Johnson v. Colvin

Filing 27

ORDER granting 13 MOTION to Reverse -- to the extent that it asks that I vacate the decision of the Commissioner -- and denying 22 MOTION to Affirm. The case is remanded for further development of the record with respect to Johnson's ability to perform other work that exists in significant numbers in the national economy.The Clerk shall enter judgment, effect remand to the Commissioner, and close the case. Signed by Judge Stefan R. Underhill on 06/01/2017. (Jamieson, K)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DARRYL E. JOHNSON,
Plaintiff,
No. 3:16-cv-01050 (SRU)
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
In the instant Social Security appeal, Darryl E. Johnson moves to reverse the decision by
the Social Security Administration (SSA) denying him disability insurance benefits. The
Commissioner of Social Security moves to affirm the decision. Although I conclude that most of
Johnson’s arguments for reversal lack merit, I hold that the Administrative Law Judge (ALJ)
failed to properly describe all of Johnson’s limitations to the vocational expert. As a result of the
ALJ’s omission, her finding that Johnson could perform other work was not supported by
substantial evidence. Therefore, I grant Johnson’s motion and deny the Commissioner’s.
I.

Standard of Review
The SSA follows a five-step process to evaluate disability claims. Selian v. Astrue, 708

F.3d 409, 417 (2d Cir. 2013) (per curiam). First, the Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” Greek v. Colvin, 802 F.3d 370, 373
n.2 (2d Cir. 2015) (per curiam) (citing 20 C.F.R. § 404.1520(b)). Second, if the claimant is not
working, the Commissioner determines whether the claimant has a “‘severe’ impairment,” i.e.,
an impairment that limits his or her ability to do work-related activities (physical or mental). Id.

1

(citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third, if the claimant does have a severe
impairment, the Commissioner determines whether the impairment is considered “per se
disabling” under SSA regulations. Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). If
the impairment is not per se disabling, then, before proceeding to step four, the Commissioner
determines the claimant’s “residual functional capacity” based on “all the relevant medical and
other evidence of record.” Id. (citing 20 C.F.R. §§ 404.1520(a)(4), (e), 404.1545(a)). “Residual
functional capacity” is defined as “what the claimant can still do despite the limitations imposed
by his [or her] impairment.” Id. Fourth, the Commissioner decides whether the claimant’s
residual functional capacity allows him or her to return to “past relevant work.” Id. (citing 20
C.F.R. §§ 404.1520(e), (f), 404.1560(b)). Fifth, if the claimant cannot perform past relevant
work, the Commissioner determines, “based on the claimant’s residual functional capacity,”
whether the claimant can do “other work existing in significant numbers in the national
economy.” Id. (20 C.F.R. §§ 404.1520(g), 404.1560(b)). The process is “sequential,” meaning
that a petitioner will be judged disabled only if he or she satisfies all five criteria. See id.
The claimant bears the ultimate burden to prove that he or she was disabled “throughout
the period for which benefits are sought,” as well as the burden of proof in the first four steps of
the inquiry. Id. at 374 (citing 20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at 418. If the claimant
passes the first four steps, however, there is a “limited burden shift” to the Commissioner at step
five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). At step five, the
Commissioner need only show that “there is work in the national economy that the claimant can
do; he need not provide additional evidence of the claimant’s residual functional capacity.” Id.
In reviewing a decision by the Commissioner, I conduct a “plenary review” of the

2

administrative record but do not decide de novo whether a claimant is disabled. Brault v. Soc.
Sec. Admin., Comm’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam); see Mongeur v. Heckler,
722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam) (“[T]he reviewing court is required to examine
the entire record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.”). I may reverse the Commissioner’s decision “only if it is based upon
legal error or if the factual findings are not supported by substantial evidence in the record as a
whole.” Greek, 802 F.3d at 374–75. The “substantial evidence” standard is “very deferential,”
but it requires “more than a mere scintilla.” Brault, 683 F.3d at 447–48. Rather, substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Greek, 802 F.3d at 375. Unless the Commissioner relied on an incorrect
interpretation of the law, “[i]f there is substantial evidence to support the determination, it must
be upheld.” Selian, 708 F.3d at 417.
II.

Facts
Darryl E. Johnson applied for Social Security disability insurance benefits on December

28, 2012, alleging a period of disability from January 1, 2013. Statement of Stipulated Facts,
Doc. No. 13-2, at 1. Johnson identified his disability as “[d]egenerative disc disease.” See
Disability Determination Explanation (Initial), R. at 145.
The SSA initially denied Johnson’s claim on February 28, 2013, finding that although
Johnson’s “condition result[ed] in some limitations in [his] ability to perform work related
activities, . . . th[o]se limitations d[id] not prevent [him] from performing work [he] ha[d] done

3

in the past.” Id. at 153. In the agency’s view, Johnson’s condition was “not severe enough to
keep [him] from working.”1 Id.
Johnson sought reconsideration, alleging that he also suffered from a hand injury and
cognitive impairment. The SSA adhered to its decision upon reconsideration on September 12,
2013.2 Disability Determination Explanation (Reconsideration), R. at 177.
Johnson requested a hearing before an ALJ, which was held on February 4, 2015. Tr. of
ALJ Hr’g, R. at 68. At the hearing, ALJ Sharda Singh questioned Johnson about his conditions
and treatment history, particularly asking “how much weight . . . [he] th[ought] [he] c[ould] lift
and carry comfortably,” and “[h]ow long or . . . how far . . . [he] th[ought] [he] c[ould] stand or
walk.” Id. at 112. Johnson replied that he could lift only “somewhere between five and 10
pounds,” could stand only for “15, 20 minutes,” and rarely walked. Id. at 112–13.
The ALJ then heard testimony from two vocational experts, one for Johnson, Jeff R.
Blank, PhD, and one for the SSA, Steven B. Sachs, PhD. Johnson’s attorney questioned Dr.
Blank first. She described Johnson as “closely approaching advanced age, ha[ving] completed a

1

The SSA consultant, Rafael S. Wurzel, MD, deemed Johnson’s statements regarding his
symptoms only “[p]artially [c]redible” because his “ability to do work related activities” was
only “mildly to moderately limited.” Disability Determination Explanation (Initial), R. at 149–
50. He assigned Johnson “exertional limitations” of occasionally lifting or carrying 20 pounds
and frequently lifting or carrying 10 pounds, but concluded that “th[o]se limitations would not
prevent [Johnson] from performing past relevant work.” Id. at 150, 152.
2

