.D. Iowa 2013) (citing Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005) The Commissioner defers to a treating physician s medical opinions about the nature and severity of an applicant s impairments, including symptoms, diagnosis and prognosis, what an applicant is

5 can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds, see id. at 146, is not necessarily in opinion that Velez retained full strength in all extremities, see id. at 74, because

capable of doing despite the impairment, and the resulting restrictions. For instance, where a treating physician opined that a claimant suffered from marked limitations in certain areas, a court in the Northern District of New York held that, to give the treating ] would result in a finding [by the ALJ] of marked in those areas. Tim v. Colvin, No. 6:12-CV-1761 (GLS) / (ESH), 2014 WL 838080, at *8 (N.D.N.Y. Mar. 4, 2014).

Here, to defer to carry up to ten pounds, but not more, and objects, or use his hands or fingers for fine manipulations, Tr. at 645 46, (1) would mean crediting he can safely lift only about fifteen or twenty pounds, and can safely carry only about ten to fifteen pounds, id. at 147, and (2) could that he cannot use his left hand for fine motor tasks, nor to grasp an object, id. at 148 49, 155. On remand, the SSA should thus reconsider the portion of its credibility determination that relied on Dr.

VI. CONCLUSION

For the foregoing reasons, Velez No. 16) is GRANTED. Motion to Affirm the Decision of the Commissioner (Doc. No. 20) is DENIED. The case is remanded to the agency for further proceedings in which the ALJ weighs the evidence in a manner that is consistent with this decision, and issues a new decision.

SO ORDERED. Dated this 15th day of February, 2017, at New Haven, Connecticut.

/s/ Janet C. Hall . Janet C. Hall United States District Judge

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