Torres v. Commissioner of Social Security

Filing 17

MEMORANDUM DECISION AND ORDER dated 11/16/15 plaintiff's 9 Motion for Judgment on the Pleadings is GRANTED and the Commissioner's 12 cross-motion for judgment on the pleadings is DENIED. The case is remanded. The ALJ shall apply the proper legal standards regarding plaintiffs primary care physician, Dr. Staniloiu, and shall explain the basis for his RFC determination that plaintiff can frequently use his hands and fingers, or will develop the record further on this point. ( Ordered by Judge Brian M. Cogan on 11/16/2015 ) *Forwarded for jgm (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
ANTHONY TORRES,
:
Plaintiff,
:
: MEMORANDUM DECISION AND
- against : ORDER
:
COMMISSIONER OF SOCIAL SECURITY,
: 14 Civ. 6712 (BMC)
:
Defendant.
:
:
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COGAN, District Judge.
Plaintiff challenges the decision of the Commissioner, after a hearing before an
Administrative Law Judge, that he is not disabled for purposes of receiving supplemental
security income under the Social Security Act. There is no dispute that plaintiff has severe
orthopedic impairments consisting of cervical stenosis, surgically fused discs, and right shoulder
impingement syndrome. The question is whether his back problems were sufficiently alleviated
by surgery to leave him with sufficient functional capacity to perform light work with restrictions
on reaching, climbing, or stooping. The case is before the Court on the parties’ cross-motions
for judgment on the pleadings. For the reasons set forth below, the case is remanded to the
Commissioner for further proceedings consistent with this opinion.
BACKGROUND
I.

Procedural History
Plaintiff applied for disability insurance benefits on November 3, 2010, alleging

disability since January 31, 2009, due to neck, back, shoulder, hand, knee, and foot pain;
stomach disease; and breathing problems. His claim was denied on August 4, 2011. A hearing
was held before an Administrative Law Judge, at which plaintiff appeared with counsel and
testified. The ALJ denied plaintiff’s claim, finding that plaintiff could perform a range of light

work and therefore was not disabled. The Appeals Council denied plaintiff’s request for review,
and this appeal followed.
II.

Non-Medical Facts
Plaintiff was born in 1968 and obtained a general equivalency diploma. Plaintiff worked

as construction worker between 2004 and 2009 and testified that this is the only type of work he
has ever done.
Plaintiff had a colon resection surgery in April 2009. Following that surgery, plaintiff
began to experience severe left-sided pain radiating to his shoulder, neck pain, and numbness in
his hands and fingers. Following an evaluation, in October 2009, plaintiff had a cervical
herniated disc removed. From November 2009 through September 2010, plaintiff’s cervical pain
was better, but he had an increase in the impingement pain in his right shoulder. In February
2010, he noted that after sleep he had some tingling in the tips of his fingers. A few months
later, plaintiff attempted to return to construction work, but could not do so because of the pain.
He noted increasing pain in his neck, shoulder blades, shoulder; as well as tingling in his hands.
In January 2011, after plaintiff had additional surgery he generally reported that his pain had
decreased, but reported musculoskeletal pain when he tried to return to activity.
Plaintiff testified that he was unable to work due to severe pain and numbness in hands.
Additionally, plaintiff said he had difficulty bending over to take off his shoes; was unable to
stay still or sit for more than twenty minutes; had intermittent numbness in his hands, fingers,
and feet; pain in his neck, shoulders, and lower back that requires use of a brace; and poor sleep.
He testified that there are times when he has to put down what he is holding in his hands because
of the pain and numbness. Plaintiff testified that lying down does not alleviate his symptoms,

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and that any use of his body exacerbates his symptoms. Plaintiff takes oxycodone for the pain,
but that medication makes him feel drowsy
Plaintiff lives with his girlfriend, he generally takes care of his own personal needs, but
his girlfriend has to help him take off his shoes. Plaintiff testified that most of the time he is at
home, he spends roughly an hour or two a day on the computer. Plaintiff testified that he usually
only leaves home to attend doctor’s appointments.
III.