Carol R. Honeychurch, MD—the SSA consultant at the reconsideration level—agreed with Dr.
Wurzel that Johnson was only “[p]artially [c]redible” because his physicians, Pietro A. Memmo,
MD, and Robert L. Reginio, MD, gave him only “mild–moderate restrictions.” Disability
Determination Explanation (Reconsideration), R. at 171. She particularly noted Dr. Memmo’s
statement that “the level of pain and debility that [Johnson] is reporting is out of proportion with
objective radiological findings.” Id. at 157. A psychological consultant, Warren Leib, PhD, also
considered Johnson’s file and concluded that Johnson had “a credibility issue” because his
“symptoms [were] out of proportion to evidence,” and he was “unable to determine etiology [of]
most of [Johnson’s] complaints.”
4

high school education with specific vocational training . . . , and his work history being selfemployed as a freight broker at the sedentary exertion level.” Id. at 121. Johnson’s counsel then
asked, “Assuming . . . [Johnson] experiences fatigue to the extent that he or she is required to
take multiple breaks during an eight-hour work day, are there jobs available for him in the local
economy?” Id. at 123. Dr. Blank replied, “That description of an individual would not be
consistent with competitive work, so I would not expect [] Johnson to be able to perform any of
his past . . . positions or other positions given those limitations.” Id. at 124. After Johnson’s
attorney added furthers restriction of needing “to nap during that time period” and
“experienc[ing] pain that interferes with his ability to work and complete tasks on time,” Dr.
Blank concluded that “clearly there would be no work for such a person.” Id. at 124–25.
ALJ Singh called the SSA’s vocational expert, Dr. Sachs. Dr. Sachs characterized
Johnson’s past work as “sedentary” and “light.” Id. at 135. The ALJ asked Dr. Sachs to
“assum[e] . . . an individual [with] the same education and past work experience as [Johnson],”
who could “lift and carry 20 pounds occasionally, [and] 10 pounds frequently; stand and walk for
six hours and sit for six hours with a sit/stand option; . . . never climb ladders, ropes, or scaffolds;
occasionally climb ramps, stairs, balance, stoop, kneel, courch, and crawl; . . . [and be] further
limited to understanding, remembering, and carrying out simple, routine, repetitive, non-complex
tasks.” Id. 138. She also asked Dr. Sachs to limit the hypothetical person to “avoid[ing]
concentrated exposures to hazards.” Id. at 139. Dr. Sachs opined that, although such a person
could not perform Johnson’s past jobs, he could find work as a “receptionist, . . . general office
clerk, . . . [or] as a production inspector.” Id. With the further limitations of “frequent limitations
in . . . gross hand manipulations of the left upper extremity”—Johnson’s non-dominant hand—

5

Dr. Sachs concluded that “the work as a receptionist and general officer clerk could be
performed,” but not the work as a production inspector. Id. at 139–40. When the ALJ asked if
such a person could find work if they “would be off task for more than 15 percent of the work
day and would need to take a nap during the day for . . . about half an hour,” Dr. Sachs
responded, “No.”3 Id. at 140.
On February 27, 2015, the ALJ issued an opinion in which she found that Johnson “ha[d]
not been under a disability, as defined in the Social Security Act, from January 1, 2013, through
the date of th[e] decision.” ALJ Decision, R. at 55. At the first step, the ALJ found that Johnson
“ha[d] not engaged in any substantial gainful activity since January 1, 2013, the alleged onset
date.” Id. at 40. At the second step, the ALJ found that Johnson’s “degenerative disc disease,
depression, encephalopathy, and fibromyalgia” were “severe impairments” that “cause[d] a more
than minimal impact on the claimant’s ability to maintain and perform basic work activities.”4
Id. At the third step, the ALJ determined that Johnson’s impairments were not per se disabling
because Johnson “d[id] not have an impairment or combination of impairments that medically
me[t] or equal[ed] a listed impairment.” Id. at 42.
The ALJ then assessed Johnson’s residual functional capacity, and found that he could
“perform light work,” with certain limitations. Those limitations were that Johnson (1) was “able
3

The ALJ also asked about a hypothetical person who was “limited to lifting and carrying 10
pounds occasionally and less than 10 pounds frequently; standing and walking for two hyours
and sitting for up to six hours in an eight-hour day,” and “all the same limitations . . . used in
[the] prior hypo[thetical]s.” Tr. of ALJ Hr’g, R. at 140. Dr. Sachs replied that such a person
could not perform any of Johnson’s past jobs, and the ALJ did not inquire further because such a
person would be classified as disabled under the Medical-Vocational Grids. Id. at 140–41.
4

The ALJ ruled that Johnson’s “sleep apnea” and “obesity” were “non-severe impairments as
they d[id] not more than minimally affect the claimant’s ability to perform basic work activities,”
even when their “effects on the claimant’s other severe impairments . . . [were] taken into
account.” ALJ Decision, R. at 40 n.1 & 41.
6

to lift and carry [only] up to 20 pounds occasionally, and up to 10 pounds frequently,” (2) could
only “stand or walk for up to 6 hours of an 8 hour workday, [and] sit for up to 6 hours of an 8
hour workday,” (3) needed to “alternate sitting and standing at will throughout the workday,” (4)
could “never climb ladder[s], ropes, or scaffolds,” (5) could “occasionally climb ramps and
stairs,” and (6) could “occasionally balance, stoop, kneel, crouch, and crawl.” ALJ Singh also
limited Johnson to “understanding, remembering, and carrying out simple, routine, repetitive,
noncomplex tasks,” and “frequently perform[ing] fine and gross hand manipulations with the
upper left non-dominant extremity.” Id. at 45. Finally, she held that he “should avoid
concentrated exposure to hazards.” Id.
Although Johnson’s “residual functional capacity preclude[d] performance of [his] past
relevant work,” ALJ Singh concluded that “there are jobs that exist in significant numbers in the
national economy that [Johnson] c[ould] perform.” Id. at 54. “Based on the testimony of the
vocational expert”—i.e., Dr. Sachs—the ALJ ruled that Johnson was “capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.”
Id. at 55.”A finding of ‘not disabled [was] therefore appropriate,” and the ALJ denied Johnson’s
request for disability benefits. Id.
Johnson requested a review of the ALJ’s decision by the SSA’s Appeals Council on April
28, 2015. Request for Review of Hearing Decision/Order, R. at 20. Holding that there was “no
reason . . . to review the [ALJ]’s decision,” the Appeals Counsel “denied [Johnson’s] request for
review” on May 23, 2016. Notice of Appeals Council Action, R. at 1. Johnson then filed a
complaint before this court urging me to reverse the Commissioner’s decision on June 27, 2016.
Compl., Doc. No. 1.

7

III.

