Bates v. Commissioner of Social Security

Filing 17

DECISION AND ORDER: Ordered that Plaintiff's 15 motion for judgment on the pleadings is granted, the Commissioner's 16 cross-motion for judgment on the pleadings is denied. Commissioners determination is vacated and the matter is remanded. Ordered that the clerk is respectfully directed to enter judgment remanding the matter to the Commissioner. Signed by Magistrate Judge David E. Peebles on 12/6/2018. (Copy served via regular and certified)(jdp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MICHAEL JOSEPH B.,
Plaintiff,
v.

Civil Action No.
1:17-CV-1236 (DEP)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
MICHAEL JOSEPH B., Pro se
789 Bull Hill Road
Gilboa, NY 12076
FOR DEFENDANT:
HON. GRANT C. JAQUITH
United States Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261

SIXTINA FERNANDEZ, ESQ.
Special Assistant U.S. Attorney

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Plaintiff Michael Joseph B., who is proceeding pro se and informa

pauperis, has commenced this action pursuant to 42 U.S.C. §§ 405(g),
1383(c), to challenge a determination by the Acting Commissioner of
Social Security ("Commissioner"), finding that he was not disabled at the
relevant times, and therefore ineligible to receive the Social Security
benefits for which he applied. Plaintiff contends that the Commissioner's
determination did not result from the application of proper principles, and
was not supported by substantial evidence. Specifically, he argues that his
medical impairments result in greater limitations to his ability to perform
work-related functions than assigned by the administrative law judge
("ALJ") who heard and decided the matter, and that the ALJ improperly
discounted a significantly restrictive medical assessment rendered by his
treating physician. Based upon a careful review of the record, considered
in the light of plaintiff's argument, I find that the ALJ failed to properly
discuss the basis for rejecting portions of opinions from one of plaintiff's
treating sources. Accordingly, the Commissioner's determination will be
reversed, and the matter remanded to the agency for further
consideration.
I.

BACKGROUND
Plaintiff was born in April of 1963, and is currently fifty-five years old.

2

Administrative Transcript at 40, 207, 214. 1 Plaintiff lives together with his
landlord in a trailer in Gilboa, New York, where he has resided since July
1, 2015. AT 41-42, 209, 215. Plaintiff stands six foot, three inches in
height, and at the time of the hearing, weighed one hundred seventy-five
pounds, down from two hundred ten pounds in April 2015. AT 42, 246.
Plaintiff attended regular school classes through sometime around the
tenth grade, and has since achieved a GED. AT 53. Plaintiff is divorced,
and has one daughter and one stepdaughter, both of whom are adults,
and neither of whom resides with him. AT 70. Plaintiff is right hand
dominant.
Plaintiff was last employed in June 2012. AT 57, 71-72, 247, 256-58.
He worked as a laboratory technician for a drug store chain from
approximately 1999 until 2009, and from 2010 until June 2012 as an
equipment technician for the owner of approximately fourteen wholesale
stores. Id. Plaintiff left his last place of employment by mutual agreement,
based upon his lack of a vehicle, which was needed to travel to the
various stores owned by his employer. AT 61. After leaving that place of

The administrative transcript, which consists of a compilation of medical records
and other evidence that was before the agency at the time of its determination in this
matter, and was filed by the Commissioner on March 27, 2018, Dkt. No. 13, will be
hereinafter cited as "AT ___."
1

3

employment, plaintiff looked for other work, and drew unemployment
benefits for six months. AT 58, 62. He ultimately stopped looking for work,
however, and claims that his medical impairments precluded him from
submitting further employment applications. AT 62.
Plaintiff suffers from several physical and mental impairments,
including tremors in his hands and feet, migraine headaches, sporadic
double vision, and depression and anxiety. Plaintiff's tremors, which are
described as "intentional tremors," nearly cease when his hands are at
rest, but increase with pressure and use. AT 45, 63, 319-20. Plaintiff has
received treatment for these tremors from several sources, including Dr. L.
Garten, Dr. Syed Sher, Dr. John Novak, all of whom practice with the
Bassett Healthcare Network, located in Cooperstown, New York, and Dr.
Jennifer Durphy, who works out of the Albany Medical Center. 2 AT 31012, 313-24, 362-65, 368-81, 382-91. Dr. Durphy has diagnosed plaintiff as
suffering from an essential tremor, which is expected to worsen over time.