Medical Evidence of Back and Neck Pain
A. Treating Physicians
Plaintiff has a well-documented history of back and neck problems requiring surgery. In

addition, plaintiff had thyroid surgery that impacted his neck and back. Plaintiff mainly received
treatment from Dr. Chris Overby, a neurosurgeon, Dr. Sanford Dubner, an endocrinologist, and
Dr. Maria Staniloiu, plaintiff’s primary care provider.
Plaintiff’s back and neck pain began in April 2009 after he underwent colon resection
surgery. Roughly a month after this surgery, plaintiff met with Dr. Overby. Plaintiff complained
of numbness in his hands, especially when elevated. An MRI of plaintiff showed he had central
disc herniation with significant compression of the spinal cord, moderate narrowing of the spinal
canal tied to bone spurs, and a mild congenitally narrowed spinal canal. Around this time,
plaintiff also had a biopsy of a right thyroid nodule, but further examination of this issue was
postponed until after plaintiff’s spinal surgery. On October 26, 2009, Dr. Overby operated on
plaintiff to remove his herniated disc.
Following the surgery, plaintiff met with Dr. Overby regularly for follow-up
appointments. From October 2009 through April 2010, plaintiff’s back recovered well.
However, he experienced an exacerbation of impingement syndrome in his right shoulder and

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noticed tingling in the tips of his fingers. In April 2010, plaintiff attempted to return to work in
construction. Plaintiff began to have pain in his neck, shoulder blade area, and shoulder, along
with increasing tingling in his hands. Dr. Overby said that plaintiff’s return to construction work
was the only change that could account for this increase in pain. He also stated that “his job is
exacerbating his rather significant symptoms.” Dr. Overby recommend plaintiff have another
MRI, which was undertaken on May 21, 2010.
Plaintiff’s MRI showed several abnormalities, including bone spurs at multiple levels, as
well as a right thyroid cystic lesion. Plaintiff consulted with Dr. Overby and Dr. Dubner, an
endocrinologist. Dr. Dubner recommended a thyroidectomy to remove plaintiff’s thyroid.
Plaintiff met with Dr. Overby again in June 2010 and complained of recurrent symptoms of arm
pain numbness. Over the next few months, plaintiff met with both Dr. Overby and Dr. Dubner to
discuss the thyroid surgery. They advised him that the cervical plate in his neck would have to
be removed in connection with the surgery. Plaintiff was also diagnosed with degenerative disc
disease and was told this could be addressed during his thyroidectomy.
Plaintiff had a thyroidectomy and additional back surgery on January 10, 2011. The
surgery removed all of the previously placed screws and plates, all degenerated disc material,
and formations that were compressing plaintiff’s nerve routes. Plaintiff continued to have
follow-up visits with Dr. Overby. Roughly two months later the doctor reported that plaintiff
was “really doing very well,” but he “has tried to return to slight activity and was having a lot of
musculoskeletal pain” that he said was likely the result of “deconditioning.”
Plaintiff also had appointments with Dr. Maria Staniloiu, his primary care physician,
between April 2010 and May 2011. He had a physical on May 10, 2010, his physical
examination was unremarkable. She diagnosed plaintiff with hyperlipidemia, meaning he had

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too many fats in his blood; keloid scar; and bulging cervical disks. Plaintiff had a follow-up
appointment with Dr. Staniloiu for his neck pain six months later, in November 2010. She
diagnosed him with hypertension, a bulging cervical disc, a history of cervical vertebral fusion,
and neck pain. Plaintiff had another physical with Dr. Staniloiu in May 2011, roughly four
months after his thyroid surgery. Under “HPI”, or history of present illness, the doctor’s notes
say “Ch[eck] neck pains, improved[] after [surgery] still not able to work full time.” Dr.
Staniloiu diagnosed plaintiff with hyperlipedmia, improving hypertension, and a bulging cervical
disk.
B. Consulting Physicians
Dr. Louis Tranese performed a consultative orthopedic examination of plaintiff on July
22, 2011. Plaintiff reported that he had persistent neck pain, a 7 or 8 out of 10. He said his pain
was aggravated by “standing long periods, bending, heavy lifting, and performing bilateral
shoulder overhead movements;” and he suffered from “persistent numbness and tingling of the
bilateral hands with pain on the lateral aspect of the hand that extends to the wrist.” Plaintiff
reported that he was able to cook two or three times a week, clean, do laundry, and shop once a
week.
Dr. Tranese’s physical examination reflected that plaintiff did not appear to be in acute
distress and was able to walk normally. Plaintiff’s hand and finger dexterity were intact.
Plaintiff was diagnosed with a history of cervical disk derangement with cervical spine
diskectomies with fusion, chronic neck pain with residual hand numbness and tingling, and per
plaintiff, a reported history of hypertension.
Dr. Tranese’s “Medical Source Statement” found that plaintiff had moderate restriction
with activities that require repetitive overhead reaching or lifting and carrying heavy objects with