Discussion
On review, Johnson asserts that the ALJ’s “decision is not based on substantial evidence”

and that “the Commissioner erred as a matter of law.” Mem. Supp. Mot. Reverse, Doc. No. 13-1,
at 1. Specifically, he contends the ALJ’s residual functional capacity determination “was not
supported by substantial evidence,” id. at 3; that the ALJ “erred in her determination that []
Johnson lacked credibility,” id. at 7; that the ALJ wrongly “gave ‘great weight’ to the opinions of
non-examining state agency medical advisors” and less weight to some of “the opinions of the
treating physicians,” id. at 13, 14; that the ALJ incorrectly “rejected the [v]ocational experts’
testimony that [] Johnson would be unable to sustain employment”; and that the ALJ erroneously
“did not use all of the limitations in her own [residual functional capacity determination] when
questioning the second vocational expert, Dr. Sachs.” Id. at 22. The Commissioner responds that
the ALJ’s “findings are supported by substantial evidence and made by a correct application of
legal principles,” and should be affirmed. Mot. Affirm, Doc. No. 22, at 1.
A. Was the ALJ’s residual functional capacity determination supported by substantial
evidence?
Johnson argues that the ALJ’s residual functional capacity determination was not
supported by substantial evidence because it “did not include limitations for all of [Johnson’s]
severe impairments.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 4. In particular, Johnson
asserts that ALJ’s limitation to “understanding, remembering, and carrying out simple, routine,
repetitive, [and] noncomplex tasks, would be appropriate if he had a low IQ but . . . does not
address whether he would be off task for a percentage of the day due to his pain, loss of
concentration, or . . . need for naps and frequent breaks.” Id. Johnson also disputes the ALJ’s
finding that he “is frequently able to perform fine and gross manipulations with . . . his left
8

hand,” a conclusion, he contends, that was supported by “[n]one of his doctors, nor even the state
agency non-examining consultants.” Id. at 5. The Commissioner responds that the ALJ’s residual
functional capacity findings are adequately “supported by substantial evidence.” Mem. Supp.
Mot. Affirm, Doc. No. 22, at 5. I agree with the Commissioner, and therefore affirm the ALJ’s
residual functional capacity findings.
Between steps three and four of the SSA’s analysis for disability claims, the ALJ must
“determine[], based on all the relevant medical and other evidence of record, the claimant’s
‘residual functional capacity,’ which is what the claimant can still do despite the limitations
imposed by his impairment.” Greek, 802 F.3d at 373 n.2 (citing 20 C.F.R. § 404.1520(b)). The
ALJ’s determination need not “perfectly correspond with” any medical source opinion. Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order). Rather, the ALJ is “entitled to
weigh all of the evidence available to make a[] . . . finding that [is] consistent with the record as
a whole.” Id. In assessing a claimant’s residual functional capacity, SSA regulations require the
ALJ to “include a narrative discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations),” as well as “discuss[ing] the [claimant]’s ability to perform sustained
work activities in an ordinary work setting on a regular and continuing basis . . . and
describ[ing] the maximum amount of each work-related activity the [claimant] can perform
based on the evidence available in the case record.” Social Security Ruling 96-8p, 1996 WL
374184, at *7. Finally, the ALJ “must also explain how any material inconsistencies or
ambiguities in the evidence in the case record were considered and resolved.” Id.
In making a residual functional capacity determination in the present case, ALJ Singh

9

extensively considered Johnson’s complaints as well as his voluminous medical records. She
noted that an MRI taken on January 31, 2013, “showed only a mild disc bulge and mild
degenerative disc disease”; that a later MRI and EEG taken on July 3, 2013 “revealed no
abnormalities despite complaints of cognitive disturbance and memory problems”; and that
Johnson’s physiatrist, Pietro R. Memmo, MD, told Johnson in June 2013 that “the objective
studies were all normal, his neurological exam was completely normal, and . . . that his level of
pain was out of proportion to the objective findings.” ALJ Decision, R. at 46–47 (citing Letter
from Pietro A. Memmo, MD to Robert Reginio, MD (June 28, 2013), R. at 701 (“[T]he level of
pain and debility that [Johnson] is reporting is out of proportion with objective radiological
findings.”)). Around that same time, a neurosurgeon, David A. Kvam, MD, found that Johnson
“had normal gait, no difficulty heel walking, no difficulty independent toe standing, [and] no
difficulty with tandem walking,” and that his “muscle tone, sensation testing, and reflexes were
all normal.” Id. at 47 (citing Treatment Note by David A. Kvam, MD (June 6, 2013), R. at 696,
698 (“The complaint is moderate. . . . A normal neurological examination.”)). The ALJ also
pointed to an examination by Johnson’s psychologist, Randall E. Weeks, PhD, in September
2014, which “indicated that there was no neurologic explanation of [Johnson]’s subjective
complaints” and that a battery of psychological tests “failed to find any areas of impairment or
significant cognitive decline.” Id. (citing Letter from Randall E. Weeks, PhD, to Peter
McAllister, MD (Sept. 15, 2014), R. at 269–70 (“Test data failed to find any areas of impairment
or significant cognitive decline. The pattern of test results did not indicate a neurological
explanation for [Johnson’s] subjective cognitive complaints.”).
Other of Johnson’s doctors took a more severe view of his impairments. Johnson’s

10

neurologist, Peter McAllister, wrote a letter at Johnson’s attorney’s request expressing his
“strong clinical suspicion” that Johnson’s “constellation of cognitive complaints, profound
fatigue and widespread pain represent fibromyalgia.” Letter from Peter McAllister, MD to Anne
Hoyt (May 28, 2014), R. at 873. In another letter written at Johnson’s attorney’s request, Dr.
McAllister opined that Johnson “would need to take multiple breaks to rest (or even nap)
throughout the day,” that “[h]is current average daily pain level would generally be sufficient to
interfere with his ability to work, and to complete tasks on time,” and that “[h]is fatigue and
cognitive issues would likely increase his chance of errors at work.” Letter form Peter
McAllister, MD (Jan. 23, 2015), R. at 971. Dr. McAllister’s treatment notes also indicated that
Johnson complained of “[c]hronic fatigue, ‘since the’80’s,’ . . . but worse in [the] last 12
months,” and that an examination found “widespread tender points on an otherwise normal
exam.” Treatment Note by Peter McAllister, MD (Apr. 14, 2014), R. at 874. The ALJ gave
“[l]ittle weight” to Dr. McAllister’s opinions, concluding that they were “out of proportion to his
treatment notes as well as the treatment notes and opinions of other providers,” and in some
cases were also internally “inconsistent.”5 ALJ Decision, R. at 51–52.
With regard to Johnson’s own complaints, ALJ Singh gave them some weight, but
concluded that Johnson’s “testimony . . . concerning the severity of the . . . impairments [was]
not entirely consistent with the medical evidence of record, and as such, [was] not fully
credible.” Id. at 46. For instance, “despite [Johnson]’s complaints regarding his inability to
concentrate and cognitive issues,” the ALJ observed that “he has adequately advocated for