In his decision, ALJ Andrew J. Soltes, Jr. sets forth his belief that the use of the
terms "intentional tremors" or "intention tremors" by plaintiff's treating sources was
intended to indicate that plaintiff's tremors increase when the affected extremity is
used, and to distinguish them from "postural" tremors which occur when the extremity
is at rest. AT 21 n. 1. This is consistent with definitions of the terms "intention tremor"
as defined by authoritative medical sources. See, e.g., STEDMAN'S MEDICAL DICTIONARY
935260 (defining the term "intention tremor" to mean "a tremor that occurs during the
performance of precise voluntary movements, caused by disorders of the cerebellum
or its connections.")
2

4

AT 361. Examining physicians have observed tremors in the first and third
digits of plaintiff's right hand and the fourth digit of his left hand. See, e.g.,
AT 316. It has also been observed that the tremor significantly worsens
when plaintiff attempts to write. AT 319; see also 62-63.
Plaintiff has been prescribed primidone and Topamax for his
tremors, although Topamax was recently discontinued after a short time
based upon concern for his liver and the fact that it did not appear to be
helping. AT 86-88. He has also been prescribed naproxen to address the
related swelling in his hands and feet. AT 92. According to Dr. Durphy,
plaintiff's tremors are well-controlled on primidone. AT 353. Plaintiff
experiences some side effects from the medication, however, including
tiredness and low energy. AT 96. Plaintiff's health care providers have
recommended physical therapy and occupational therapy, but plaintiff has
not engaged in either of those therapies. AT 89, 93. An electromyogram
nerve conduction study performed in November 2014 of plaintiff's upper
and lower extremities yielded negative results. AT 340, 352.
Plaintiff also suffers from migraine headaches, which he described
as serious and lasting between four and five hours if they are caught early,
and as long as two to three days if they are not. AT 93. Plaintiff medicates
with Motrin for his migraines. AT 86-87, 93, 347-48.
5

Plaintiff additionally claims to suffer from anxiety and depression. AT
86-87, 247-8. However, he does not appear to have received significant
mental health treatment for those conditions, although he has been
prescribed Zoloft. 3 AT 90-91. As a result of a consultative examination
conducted by Dr. Marvella Bowman on June 26, 2015, plaintiff was
diagnosed as suffering from unspecified depressive and anxiety disorders,
as well as an adjustment disorder. AT 350. The examiner noted, however,
that the conditions did not appear to be significant enough to interfere with
plaintiff's ability to function on a daily basis. Id.
Plaintiff also suffers from double vision, described by him as
sporadic, and for which he last examined an ophthalmologist several years
ago. AT 50. In addition, plaintiff saw Dr. Paul Russo, an optometrist with
Bassett Health Care Clinic, on September 4, 2014 for an eye exam. AT
309. Based upon that exam, he was diagnosed with alternating esotropia
and transient diplopia.4 Id. It was noted in the report of that exam that
plaintiff had an upcoming appointment with a neurology specialist, and that

Plaintiff attributes his depression and anxiety to his feeling of the effects of the
hand and foot tremors. AT 86-87.
3

According to authoritative medical sources, diplopia is described as double
vision, or a "condition in which a single object is perceived as two objects." STEDMAN'S
MEDICAL DICTIONARY 250980. Esotropia is the turning in of one or both eyes. Esotropia,
AM. ASS'N FOR PEDATRIC OPTHOMOLOGY & STRABISNUS,
https://aapos.org/terms/conditions/48 (last visited Dec. 4, 2018).
4

6

there would be a possible magnetic resonance imaging ("MRI") testing of
plaintiff's head and thyroid function. Id. MRI testing of plaintiff's brain,
performed on October 21, 2016, yielded results that were described as
"unremarkable." AT 390-91.
According to plaintiff's medical records, he smokes and has been
diagnosed as suffering from tobacco abuse. AT 315, 32-384. Although
plaintiff has been advised to quit smoking, he refuses to do so. AT 321.
Plaintiff engages in a fairly wide range of daily activities. He is able
to bathe and take care of his personal needs and grooming; has cats;
makes simple meals, including sandwiches, cereal, and soup; can do
laundry, vacuum, sweep, and mop; is able to dress, although fastening
buttons is somewhat difficult for him; is able to tie his shoes; can take out
the trash and mow the lawn using a push, self-propelled mower; can
shovel snow from the driveway; is able to socialize with friends; can take
public transportation; and was at one point, approximately four years ago,
on a roof painting something for his sister. AT 45, 66, 78-84, 341, 349-50.
He also watches television and listens to the radio and reads. Id.
II.