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his arms. He has mild restriction with frequent bending. Plaintiff has mild restriction with
performing repetitive or sustained gross manual activities with his hands, particularly gripping,
grasping, lifting, carrying, pushing, or pulling heavy objects.
Plaintiff’s medical records and a residual functional capacity (“RFC”) assessment were
reviewed by Dr. George Walker, a State agency medical consultant. Dr. Walker affirmed that
the RFC assessment completed by a single-decision maker was accurate.
IV.

ALJ’s Decision
The ALJ applied the familiar five-step process required by the regulations, as described

below. Ultimately the ALJ found plaintiff not disabled and denied his application for benefits.
He found that plaintiff had several severe, but non-listed impairments. His decision turned on
his assessment of plaintiff’s RFC. He concluded, contrary to the view of plaintiff’s treating
physician, Dr. Staniloiu, that he can sit for six hours in an eight hour workday, stand and/or walk
up to six hours in an eight-hour workday, and lift and/or carry up to twenty pounds occasionally
and ten pounds frequently. He added that although plaintiff retains the ability to frequently
handle and finger, the claimant can only occasionally reach overhead, climb, or stoop. In
essence, the ALJ found that plaintiff had significant back problems, but retained some
functionality. He accorded significant weight to the opinion of Dr. Tranese, and some weight to
the opinion of Dr. Walker. The ALJ found that plaintiff’s back problems could be expected to
cause the alleged symptoms, but found plaintiff’s characterization of the pain was not consistent
with the medical record as well as plaintiff’s daily activities.
The ALJ found that plaintiff could not return to his previous job due to his limitations.
But, relying on the testimony of a Vocational Expert (“VE”) the ALJ held that plaintiff could

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perform jobs that exist in the national economy, including cashier, counter attendant, and routing
clerk. The ALJ therefore entered a finding of “not disabled.”
DISCUSSION
Plaintiff raises five specific issues: First, the ALJ committed reversible error by failing to
provide any reasons or discussion as to why he rejected the opinion of plaintiff’s primary care
physician, Dr. Staniloiu. Second, the ALJ’s finding that plaintiff can perform light work is not
based on substantial evidence. Third, the ALJ failed to properly evaluate plaintiff’s subjective
complaints, and his credibility finding is not supported by substantial evidence. Fourth, the
Appeals Council committed a reversible error by failing to remand to the ALJ to review new
MRI evidence. Fifth, the Commissioner failed to sustain her burden of establishing there is other
work in the national economy plaintiff can perform.
I.

Standard of Review
A district court may set aside the ALJ's determination that a plaintiff is not disabled “only

if the factual findings are not supported by ‘substantial evidence’ or if the decision is based on
legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted).
“Substantial evidence” is “more than a scintilla” and “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). An evaluation of the “substantiality of the evidence
must also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). If there is substantial evidence in the record to support the
Commissioner's factual findings, they are conclusive and must be upheld. 42 U.S.C. § 405(g);
see also Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). In reviewing the ALJ’s decision and
the administrative record, a district court may not “substitute its own judgment for that of the

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ALJ, even if it might have reached a different result upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991).
The claimant bears the general burden of proving disability. Burgess, 537 F.3d at 128.
A claimant is disabled within the meaning of the Social Security Act if he has an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be of “such severity that he is not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy.” Id. § 423(d)(2)(A). The Commissioner must consider “the combined effect of all of
the individual's impairments without regard to whether any such impairment, if considered
separately, would be of such severity.” Id. § 423(d)(2)(B).
The Social Security Administration (“SSA”) has promulgated a five step analysis
whereby the ALJ must make a finding of disability if she determines: “(1) that the claimant is not
working, (2) that he has a ‘severe impairment,’ (3) that the impairment is not one [listed in
Appendix 1 of the regulations] that conclusively requires a determination of disability, . . . (4)
that the claimant is not capable of continuing in his prior type of work, . . . [and] (5) there is not
another type of work the claimant can do.” Burgess, 537 F.3d at 120; see also 20 C.F.R. §
404.1520(a)–(g). The claimant bears the burden of proof at steps one through four; at the step
five, the burden shifts from the claimant to the Commissioner, requiring the Commissioner to
demonstrate that there is other work in the national economy that the claimant can perform.
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