5

For example, on one form, Dr. McAllister “note[d] that [Johnson] could never lift more than
one pound, but in another part of th[e] same form he check[ed] off a box which indicate[d] that
[Johnson] c[ould] carry less than 10 pounds.” ALJ Decision, R. at 52 (citing Attending
Physicians Statement by Peter McAllister, MD (Sept. 17, 2014), R. at 943).
11

himself against his private insurance carrier by detailing his treatments to them via written
correspondence and gathering third party statement[s] to support his case.” Id. Furthermore,
“despite [Johnson]’s testimony that he sleeps for most of the day, is able to lift 5–10 pounds, sit
for up to 30 minutes, stand for 15–20 minutes, is chronically fatigued, has difficulty holding
objects, and does not do much walking, he also testified and indicated to providers that he was
able to exercise and lost 100 pounds, which included weightlifting.” Id. at 46–47. Hence, the
ALJ correctly “t[ook] the claimant’s reports of pain and other limitations into account” and
“exercise[d] discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam).
She did not, and “[was] not required to[,] accept the claimant’s subjective complaints without
question.” Id.; cf. Baladi v. Barnhart, 33 F. App’x 562, 564 (2d Cir. 2002) (summary order)
(“treating physician’s opinions . . . based upon plaintiff’s subjective complaints of pain and
unremarkable objective tests” were “not ‘well supported by medically acceptable clinical and
laboratory diagnostic techniques’” and not entitled to “controlling weight”) (citing 20 C.F.R. §§
404.1527(d)(2) , 416.927(d)(2)); Calabrese v. Astrue, 358 F. App’x 274, 277 (2d Cir. 2009)
(summary order) (“[W]here the ALJ’s decision to discredit a claimant’s subjective complaints
is supported by substantial evidence, [the court] must defer to his findings.”).
In short, Johnson’s case presented a significant quantity of conflicting medical evidence,
with largely normal test results and doctors who disagreed on the nature, severity, and cause of
his symptoms. Because “[g]enuine conflicts in the medical evidence are for the Commissioner to
resolve,” the ALJ was entitled to “choose between properly submitted medical opinions” and to
consider “other substantial evidence in the record, such as . . . a negative MRI,” in determining

12

Johnson’s residual functional capacity. See Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008);
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002); Balsamo v. Chater, 142 F.3d 75, 81 (2d
Cir. 1998). Although ALJ Singh apparently thought that Johnson plausibly could be
characterized as able “to perform the full range of light work”—in which case “a finding of ‘not
disabled’ would be directed” by the Medical-Vocational Guidelines—she took his subjective
complaints into account and held that Johnson’s “ability to perform . . . substantially all of the
requirements of th[at] level of work ha[d] been impeded by additional limitations.” ALJ
Decision, R. at 55. In crafting those limitations, the ALJ relied on substantial evidence in the
form of Johnson’s testimony, id. at 45–47, “diagnostic testing,” id. at 47, “[t]reatment notes,” id.
at 48, and “opinions” by consultative and examining physicians. Id. at 50–53.
Johnson nevertheless objects that the ALJ “did not include limitations for . . . his inability
to complete tasks in a timely manner,” or “his inability to maintain sustained work activity
[eight] hours a day, [five] days a week.” See Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 4.
Those criticisms, however, simply reflect Johnson’s disagreement with the relative weight the
ALJ placed on his additional limitations. “[O]nce an ALJ finds facts, [I] can reject those facts
only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448
(internal quotation marks omitted). Here, I hold that a reasonable factfinder need not perforce
conclude that Johnson requires limitations for “inability to complete tasks in a timely manner”
and “inability to maintain sustained work activity.” Contra Mem. Supp. Mot. Reverse, Doc. No.
13-1, at 4. Thus, I affirm the ALJ’s findings in those respects.
Johnson also contends that the ALJ erred by “determin[ing] that [] Johnson is frequently
able to perform fine and gross manipulations with [] his left hand,” because “[n]one of his

13

doctors, nor even the state agency non-examining consultants, opined that [Johnson] could
‘frequently’ use his left hand.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 5. But the doctors’
opinions were hardly unanimous with regard to Johnson’s manipulative limitations. Two of
Johnson’s treating physicians, Dr. McAllister and Dr. Robbins, “assessed [Johnson] to be limited
to 33 [percent] of an [eight] hour day in his ability to reach, perform computer keyboarding, or
use a mouse,” which would equate to “occasionally” performing fine and gross manipulations
under Social Security regulations. See id. at 5–6 (citing Attending Physicians Statements, R. at
943, 948). One of the state agency medical consultants, Dr. Honeychurch, agreed that Johnson
was “limited to only ‘occasional’ fingering with his left upper extremity.” Id. at 6 (citing
Disability Determination Explanation (Reconsideration), R. at 173). But—as Johnson himself
admits—the other state agency medical consultant, Dr. Wurzel, “opined that [Johnson] had no
manipulative limitations.” Id. (citing Disability Determination Explanation (Initial), R. at 151).
The ALJ rationally could compare those opinions and conclude that Johnson’s manipulative
limitation was properly set somewhere between “occasional” use and no limitation at all—in
other words, at “frequent” use. See Veino, 312 F.3d at 588 (“Genuine conflicts in the medical
evidence are for the Commissioner to resolve.”); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d
Cir. 1983) (per curiam) (“[T]he report of a consultative physician may constitute [substantial]
evidence.”). Even if “the administrative record may also adequately support” the conclusion that
Johnson was limited to “occasional” use of his hand, the ALJ’s “contrary finding[]” is supported
by substantial evidence and “must be given conclusive effect.” See Genier, 606 F.3d at 49.
Under that “very deferential standard of review,” I consider the ALJ’s residual functional
capacity finding to have been based on “such relevant evidence as a reasonable mind might

14

accept as adequate to support a conclusion.” Id. at 448; Greek, 802 F.3d at 375. Therefore,
because “there is substantial evidence to support the determination,” I affirm the ALJ’s decision
on that point. See Selian, 708 F.3d at 417.
B. Did the ALJ properly find that Johnson lacked credibility?
Johnson also argues that the ALJ wrongly “determin[ed] that [] Johnson lacked
credibility” and improperly “rejected the parts of [] Johnson’s testimony that he sleeps for most
of the day and is chronically fatigued.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 7–8. The
Commissioner responds that the ALJ correctly exercised her “discretion to evaluate [Johnson]’s
credibility in light of the evidence of the record.” Mem. Supp. Mot. Affirm, Doc. No. 22, at 12.
Under SSA regulations, “[w]hen determining a claimant’s [residual functional capacity],
the ALJ is required to take the claimant’s reports of pain and other limitations into account.”
Genier, 606 F.3d at 49. The ALJ is not, however, “required to accept the claimant’s subjective
complaints without question; he may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence in the record.” Id. “Credibility findings of an
ALJ are entitled to great deference and . . . can be reversed only if they are patently
unreasonable.” Pietrunti v. Dir., Off. of Workers’ Comp. Programs, 119 F.3d 1035, 1042 (2d Cir.
1997) (internal quotation marks omitted); see Aponte, 728 F.2d at 591 (“If the Secretary’s
findings are supported by substantial evidence, the court must uphold the ALJ’s decision to
discount a claimant’s subjective complaints of pain.”). I do not consider the the ALJ’s credibility
findings to have been “patently unreasonable” or unsupported by “substantial evidence,” and
therefore affirm them. See Pietrunti, 119 F.3d at 1042; Aponte, 728 F.2d at 591.
SSA regulations “provide a two-step process for evaluating a claimant’s assertions of