PROCEDURAL HISTORY
A.

Proceedings Before the Agency

Plaintiff applied for Title II disability insurance benefits and Title XVI
7

supplemental security income ("SSI") benefits on March 3, 2015, alleging
a disability onset date of June 1, 2012. AT 207-22. In a disability function
report, plaintiff attributed his alleged inability to work to hand and foot
tremors, double vision (both eyes), and severe migraines. 5 AT 46.
Following an initial denial of those applications, AT 145-46, a hearing was
conducted by ALJ Andrew J. Soltes on December 20, 2016. AT 31-117.
On March 2, 2017, ALJ Soltes issued a decision in which he found plaintiff
was not disabled at the relevant times and therefore ineligible for the
disability insurance and SSI benefits sought. AT 15-26.
In his decision, ALJ Soltes applied the familiar, five-step sequential
test for determining disability. 6 After finding that plaintiff was insured
through December 31, 2017, at step one, ALJ Soltes concluded that
plaintiff had not engaged in substantial gainful activity since June 1, 2012.
Proceeding to step two, ALJ Soltes determined that plaintiff suffers from
several severe impairments that impose more than minimal limitations on
his ability to perform basic work functions, including an "essential tremor",
migraine headaches, alternating esotropia, and diplopia, but concluded at

At the hearing in this matter, plaintiff modified his position, testifying that it was
his tremors alone that preclude him from working. AT 86.

5

6

post.

That test will be more fully described further on in this decision. See pp. 13-15,
8

step three that those impairments do not meet or medically equal any of
the listed, presumptively disabling conditions set forth in the
Commissioner's regulations. AT 17-20.
The ALJ next surveyed the record and concluded that plaintiff retains
residual functional capacity ("RFC") to perform light work, subject to
exceptions, including as follows:
[H]e can occasionally operate hand or foot
controls, or balance; he is precluded from climbing
ladders, ropes, or scaffolds, working from
unprotected heights, or using motor vehicles for
work purposes; he should avoid hazardous
machinery; he can tolerate occasional changes in
the work setting and can perform occasional
fingering with his hands bilaterally.
AT 20.
ALJ Soltes then proceeded at step four to apply that RFC finding,
concluding that plaintiff is not capable of performing his past relevant work
as an electronic technician, based principally upon the exertional
requirements associated with that position. AT 25. At step five, relying
upon the testimony of a vocational expert, ALJ Soltes concluded that given
his RFC, plaintiff is able to perform the functions of an electronic
component processor and an assembler, and that both positions are
available in sufficient numbers in the national economy to support a finding

9

of no disability. 7 AT 25-26. ALJ Soltes therefore concluded that plaintiff
was not disabled at the relevant times, and thus ineligible for the benefits
sought. AT 26. The ALJ's decision became a final determination of the
agency on September 7, 2017, based upon the Social Security
Administration Appeals Council's denial of plaintiff's request for review of
that determination. AT 1-6.
B.

Proceedings in this Court

Plaintiff commenced this action on November 10, 2017, and
requested leave to proceed in the action in forma pauperis. Dkt. Nos. 1, 3.
Plaintiff's motion for permission to proceed without prepayment of fees and
costs was granted on November 14, 2017. Dkt. No. 7. With the filing of the
administrative transcript of proceedings before the agency on March 27,
2018, Dkt. No. 13, and briefs on behalf of plaintiff and the Commissioner
on May 8, 2018 and June 15, 2018, respectively, Dkt. Nos. 15, 16, the
matter is now considered as having been submitted on cross-motions by
the parties for judgment on the pleadings, pursuant to Rule 12(c) of the

In her brief, the Commissioner argues that ALJ Soltes properly relied upon the
medical vocational guidelines set forth in the regulations ("grids"), 20 C.F.R. Pt. 404,
Subpt. P, App. 2, at step five to find that plaintiff was not disabled. See Dkt. No. 16 at
13-14. It is clear from his decision, however, that ALJ Soltes found that the grids should
not apply given the additional limitations found in the RFC, and instead relied upon the
testimony of the vocational expert who testified at the hearing in order to find no
disability. See AT 25-26.
7

10

Federal Rules of Civil Procedure and is ripe for determination. 8
III.

DISCUSSION
A.