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When determining a claimant's RFC at step four, the ALJ is required to take the
claimant’s reports of pain and other limitations into account, but is not required to accept the
claimant’s subjective complaints without question. See 20 C.F.R. § 416.929; Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010). The ALJ may exercise discretion in weighing the credibility of
the claimant’s testimony in light of the other evidence in the record. Genier, 606 F.3d at 49. In
doing so, the Act’s regulations provide a two-step process. 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. 20 C.F.R. § 404.1529(b). If the claimant does suffer
from such an impairment, the ALJ must consider at the second step “the extent to which [the
claimant's] symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence” of the record. 20 C.F.R. § 404.1529(a).
II.

Analysis
A. Dr. Staniloiu’s Opinion
Plaintiff alleges that the ALJ committed reversible error because he failed to accord the

opinion of plaintiff’s treating physician, Dr. Staniloiu, any weight and gave no explanation for
not crediting her testimony. Dr. Staniloiu began treating plaintiff in April 2010 and continued
treating him through May 2011. As part of plaintiff’s physical, in May 2011, Dr. Staniloiu noted
that plaintiff continued to have neck pain and was “still not able to work full time.” Defendant
contends that because Dr. Staniloiu’s opinion about plaintiff’s ability to work is a matter
reserved to the ALJ, her opinion cannot be given any weight or special significance.
The ALJ ignored the “treating physician rule,” which generally requires a measure of
deference to the medical opinion of a claimant’s treating physician. See Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004); 20 C.F.R. § 404.1527(c)(2). However, medical source opinions

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on issues that are reserved to the Commissioner are not considered to be medical opinions
“because they are administrative findings that are dispositive of the case.” 20 C.F.R. §§
404.1527(d)-(d)(1), 416.927(d)-(d)(1). The relevant regulation states that “[w]e are responsible
for making the determination or decision about whether you meet the statutory definition of
disability . . . . A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does
not mean that you we will determine that you are disabled.” Id. The regulations make clear that
the Commissioner need “not give any special significance to the source” of those opinions. 20
C.F.R. § 404.1527(d)(3). Dr. Staniloiu’s opinion regarding plaintiff’s ability to work is on a
matter reserved to the Commission, so the ALJ did not need to accord it special significance.
See Bynum v. Astrue, No. 11 Civ. 5111, 2013 WL 1873286, at *2 (E.D.N.Y. May 3, 2013).
Although Dr. Staniloiu’s opinion is in an area reserved to the ALJ, because she was a
treating physician, the ALJ should have at least discussed her other opinions regarding plaintiff,
and the weight they were accorded. See Perez v. Colvin, No. 12 Civ. 5317, 2013 WL 5350566,
at *4-5 (E.D.N.Y. Sept. 23, 2013). The ALJ’s opinion briefly states that Dr. Staniloiu was
plaintiff’s primary care physician, but she is mentioned only cursorily in the decision.
An ALJ who refuses to accord controlling weight to the medical opinion of a treating
physician must consider various “factors” to determine how much weight to give to the opinion.
20 C.F.R. § 404.1527(c)(2). These factors include the: (i) the frequency of examination and the
length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating
physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether
the opinion is from a specialist; and (v) other factors brought to the Social Security
Administration's attention that tend to support or contradict the opinion. Id. Regulations also
provide that the Commissioner “will always give good reasons in our notice of determination or