15

pain and other limitations.” Genier, 606 F.3d at 49. “At the first step, the ALJ must decide
whether the claimant suffers from a medically determinable impairment that could reasonably be
expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. § 404.1529(b)). “If the
claimant does suffer from such an impairment, at the second step, the ALJ must consider ‘the
extent to which [the claimant’s] symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence’ of record,’” after taking into account
“[s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his]
daily activities, [his] efforts to work, or any other relevant statements [h e] make[s] to medical
sources during the course of examination or treatment, or to [the agency] during interviews, on
applications, in letters, and in testimony in [its] administrative proceedings.” Id. (quoting 20
C.F.R. § 404.1512(b)(1)(iii)). Ultimately, “[a]s a fact-finder, the ALJ has the discretion to
evaluate the credibility of a claimant,” Pietrunti, 119 F.3d at 1042 (internal quotation marks
omitted), and “[i]t is the function of the [ALJ], not the reviewing courts, . . . to appraise the
credibility of witnesses, including the claimant,” Aponte, 728 F.2d at 591 (brackets omitted).
In the instant case, the ALJ found that Johnson suffered from the “severe impairments” of
“degenerative disc disease, depression, encephalopathy, and fibromyalgia,” ALJ Decision, R. at
40, and so apparently determined that Johnson “suffer[ed] from a medically determinable
impairment that could reasonably be expected to produce the symptoms alleged.”6 Genier, 606
F.3d at 49 (citing 20 C.F.R. § 404.1529(b)). At the second stage, however, the ALJ concluded
that Johnson’s claimed symptoms could not “reasonably be accepted as consistent with the
objective medical evidence and other evidence of record.” See Genier, 606 F.3d at 49 (internal
6

The ALJ discounted Johnson’s complaints with regard to other disorders, such as sleep apnea
and obesity. See ALJ Decision, R. at 40 n.1 & 41. Johnson does not appear to have challenged
her decision with regard to those illnesses.
16

quotation marks omitted). She noted, for instance, that notwithstanding Johnson’s repeated
“complaints regarding his inability to concentrate and cognitive issues,” neurological exams over
a period of nearly two years “failed to find any areas of impairment or significant cognitive
decline.” See ALJ Decision, R. at 46. Physical exams over the same period were likewise
“normal” and failed to substantiate Johnson’s claims of intense pain, to the extent that one of
Johnson’s own doctors “advised [him] that [the] level of pain and debility that he was reporting
was out of proportion with objective radiological findings.” Id. at 47.
So too, the ALJ found Johnson’s testimony inconsistent with “other statements with
respect to his daily activities.” See Genier, 606 F.3d at 50. For example, “[d]espite [Johnson]’s
testimony that he sleeps for most of the day, is able to lift 5–10 pounds, sit for up to 30 minutes,
stand for 15–20 minutes, is chronically fatigued, has difficultly holding objects, and does not do
much walking,” Johnson was able to lose 100 pounds through diet and exercise, and was
described by his nutritionist as “one of [her] top [three] clients in his dedication to weight loss
and desire to regain his health.” ALJ Decision, R. at 46–47; see Letter from Rita Anderson (Dec.
2, 2013), R. at 793; see also Progress Notes by Rita Anderson, R. at 795 (reporting that Johnson
performed “moderate exercise”). Johnson also reported that he completed “stretching exercises”
several times per day, Activities of Daily Living (Jan. 14, 2013), R. at 319; “daily” cooked
“complete nutritional meals as recommended by [his] dietician for weight loss,” id. at 321;
“[d]aily” walked and drove alone outside, id. at 322; and could “lift 20 to 25 pounds.” Id. at 324.
“[A] claimant need not be an invalid to be found disabled under the Social Security Act,”
Balsamo, 142 F.3d at 81, but the ALJ reasonably could have found that Johnson’s relatively high
level of activity, his impressive weight loss, and his ordinary medical records “weighed against a

17

positive credibility finding [with regard] to [Johnson]’s subjective assessment of the intensity of
his symptoms.” Campbell v. Astrue, 465 F. App’x 4, 7 (2d Cir. 2012) (summary order);
Calabrese, 358 F. App’x at 277–78 (“[T]he ALJ’s adverse credibility finding was . . . amply
supported by evidence that [the claimant] . . . admitted her ability to cook, clean, do laundry,
shop, and handle her own finances despite her professed claims of disabling and continuous pain
and mental confusion.”). Hence, “the ALJ’s decision to discount [Johnson]’s subjective
complaints is supported by substantial evidence.” See Calabrese, 358 F. App’x at 278.
Johnson insists that “it is just wrong to fault a person for following doctors’
recommendations to improve [his] health,” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 11, but
that confuses the issue. To be sure, the Second Circuit has stated that “[w]hen a disabled person
gamely chooses to endure pain in order to pursue important goals, . . . it would be a shame to
hold th[at] endurance against him in determining benefits unless his conduct truly showed that he
is capable of working.” Balsamo, 142 F.3d at 81–82 (emphasis added). But the question is not
simply whether Johnson “reported pain” or was otherwise negatively impacted by his condition,
for “disability requires more than mere inability to work without pain.” See Dumas v. Schweiker,
712 F.2d 1545, 1552 (2d Cir. 1983); Prince v. Astrue, 490 F. App’x 399, 400 (2d Cir. 2013)
(summary order). “To be disabling, pain must be so severe, by itself or in conjunction with other
impairments, as to preclude any substantial gainful employment.” Dumas, 712 F.2d at 1552
(emphasis added). Here, the ALJ considered Johnson’s subjective complaints, his doctors’
opinions, and the medical record as a whole, and concluded that Johnson was “capable of
working” because his limitations did not “preclude any substantial gainful employment.” See
Balsamo, 142 F.3d at 82; Dumas, 712 F.2d at 1552. Because “[t]here was substantial medical