Scope of Review

A court's review under 42 U.S.C. § 405(g) of a final decision by the
Commissioner is limited; that review requires a determination of whether
the correct legal standards were applied, and whether the decision is
supported by substantial evidence. Veino v. Barnhart, 312 F.3d 578, 586
(2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Martone v. Apfel, 70 F. Supp.
2d 145, 148 (N.D.N.Y. 1999) (Hurd, J.) (citing Johnson v. Bowen, 817 F.2d
983, 985 (2d Cir. 1987)). Where there is reasonable doubt as to whether
the Commissioner applied the proper legal standards, his decision should
not be affirmed even though the ultimate conclusion reached is arguably
supported by substantial evidence. Martone, 70 F. Supp. 2d at 148 (citing
Johnson, 817 F.2d at 986). If, however, the correct legal standards have
been applied, and the ALJ's findings are supported by substantial
evidence, those findings are conclusive, and the decision should withstand
judicial scrutiny regardless of whether the reviewing court might have

This case is before on consent of the parties, pursuant 28 U.S.C. § 636(c) and
General Order No. 18 of this court. See Dkt. No. 4.

8

11

reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at
586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); Barnett v.
Apfel, 13 F. Supp. 2d 312, 314 (N.D.N.Y. 1998) (Hurd, M.J.); see also 42
U.S.C. § 405(g).
The term "substantial evidence" has been defined as " 'such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.' " Richardson v. Perales, 402 U.S. 389, 401(1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Jasinski v.
Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). To be substantial, there must
be " 'more than a mere scintilla' " of evidence scattered throughout the
administrative record. Richardson, 402 U.S. at 401 (quoting Consol.
Edison Co., 308 U.S. at 229); Martone, 70 F. Supp. 2d at 148 (quoting
Richardson, 402 U.S. at 401). "To determine on appeal whether an ALJ's
findings are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both sides,
because an analysis of the substantiality of the evidence must also include
that which detracts from its weight." Williams, 859 F.2d at 258 (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951; Mongeur v.
Hechler, 722 F.2d 1033, 1038 (2d Cir. 1983)).
When a reviewing court concludes that incorrect legal standards
12

have been applied, and/or that substantial evidence does not support the
agency's determination, the agency's decision should be reversed. 42
U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. In such a case the
court may remand the matter to the Commissioner under sentence four of
42 U.S.C. § 405(g), particularly if deemed necessary to allow the ALJ to
develop a full and fair record or to explain his or her reasoning. Martone,
70 F. Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980)). A remand pursuant to sentence six of section 405(g) is warranted
if new, non-cumulative evidence proffered to the district court should be
considered at the agency level. See Lisa v. Sec'y of Dep't of Health &
Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). Reversal without remand,
while unusual, is appropriate when there is "persuasive proof of disability"
in the record and it would serve no useful purpose to remand the matter
for further proceedings before the agency. See Parker, 626 F.2d at 235;
see also Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.
1992); Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d
Cir. 1983).
B.

Disability Determination: The Five-Step Evaluation Process

The Social Security Act ("Act") defines "disability" to include the
"inability to engage in any substantial gainful activity by reason of any
13

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months[.]" 42 U.S.C. §
423(d)(1)(A). In addition, the Act requires that a claimant’s
physical or mental impairment or impairments
[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, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
Id. § 423(d)(2)(A).
The agency has prescribed a five-step evaluative process to be
employed in determining whether an individual is disabled. See 20 C.F.R.
§§ 404.1520, 416.920. The first step requires a determination of whether
the claimant is engaging in substantial gainful activity; if so, then the
claimant is not disabled, and the inquiry need proceed no further. Id. §§
404.1520(b), 416.920(b). If the claimant is not gainfully employed, then the
second step involves an examination of whether the claimant has a severe
impairment or combination of impairments which significantly restricts his
or his physical or mental ability to perform basic work activities. Id. §§
404.1520(c), 416.920(c). If the claimant is found to suffer from such an
14

impairment, the agency must next determine whether it meets or equals
an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d),
416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant
is "presumptively disabled." Martone, 70 F. Supp. 2d at 149 (citing Ferraris
v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)); 20 C.F.R. §§ 404.1520(d),
416.920(d).
If the claimant is not presumptively disabled, step four requires an
assessment of whether the claimant’s RFC precludes the performance of
his or his past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If it is
determined that it does, then as a final matter, the agency must examine
whether the claimant can do any other work. Id. §§ 404.1520(f),
416.920(f).
The burden of showing that the claimant cannot perform past work
lies with the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996);
Ferraris, 728 F.2d at 584. Once that burden has been met, however, it
becomes incumbent upon the agency to prove that the claimant is capable
of performing other work. Perez, 77 F.3d at 46. In deciding whether that
burden has been met, the ALJ should consider the claimant’s RFC, age,
education, past work experience, and transferability of skills. Ferraris, 728
F.2d at 585; Martone, 70 F. Supp. 2d at 150.
15

C.