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decision for the weight we give [claimant’s] treating source’s opinion.” Halloran, 362 F.3d at 32
(quoting Schaal v. Apfel, 134 F.3d 496, 503-04 (2d Cir. 1998)). Looking at the ALJ’s decision,
it is clear that he did not accord Dr. Staniloiu’s opinion any weight, but it is unclear why he did
not do so, or whether he evaluated her opinion using any of the factors set forth above. See Teta
v. Barnhart, 305 F. Supp. 2d 240, 250 (E.D.N.Y. 2004) (faulting an ALJ for failing to provide
sufficient explanation to support his opinions). The ALJ’s failure to provide any explanation as
to why controlling weight was not given to Dr. Staniloiu’s opinion requires me to remand this
case to the ALJ to apply the correct legal standard.
B. RFC Determination
As noted above, the ALJ found that claimant retained the RFC to perform “less than the
full range of light work.” Plaintiff claims that this RFC determination was improper because the
ALJ failed to consider the opinion of Dr. Staniloiu, and did not fully credit any of the medical
opinions on record. Plaintiff argues that the ALJ substituted his own judgment in place of a
medical expert. Because the ALJ did not clearly explain certain aspects of his RFC in a manner
that makes it clear they are substantially supported by evidence, I remand for the ALJ to provide
additional analysis of Dr. Staniloiu’s opinion, and more detailed analysis regarding his rejection
of Dr. Tranese’s opinion.
The ALJ stated that he accorded “significant weight” to the opinions of Dr. Tranese,
based on his personal examination of plaintiff, and consideration of his subjective complaints.
However, Dr. Tranese said that plaintiff may have a mild restriction in the use of his hands. The
ALJ did not credit this portion of Dr. Tranese’s source statement. Instead, he said it was not
reflected in the medical records. The ALJ is free to resolve issues of credibility and choose
between conflicting, properly submitted, medical opinions, but he cannot substitute his own

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judgment for a competent medical opinion. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
The ALJ’s decision not to credit Dr. Tranese’s opinion regarding plaintiff’s hands and fingers is
not based on evaluating two conflicting medical opinions; rather, it is based solely upon the
ALJ’s independent evaluation of the medical records. Plaintiff consistently complained about
numbness in his hands, both to Dr. Tranese, and his other doctors. Dr. Tranese credited his
complaints and the ALJ did not provide a sufficient reason for rejecting his opinion. The ALJ
did not “proffer specific medical evidence that the plaintiff can meet the exertional demands
necessary” to maintain the recommended level of work. See Gray v. Chater, 903 F. Supp. 293,
300 (N.D.N.Y. 1995).
The ALJ also accorded “some weight” to the opinion of Dr. Walker, a State agency
medical consultant. Dr. Walker affirmed an RFC completed by a single-decision maker, which
stated that plaintiff was capable of “light exertion.”1 Dr. Walker never met plaintiff, but he
reviewed his records. Dr. Walker did not explain his findings, and his conclusions were
comprised of two brief sentences. Regulations provide that “because nonexamining sources
have no examining or treating relationship . . . the weight we will give their opinions will depend
on the degree to which they provide supporting explanations for their opinions.” 20 C.F.R.
416.927(c)(3). Dr. Walker failed to provide supporting explanations for his opinion, and the ALJ
did not sufficiently explain why his opinion was entitled to any weight.
The numbness in plaintiff’s hands and fingers is an important issue in assessing
plaintiff’s RFC. The record lacks substantial evidence to support the RFC that plaintiff can
frequently use his hands and fingers. The case is therefore remanded for the ALJ to provide
additional analysis on the issue using the correct standards. If the ALJ determines that there is

1

 The decisions of single-decision maker are not entitled to weight as a medical opinion. See Box v. Colvin, 3 F.
Supp. 3d 27, 46 (E.D.N.Y. 2014).  

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not adequate information on the record to accept Dr. Tranese’s opinion, he has an affirmative
duty to seek out more information from and develop the record accordingly. Teta, 305 F. Supp.
2d at 252.
C. The ALJ’s Evaluation of Plaintiff’s Credibility
Plaintiff also argues that the ALJ did not properly evaluate his subjective complaints.
The ALJ found that “the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.” The ALJ
pointed to inconsistencies between plaintiff’s statements about his condition and medical reports
about his condition, plaintiff’s broad range of daily activities, and improvement’s in plaintiff’s
condition and pain levels following surgery.
This Court must uphold an ALJ’s assessment of a plaintiff’s subjective complaints if
substantial evidence supports that determination. Fiedler v. Colvin, 54 F. Supp. 3d 205, 217
(E.D.N.Y. 2014). The ALJ is required to consider a broad array of factors and the
“determination of decision must contain specific reasons for the finding on credibility, supported
by evidence in the case record.” SSR 96-7P, 1996 WL 374186, at *2; see also 20 C.F.R.
416.929(c)(3).
The ALJ’s credibility determination is supported by substantial evidence and contains
enough detail to make it clear that he considered a variety of factors, such as plaintiff’s activities
of daily living, his medications, his treatment, and his subjective pain reports. Plaintiff’s last
spinal surgery occurred in January 2011. By March 2011 he reported that he “really has no
pain.” His doctor noted that “he is doing very well,” and any pain he was experiencing was the
result of “deconditioning.” In May 2011, plaintiff reported to Dr. Staniloiu that his neck pains