18

evidence in the record that supported the ALJ’s determination that [Johnson] was able to
undertake a variety of physical tasks, and it is clear that the ALJ took into consideration
[Johnson]’s legitimate limitations . . . [in] the [residual functional capacity] determination,” I
affirm the ALJ’s appraisal of Johnson’s credibility. See Prince, 490 F. App’x at 400.
C. Did the ALJ correctly evaluate the medical opinion evidence?
Johnson challenges the ALJ’s treatment of the medical opinion evidence on two fronts.
First, he objects to the ALJ’s decision to “g[ive] great weight to the opinions of [state] nonexamining physicians.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 13. Second, he argues that
the ALJ incorrectly gave only “limited” and “partial weight” to the opinions of two of Johnson’s
treating physicians, Dr. McAllister and Dr. Robbins. Id. at 15. The Commissioner replies that the
ALJ “appropriately assigned the[] [s]tate agency physician and psychological opinions great
weight” and “provided lengthy discussions of her reasons for affording less than controlling
weight to the [treating] physician opinions.” Mem. Supp. Mot. Affirm, Doc. No. 22, at 6, 8. With
regard to both sets of opinions, I affirm the ALJ’s ruling.
“The treating physician rule provides that an ALJ should defer to ‘to the views of the
physician who has engaged in the primary treatment of the claimant,’” but need only assign those
opinions “controlling weight” if they are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in
[the] case record.”7 Cichocki v. Astrue, 534 F. App’x 71, 74 (2d Cir. 2013) (summary order)
(quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 20 C.F.R. §

7

Originally a rule devised by the federal courts, the treating physician rule is now codified by
SSA regulations, but “the regulations accord less deference to unsupported treating physician’s
opinions than d[id] [the Second Circuit’s] decisions.” See Schisler v. Sullivan, 3 F.3d 563, 567
(2d Cir. 1993).
19

404.1527(c)(2)). When the ALJ “do[es] not give the treating source’s opinion controlling
weight,” he must “apply the factors listed” in SSA regulations, 20 C.F.R. § 404.1527(c)(2),
including “(1) the frequency, length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical
evidence; and (4) whether the physician is a specialist.” Selian, 708 F.3d at 418. After
considering those factors, the ALJ must “comprehensively set forth [his] reasons for the weight
assigned to a treating physician’s opinion,” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.
2004), and provide “good reasons” for the weight assigned, Burgess, 537 F.3d at 129. But
“where the ALJ’s reasoning and adherence to the regulation are clear,” the ALJ need not
“slavish[ly] recite[] each and every factor” listed in the regulations. Atwater v. Astrue, 512 F.
App’x 67, 70 (2d Cir. 2013) (summary order). Moreover, “[g]enuine conflicts in the medical
evidence are for the Commissioner”—not the court—“to resolve.” Burgess, 537 F.3d at 128.
The Second Circuit has “cautioned that ALJs should not rely heavily on the findings of
consultative physicians after a single examination,” and has advised that, ordinarily, “a
consulting physician’s opinions or reports should be given little weight.” Selian, 708 F.3d at 419;
Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). In some circumstances, however, “the report of a
consultative physician may constitute [substantial] evidence” that, if it “contradict[s]” the
opinion of a treating physician, renders the latter “not binding.” See Mongeur, 722 F.2d at 1039;
see also Prince, 490 F. App’x at 401 (“[C]onsultative examinations were still rightly weighed as
medical evidence.”); Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (summary order)
(“The report of a consultative physician may constitute . . . substantial evidence.”). The question
here is whether the ALJ sufficiently provided “good reasons” for weighing the opinions of the

20

consultative physicians—Dr. Honeychurch, Dr. Wurzel, and Dr. Leib—more heavily than the
opinions of Johnson’s treating physicians. See Burgess, 537 F.3d at 129.
The ALJ stated that she “gave great weight to the opinions of the [state] non-examining
physicians” because they “were all consistent with [her] findings regarding residual functional
capacity, and . . . were also consistent with the medical evidence of record.” ALJ Decision, R. at
50. Although the physicians “were not able to treat the claimant, they had the opportunity to
review much of the evidence in the file,” and their opinions were “consistent with the [medical]
evidence” and the opinions of two of Johnson’s treating physicians, Dr. Memmo and Dr. Weeks.
Id. (citing Letter from Pietro A. Memmo, MD to Robert Reginio, MD (June 28, 2013), R. at 701
(stating that he “advised [Johnson] that the level of pain and debility that he [was] reporting
[was] out of proportion with objective radiological findings”); Letter from Randall E. Weeks,
PhD, to Peter McAllister, MD (Sept. 15, 2014), R. at 269–70 (reporting that “[t]est data failed to
find any areas of impairment or significant cognitive decline” and that “test results did not
indicate a neurological explanation for [Johnson’s] subjective cognitive complaints”)).
Conversely, the ALJ assigned “[l]ittle weight” to the opinions of Dr. McAllister because
they were “out of proportion to his treatment notes as well as the treatment notes and opinions of
other providers.” Id. at 51. For example, on May 28, 2014—the same day that he wrote a letter at
Johnson’s attorney’s request reporting that Johnson’s “fatigue and encephalopathy . . .
continue[d] to cause significant functional disability,” see Letter from Peter McAllister, MD to
Anne Hoyt (May 28, 2014), R. at 873—Dr. McAllister recorded in a treatment note that
Johnson’s back exhibited “no tenderness” and that he had “[n]ormal affect, memory, mentation,
speech and language function,” and had “[n]ormal motor tone, bulk and strength throughout.”

21

Treatment Note by Peter McAllister, MD (May 28, 2014), R. at 876. Likewise, the ALJ gave
only “[p]artial weight” to the opinion of Dr. Robbins because his “opinion was . . . inconsistent
with the treatment notes contained in the record.” ALJ Decision, R. at 52. Dr. Robbins issued a
very restrictive opinion despite “diagnostic testing, which revealed no significant abnormalities,
as well as Dr. Robbins’[s] own treatment notes[,] which indicated that [Johnson]’s brain MRI
revealed no abnormalities.” Id. at 52–53. Both Dr. McAllister’s and Dr. Robbins’s opinions were
inconsistent with those of Johnson’s other treating physicians, such as his neurosurgeon, Dr.
Kvam, and his infectious disease specialist, Lisa Chirch, MD (who “examined [Johnson] but
found no musculoskeletal, neurological, or psychiatric abnormalities”).8 Id. at 53.
The inconsistencies between the opinions of Dr. McAllister and Dr. Robbins, on the one
hand, and their treatment notes and the opinions of other physicians, on the other, presented a
“[g]enuine conflict[] in the medical evidence . . . for the Commissioner to resolve.” See Burgess,
537 F.3d at 128. As the Second Circuit recently held, where a doctor’s opinion is “in conflict
with content in that doctor’s own clinical notes, and in conflict with the opinion of [other
physicians],” those factors “constitute ‘good reasons’ for the limited weight attributed.” Camille
v. Colvin, 562 F. App’x 25, 27 (2d Cir. 2016) (summary order). Furthermore, even if “the record
contains evidence” that might support Dr. McAllister’s and Dr. Robbins’s opinions, it also
“contains substantial evidence supporting the conclusion[s]” drawn by the other treating
physicians and by the ALJ. Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 76 (2d Cir. 2012)
(summary order). Because “[i]t is not [my] function to determine de novo whether [Depoto] is