Analysis
1.

Treating Source Statement

On June 16, 2016, one of plaintiff's treating sources, Dr. Jennifer
Durphy, completed a medical source statement. AT 356-361. While a
majority of that statement coincides with the RFC finding, he did not
incorporate the doctor's finding of occasional limitations to feeling, pushing
and pulling, and difficulty in performing tasks requiring good fine motor
control. This, plaintiff contends, was error and should result in a reversal
with the matter being remanded to the agency. Dkt. No. 15 at 6.
It is the duty of an ALJ to determine a claimant's RFC based upon all
of the evidence in the record. 20 C.F.R. §§ 404.1527(e)(2), 404.155(a),
404.1546(c), 416.927(e)(2), 416.945(a), 416.946(c). A claimant's RFC
represents a finding of the range of tasks she is capable of performing
notwithstanding the impairments at issue. 20 C.F.R. §§ 404.1545(a),
416.945(a); Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29, 33 (2d Cir.
2013). An RFC determination is informed by consideration of "all of the
relevant medical and other evidence." 20 C.F.R. §§ 404.1545(a)(3),
416.945(a)(3); Tankisi, 521 F. App'x at 33.
To properly ascertain a claimant's RFC, an ALJ must assess
plaintiff's exertional capabilities, such as her ability to sit, stand, walk, lift,
16

carry, push, and pull. 20 C.F.R. §§ 404.1545(b), 416.945(b). Nonexertional
limitations or impairments, including impairments that result in postural
and manipulative limitations, must also be considered. Id. When rendering
an RFC determination, the ALJ must specify those functions that the
claimant is capable of performing; conclusory statements concerning her
capabilities will not suffice. Martone, 70 F. Supp. 2d at 150 (citing Ferraris
v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)); accord, e.g., Bump v.
Comm'r of Soc. Sec., No. 15-CV-1077, 2016 WL 6311872, at *3 (N.D.N.Y.
Oct. 28, 2016) (Suddaby, C.J.). In addition, the ALJ's RFC determination
must be supported by substantial evidence. Ferraris, 728 F.2d at 587;
accord, Bump, 2016 WL 6311872, at *3.
As one of plaintiff's treating sources, the opinions of Dr. Durphy were
entitled to special consideration. Ordinarily, the opinion of a treating
physician regarding the nature and severity of an impairment is entitled to
considerable deference, provided that it is supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence. Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008).9 Such opinions are not controlling, however, if

9

The regulation governing treating physicians provides as follows:
Generally, we give more weight to medical opinions from
17

they are contrary to other substantial evidence in the record, including the
opinions of other medical experts. Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004). Where the record includes contradictory medical evidence,
their resolution is properly entrusted to the Commissioner. Burgess, 537
F.3d at 128.
In his RFC finding, the ALJ limited plaintiff to occasional operation of
hand and foot controls, and occasional fingering with hands bilaterally. He
thus gave controlling weight to the portion of Dr. Durphy's opinion finding
that plaintiff is limited to occasional fingering bilaterally. AT 358. Plaintiff
argues, however, that his RFC did not address the other limitations,
including only occasionally reaching overhead and in other directions,
occasionally handling, occasionally feeling, and occasionally pushing and
pulling, as well as the additional observation that plaintiff could be
expected to have difficulty performing tasks requiring good fine motor

your treating sources . . . . If we find that a treating source's
medical opinion on the issue(s) of the nature and severity of
your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
your case record, we will give it controlling weight. When we
do not give the treating source's medical opinion controlling
weight, we apply [various factors] in determining the weight
to give the medical opinion.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
18

control, such as writing, typing, and using tools. 10 AT 358.
If the ALJ does not give controlling weight to a treating source's
opinion, he must apply several specific factors to determine what degree
of weight should be assigned to the opinion, including (1) the length of the
treatment relationship and the frequency of examination; (2) the nature
and extent of the treatment relationship; (3) the evidence supporting the
treating provider's opinion; (4) the degree of consistency between the
opinion and the record as a whole; (5) whether the opinion is given by a
specialist; and (6) other evidence that has been brought to the attention of
the ALJ. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), 404.1527(c)(3)-(6); 20 C.F.R.
§§ 416.927(c)(2)(i)-(ii), 416.927(c)(3)-(6); Halloran, 362 F.3d at 32. When
a treating physician's opinions are repudiated, the ALJ must provide
reasons for the rejection. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Halloran, 362 F.3d at 32. The failure to apply the appropriate legal
standards for considering a treating physician's opinions constitutes a
proper basis for reversal of an ALJ's determination, as is the ALJ's failure
to provide reasons for rejection of his opinions. Johnson v. Bowen, 817
F.2d 983, 986 (2d Cir. 1987); accord, Zabala v. Astrue, 595 F.3d 402, 409