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had improved after surgery. Although plaintiff testified at his hearing that he was in pain every
day, there is substantial evidence in the record to support the ALJ’s determination that plaintiff’s
statements regarding the pain he was experiencing were not credible, and that his pain levels had
substantially improved. Further, the evidence plaintiff uses to demonstrate he had a cervical
impairment comes from an MRI that was taken before he underwent his last surgery. This
evidence does not corroborate plaintiff’s subjective complaints about his pain levels after
surgery.
Plaintiff once again criticizes the ALJ’s failure to give significant weight to the opinion
of Dr. Staniloiu regarding plaintiff’s ability to work. However, plaintiff’s emphasis on this
statement is misplaced. Dr. Staniloiu’s opinion is on an issue reserved to the Commissioner and
does not speak to the credibility of plaintiff’s subjective complaints.
The ALJ also took into consideration plaintiff’s use of the pain medication oxycodone.
At the hearing he asked plaintiff how this medication affected him, and after plaintiff said it
made him drowsy, the ALJ adjusted his RFC accordingly.
Plaintiff contends that the ALJ did not properly credit his claims about the restrictions on
his daily activities that his pain and injuries cause him, he says that they prevent him from
working an eight hour day. The ALJ must take into consideration the claimant’s subjective
account of his symptoms and limitations, but only “to the extent that they are consistent with
objective medical evidence and other evidence.” Alcantara v. Astrue, 667 F. Supp. 2d 262, 276
(S.D.N.Y. 2009). The ALJ acknowledged plaintiff had certain functional limitations, but also
outlined numerous activities that plaintiff can manage. Plaintiff takes short walks, can drive and
travel independently, prepares meals, shops, does light housework, travels to visit with friends,
and attends car shows on a weekly basis. Dr. Tranese’s assessment provides additional evidence

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that plaintiff is able to move and walk normally, subject to certain restrictions. There is
substantial evidence to support the ALJ’s credibility assessment, and the ALJ properly
considered multiple factors pertaining to plaintiff’s credibility.
D. Appeals Council Consideration of New Evidence
Plaintiff contends that the Appeals Council committed reversible error in failing to
remand this matter to the ALJ to review the new evidence plaintiff submitted after his hearing.
Plaintiff submitted results of an MRI from March 29, 2013, which shows that plaintiff had a
herniated disc as well as a disc bulge; along with an irrelevant document showing plaintiff was
having problems with his prostate. The Appeals Council must consider new and material
evidence “only where it relates to the period on or before the date of the administrative law judge
hearing decision.” 20 C.F.R. § 416.1470(b); see also Perez v. Chater, 77 F.3d 41, 45 (2d Cir.
1996). The ALJ issued his decision in this case on March 13, 2013. The MRI is the only
potentially material evidence submitted by plaintiff. The MRI was taken roughly two weeks
after the ALJ’s decision was issued. The MRI does not provide new or material evidence about
plaintiff’s back during the relevant decision-making time period, and thus the Appeals Council
did not commit any error in failing to remand the case to the ALJ to consider it.
E. Work in the National Economy
Finally, plaintiff contends that the Commissioner has failed to show there is other gainful
work in the national economy which he could perform, because the RFC does not adequately
account for his limitations. Because I have remanded the case to the ALJ to apply the proper
legal standards in assessing plaintiff’s RFC, I will not address this allegation because it is
dependent upon a revised ALJ opinion.

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CONCLUSION
For the foregoing reasons, plaintiff’s motion for judgment on the pleadings is GRANTED
and the Commissioner’s cross-motion for judgment on the pleadings is DENIED. The case is
remanded. The ALJ shall apply the proper legal standards regarding plaintiff’s primary care
physician, Dr. Staniloiu, and shall explain the basis for his RFC determination that plaintiff can
frequently use his hands and fingers, or will develop the record further on this point.
SO ORDERED.

Digitally signed by Brian
M. Cogan
U.S.D.J.

Dated: Brooklyn, New York
November 16, 2015

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