8

The ALJ did err, however, in stating that “Dr. Robbins’[s] report is inconsistent with itself in
that he indicates the claimant can walk for 30 minutes . . . [but] could only stand for 20 minutes.”
See ALJ Decision, R. at 52. As anyone who has spent a day at a museum can attest, it is entirely
possible for a person to be tired more by standing still for an extended period than by walking.
22

disabled,” Brault, 683 F.3d at 447, nor “to resolve evidentiary conflicts” in the record, Aponte v.
Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984), I affirm the ALJ’s
decision not to give controlling weight to Dr. McAllister’s and Dr. Robbins’s opinions.
For the same reasons, I conclude that—after he decided not to give Dr. McAllister’s and
Dr. Robbins’s opinions controlling weight—ALJ Singh properly evaluated the persuasiveness of
the opinions under the factors listed in 20 C.F.R. § 404.1527(c)(2)–(6). “An ALJ need not recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the court]
to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013). Here, the ALJ was sufficiently specific in writing that Dr. McAllister’s and Dr. Robbins’s
opinions were “all out of proportion to [their] treatment notes” and the “opinions of other
providers,” including Johnson’s other treating physicians. See ALJ Decision, R. at 51; Camille,
562 F. App’x at 28 (“The ALJ was permitted to consider Dr. [McAllister]’s treatment notes in
weighing the opinions of Dr. [McAllister] and [the other sources]; and []he was permitted to
conclude that [the other doctors’] opinions w[ere] more reliable.”). Hence, I affirm the ALJ with
regard to his treatment of the doctors’ medical opinions.
D. Did the ALJ properly consider the vocational experts’ testimony?
Johnson further argues that the ALJ incorrectly “reject[ed] both of the vocational experts’
testimony.” Mem. Supp. Mot. Reverse, Doc. No. 13-1, at 23. Johnson notes that “[w]hen . . .
limitations” concerning Johnson’s “need for naps and frequent breaks, his inability to remain on
task or to complete tasks in a timely manner, and his inability to maintain sustained work activity
[eight] hours a day, [five] days a week” were “addressed to the vocational experts, they both
testified that there would be no work.” Id. at 23. The Commissioner responds that “it was not

23

necessary for the ALJ to include in her hypothetical question to the vocational expert, symptoms
and limitations [that] the ALJ reasonably rejected.” Mem. Supp. Mot. Affirm, Doc. No. 22, at 13.
The Commissioner is correct.
“The ALJ,” not the vocational expert, “is responsible for determining, based on all the
evidence, the claimant’s physical capabilities.” Dumas, 712 F.2d at 1554 n.4. Here, after
considering Johnson’s physical capabilities, the ALJ declined to limit him to requiring frequent
breaks and being unable to remain on task. As noted above, that residual functional capacity
finding was supported by substantial evidence. See id. at 1554. Having determined Johnson’s
residual functional capacity, “the ALJ properly declined to include in [her] hypothetical question
symptoms and limitations that [s]he had reasonably rejected,” and an opinion by the vocational
expert based on those discredited symptoms does not provide grounds to reverse the ALJ’s
decision. See Priel v. Astrue, 453 F. App’x 84, 87–88 (2d Cir. 2011) (summary order).
E. Did the ALJ accurately describe Johnson’s functional limitations when questioning the
vocational experts?
Johnson identifies one final basis for reversal. The ALJ’s residual functional capacity
finding limited Johnson to “frequently perform[ing] fine and gross hand manipulations with the
upper left non-dominant extremity.” ALJ Decision, R. at 45. At the hearing, however, the ALJ
only asked the vocational expert, Dr. Sachs, to consider a hypothetical person with a limitation to
“frequent . . . gross hand manipulations of the left upper extremity.” ALJ Hr’g Tr., R. at 139
(emphasis added). Johnson contends that was error. Mem. Supp. Mot. Reverse, Doc. No. 13-1, at
24. I agree, and remand to the Commissioner for further development of the record.
After a claimant has proved that his or her residual functional capacity precludes a return
to “past relevant work,” Greek, 802 F.3d at 373 n.2 (citing 20 C.F.R. §§ 404.1520(e), (f),
24

404.1560(b)), there is a “limited burden shift” to the Commissioner to show that “there is work
in the national economy that the claimant can do.” Poupore, 566 F.3d at 306. The ALJ may carry
that burden “either by applying the Medical Vocational Guidelines or by adducing testimony of a
vocational expert.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014). “A vocational expert
may provide testimony regarding the existence of jobs in the national economy and whether a
particular claimant may be able to perform any of those jobs given his or her functional
limitations.” Hamilton v. Comm’r of Soc. Sec., 105 F. Supp. 3d 223, 229 (N.D.N.Y. 2015) (citing
Dumas, 712 F.2d at 1553–54). For the vocational expert’s testimony “to be considered reliable,”
however, “the hypothetical posed must include all of the claimant’s functional limitations . . .
supported by the record.” Horbock v. Barnhart, 210 F. Supp. 2d 125, 134 (D. Conn. 2002)
(quoting Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995)).
If the ALJ “ask[s] the vocational expert a hypothetical question that fail[s] to include or
otherwise implicitly account for all of [the claimant]’s impairments,” then “the vocational
expert’s testimony is not ‘substantial evidence’ and cannot support the ALJ’s conclusion that
[the claimant] c[an] perform significant numbers of jobs in the national economy.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir. 2011); see also Lancaster v. Comm’r of
Soc. Sec., 228 F. App’x 563, 573 (6th Cir. 2007) (unpublished) (“If the hypothetical question
does not accurately portray Plaintiff’s physical and mental state, [then] the vocational expert’s
testimony in response to the hypothetical question may not serve as substantial evidence in
support of the ALJ’s finding that Plaintiff could perform other work.”); Medovich v. Colvin,
2015 WL 1310310, at *14 (N.D.N.Y. Mar. 23, 2015) (“[E]xpert vocational testimony given in
response to hypothetical questions that do not present the full extent of claimants’ impairments,