It should be noted that the consultative examiner, Dr. Kavtilya Puri, found at
least "mild limitations" to plaintiff's fine motor movements. AT 342.
10

19

(2d Cir. 2010).
Conspicuously lacking from ALJ's decision is an explanation as to
why he rejected the additional restrictions of Dr. Durphy's medical source
statement, which are inconsistent with the ALJ's RFC findings. While it is
true, as the Commissioner argues, that Dr. Durphy noted "incongruities" in
plaintiff's reports of tremors, and the precise etiology for his tremors is
unknown, her treatment notes do not question plaintiff's veracity, instead
noting that the tremors have been lifelong and increasing in severity and
frequency. See, e.g., AT 366-67. The Commissioner's arguments in
support of the RFC finding represent post-hoc rationalization and fail to
provide a basis for a meaningful judicial review of rejection of portions of
Dr. Durphy's medical source statement.
The Commissioner argues that any failure to include these additional
limitations in the ALJ's RFC finding is harmless, focusing on the "feeling"
limitation and overlooking limitations concerning reaching, pushing and
pulling. A review of the Dictionary of Occupational Titles ("DOT") entries
for the positions of electronic/component processor and assembler do not
necessarily make it clear that a person limited to only occasional reaching
in all directions, handling, feeling and pushing/pulling could perform in

20

those positions. 11 See DOT Nos. 590.684-014 (electronic-component
processor), 732.684-014 (assembler) (4th Ed. Rev. 1991 WL 67983).
In sum, because I find that the ALJ in this matter failed to comply
with his obligation under the regulations to properly explain his rejection of
these important aspects of the medical source statement of Dr. Durphy, a
treating source, the resulting determination must be reversed and the
matter responded to the agency for further consideration, without a
directed finding of disability. 12
IV.

SUMMARY AND ORDER
Plaintiff's treating physician, Dr. Jennifer Durphy, issued a medical

source statement which contains limitations on plaintiff's ability to reach,
handle, feel, push, and pull, and additionally observes that he will have

Despite the Commissioner's arguments, the disputed limitations, particularly in
reaching and handling, are limiting and would eliminate the two jobs testified to by the
vocational expert. See AT 112-113.

11

Reversal and remand for the calculation of benefits is only warranted "when
there is 'persuasive proof of disability' [in the record] and further development of the
record would not serve any purpose." Steficek v. Barnhart, 462 F. Supp. 2d 415, 418
(W.D.N.Y. 2006) (quoting Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999)). Remand
for further consideration, on the other hand, is justified when the ALJ has applied an
improper legal standard, or further findings and explanations would clarify the ALJ's
decision. See Rosa, 168 F.3d at 82-83; Parker v. Harris, 626 F.2d 225, 235 (2d Cir.
1980); Steficek, 462 F. Supp. 2d at 418 (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996)). In this instance, remand is required for the purpose of making further findings
and offering additional explanations of the evidence, and not because of a finding that
there is persuasive proof of disability in the existing record.
12

21

difficulty in performing tasks requiring good fine motor control. These
limitations are not included within the ALJ's RFC determination, nor does
his opinion contain the discussion contemplated under the regulations and
case law when treating source opinions are rejected. Accordingly, I find
that the determination from which plaintiff now appeals is not supported by
substantial evidence. It is therefore hereby
ORDERED, that plaintiff's motion for judgment on the pleadings (Dkt.
No. 15) is GRANTED, the Commissioner's cross-motion for judgment on
the pleadings (Dkt. No. 16) is DENIED, the Commissioner's determination
in this matter is VACATED, and the matter is REMANDED without a
directed finding of disability, for further proceedings consistent with this
decision and order; and it is further
ORDERED the clerk is respectfully directed to enter judgment,
based upon this determination, remanding the matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

Dated:

December 6, 2018
Syracuse, New York
22