25

limitations[,] and restrictions . . . cannot constitute substantial evidence to support a conclusion
of no disability.”). In such circumstances, the ALJ’s decision may be upheld only if the error was
“harmless,” that is, if other “substantial evidence in the record” supports the ALJ’s conclusions.
See McIntyre, 758 F.3d at 152; cf. Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008).
Here, ALJ Singh did not fully describe Johnson’s residual functional capacity to Dr.
Sachs. The ALJ found that Johnson was limited to “frequent[] . . . fine and gross hand
manipulations,” ALJ Decision, R. at 45, but she asked the vocational expert only to consider
“frequent . . . gross hand manipulations.” ALJ Hr’g Tr., R. at 139 (emphasis added). The
distinction is not inconsequential: Social Security regulations indicate that “gross manipulation
involves reaching (extending the hands and arms in any direction), and handling (seizing,
holding, grasping, turning or otherwise working primarily with the whole hand or hands,”
whereas “fine manipulation involves fingering (picking, pinching or otherwise working primarily
with the fingers) or feeling.” Rivera v. Sullivan, 771 F. Supp. 1339, 1353 (S.D.N.Y. 1991) (citing
SSR 83-14, 1983 WL 31254, at *1–*2) (internal quotation marks omitted). “‘Most sedentary
jobs require good use of the hands and fingers’ for fine movements such as picking, pinching,
holding, grasping, and turning.” Horbock, 210 F. Supp. 2d at 136 (quoting SSR 96-9p, 1996 WL
374185, at *8)). Moreover, some jobs that can be performed with limited “gross” hand
manipulations require unimpaired “fine” hand manipulations, and so the ALJ’s omission of
Johnson’s additional restriction means that he may “not [be able to] do any of the jobs” that the
vocational expert described. See id. Indeed, after ALJ Singh informed Dr. Sachs of Johnson’s
“gross” hand manipulation restriction, the vocational expert replied that the limitation excluded
one of the three jobs he had said that Johnson could perform. See ALJ Hr’g Tr., R. at 139–40.

26

The Commissioner argues that the error was harmless.9 I disagree. The Commissioner
points to the SSA’s Selected Characteristics of Occupations, which, she asserts, shows that the
jobs identified by Dr. Sachs do not require more than “frequent[] . . . fine and gross hand
manipulations.” Cf. ALJ Decision, R. at 45. Even if the Commissioner is correct, however, the
ALJ did not rely on the Selected Characteristics of Occupations, and her decision must “stand[]
or fall[] on the reasons given.” Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2006);
see SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). I cannot “assume a hypothetical basis for
the [ALJ]’s determination, even one based in the record.” Zhong, 480 F.3d at 117.
Of course, “agency errors do not always warrant remand,” and in a different context, the
Second Circuit has held that remand of an administrative appeal is “futile (a) when the [ALJ]
articulates an alternative and sufficient basis for her determination; (b) when her reliance on the
erroneous aspect of her reasoning is substantially tangential to her non-erroneous findings; or (c)
when overwhelming evidence in the record makes it clear that the same decision is inevitable.”
Id.; see also McIntyre, 758 F.3d at 148 (applying harmless error analysis to a Social Security
appeal). None of those exceptions applies here. The ALJ explicitly stated that she “[b]ased” her
finding that Johnson was “capable of making a successful adjustment to other work that exists in
significant numbers in the national economy” on “the testimony of the vocational expert.” ALJ
Decision, R. at 55. Far from the ALJ “articulat[ing] an alternative and sufficient basis for her
determination,” or “overwhelming evidence in the record mak[ing] it clear that the same decision
is inevitable,” Zhong, 480 F.3d at 117, the vocational expert’s inadequate testimony is the only
9

The Commissioner also suggests that the ALJ did not err at all, because Johnson’s activities of
daily living—which describe regular cooking and use of an iPad—belie his claim that his fine
manipulation skills are limited. As I noted supra at 13–14, however, “substantial evidence”
supports the ALJ’s finding that Johnson was restricted in his fine hand manipulations, and that
determination “must be upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam).
27

evidence in the record that supports the ALJ’s findings with regard to Johnson’s ability to
perform other work. Nor was the ALJ’s error “tangential.” Id. The mistake was essential to the
ALJ’s finding that Johnson was “not disabled” because he could “adjust[] to other work,” see
ALJ Decision, R. at 55—a step of the disability determination on which the Commissioner bore
the burden of proof. See Poupore, 566 F.3d at 306.
When the Second Circuit has deemed an inaccurate hypothetical in a Social Security
disability determination to be “harmless,” it has done so “because the hypothetical question
posed to the vocational expert implicitly (and sufficiently) accounted for [the claimant]’s
particular non-exertional limitations.” McIntyre, 758 F.3d at 148. Specifically, in McIntyre, the
ALJ’s hypothetical did not “explicitly incorporate [the claimant’s] limitations in concentration,
persistence, and pace.” Id. at 152. The court held that omission was error, but concluded the error
was harmless because the ALJ “explicitly limit[ed]” the hypothetical to “simple, routine, low
stress tasks,” which “implicitly account[ed] for [the] claimant’s limitations in concentration,
persistence, and pace.” Id. (quoting Winschel, 631 F.3d at 1180). Furthermore, the Second
Circuit held, “substantial evidence in the record demonstrate[d] that [the claimant] c[ould]
engage in ‘simple, routine, low stress tasks.’” Id. Thus, the ALJ’s mistake in McIntyre did not
merit remand because it proved “inconsequential to the ultimate nondisability determination.”
See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Spiva v. Astrue, 628 F.3d
346, 353 (7th Cir. 2010) (stating that in the context of “judicial review of administrative
decisions,” error is harmless when the “decision is overwhelmingly supported by the record”).
In the present case, the ALJ’s finding that Johnson was “capable of making a successful
adjustment to other work” is not “overwhelmingly supported by the record.” ALJ Decision, R. at

28

55; cf. Spiva, 628 F.3d at 353. To the contrary, the ALJ’s conclusion is only supported by the
opinion of the vocational expert, given in response to an incomplete hypothetical. An opinion
reliant on an inaccurate hypothetical does not constitute “substantial evidence.” See Winschel,
631 F.3d at 1181. Because no other evidence supports the ALJ’s determination with regard to
Johnson’s ability to perform other work, her finding of “not disabled” is “not supported by
substantial evidence in the record,” and must be remanded. See Greek, 802 F.3d at 374–75.
IV.

Conclusion
I deny the Commissioner’s motion to affirm, and grant Johnson’s motion to reverse to the

extent that it asks that I vacate the decision of the Commissioner. I remand for further
development of the record with respect to Johnson’s ability to perform other work that exists in
significant numbers in the national economy.
The Clerk shall enter judgment, effect remand to the Commissioner, and close the case.

So ordered.
Dated at Bridgeport, Connecticut, this 1st day of June 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

29