Kelley v. Nancy A. Berryhill

Filing 13

MEMORANDUM-DECISION and ORDER: Ordered that the decision of the commissioner be reversed and this case be remanded. Signed by US Magistrate Judge Andrew T. Baxter on 3/11/2019. (jdp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________________________
CASSANDRA K.1,
Plaintiff,
v.

5:18-CV-86 (ATB)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________________________________
HOWARD D. OLINSKY, ESQ., for Plaintiff
JASON P. PECK, Special Asst. U.S. Attorney, for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM-DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1, and the consent of the parties. (Dkt. Nos. 4, 5).
I.

PROCEDURAL HISTORY
On January 19, 2007, plaintiff filed for Title XVI Supplemental Security Income

(“SSI”) benefits, alleging disability beginning on January 1, 2007 due to a joint
problem, an arm problem, asthma, learning problems and an emotional problem.
(Administrative Transcript (“T.”) at 34, 38). Her claim was denied (id.), and after a

1

In accordance with recent guidance from the Committee on Court Administration and
Case Management of the Judicial Conference of the United States, which was adopted by the
Northern District of New York in June 2018 in order to better protect personal and medical
information of non-governmental parties, this Memorandum-Decision and Order will identify the
plaintiff using only her first name and last initial.

hearing (T. 743-67), Administrative Law Judge (“ALJ”) Thomas Tielens issued an
unfavorable decision dated September 3, 2009 (T. 665-672). The Appeals Council
denied review (T. 673), and plaintiff filed suit in the U.S. District Court for the
Northern District of New York. On March 2, 2011, the court remanded the case for
further administrative consideration. (T. 677-708; Case No. 5:09-CV-1359
(GLS/VEB), Dkt. Nos. 20-22).
The Appeals Council remanded the case to ALJ Tielens (T. 711), and, after a
second hearing (T. 622-61), ALJ Tielens issued a second unfavorable decision dated
June 29, 2011 (T. 715-30). The Appeals Council assumed jurisdiction and remanded
the case on July 16, 2013. (T. 739-41). The case was assigned to ALJ F. Patrick
Flanagan who, after a hearing (T. 579-621), issued a third unfavorable decision dated
March 17, 2014 (T. 1106-27). The Appeals Council denied review (T. 1136-39), and
plaintiff again filed suit in the Northern District of New York. On May 4, 2016, the
court remanded the case, this time with the consent of the Commissioner. (T. 1142,
1144-45; Case No. 5:15-CV-1144 (MAD/DJS), Dkt. Nos. 12-15).
On September 6, 2016, the Appeals Council remanded the case to ALJ John P.
Ramos. (T. 1148-50). Plaintiff attended hearings before ALJ Ramos on April 13, 2017
and September 21, 2017, and a Vocational Expert (“VE”) testified at the latter hearing.
(T. 1074-1102). The ALJ issued a fourth unfavorable decision dated November 14,
2017. (T. 1045-62). Plaintiff bypassed written exceptions, and the Appeals Council
did not assume jurisdiction within sixty days, making the ALJ Ramos’s unfavorable
decision the final decision of the Commissioner. 20 C.F.R. §416.1484(c)-(d).
2

II.

GENERALLY APPLICABLE LAW
A.

Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that she is “unable to engage in any substantial gainful
activity by reason of any 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’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.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a “severe impairment” which
significantly limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the third inquiry is
whether, based solely on medical evidence, the claimant has an impairment
which meets or equals the criteria of an impairment listed in Appendix 1 of
the regulations. If the claimant has such an impairment, the
[Commissioner ] will consider him disabled without considering
vocational factors such as age, education, and work experience . . . .
Assuming the claimant does not have a listed impairment, the fourth
3

inquiry is whether, despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the [Commissioner] then
determines whether there is other work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
B.

Scope of Review

In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“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 on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
4

interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III.

FACTS
Plaintiff was twenty years old on the alleged onset date, and thirty years old on

the date of the most recent ALJ decision. (T. 1060). She had a high school education,
with special education classes. (T. 308, 1360). She resided with her mother, her
boyfriend, and a daughter, who was eleven years old at the time of the September 2017
hearing. (T. 1090). Plaintiff’s employment experience was so limited that the ALJ
determined that she had no “prior relevant work.” (T. 1060, 1093-94).
Plaintiff underwent left shoulder surgery in 2002, 2004, and February 2007
because her shoulder became unstable and would frequently pop out of joint. (T. 313,
443). Her orthopedic surgeon, Dr. Scerpella, noted in September 2007 that, although
the plaintiff did “relatively well initially” following surgery, “her shoulder gradually
stretches out and becomes again unstable and painful.” (T. 903). Following an
5

examination of plaintiff, Dr. Scerpella prepared a functional capacity report on
December 23, 2008, finding, inter alia, that plaintiff could occasionally lift and carry up
to ten pounds and could not sit comfortably for more than thirty minutes at a time. (T.
506). Dr. Scerpella also found that plaintiff had “very limited” fine manipulation and
grasping in her left hand because of numbness and tingling in her hand. (T. 507, 897).
As the Appeals Council noted, “later examination findings suggest that
[plaintiff’s] condition may have deteriorated . . .” and she “was subsequently diagnosed
with Ehlers-Danlos syndrome,2 carpal tunnel syndrome, fibromyalgia, cervicalgia and
spasmodic torticollis.”3 (T. 1148). Plaintiff underwent a right endoscopic carpal tunnel
release surgery on February 7, 2014. (T. 1609-10). An EMG dated April 8, 2015
revealed demyelinating left median mononeuropathy at the left wrist, affecting both
sensory and motor fibers and consistent with moderate left carpal tunnel syndrome. (T.
1510-11). Although carpal tunnel surgery on plaintiff’s left upper extremity was
recommended by June 2015 (T. 1591-92), she had not undergone the operation as of the
September 2017 hearing, due to anxiety over further surgery (T. 1088-89).
A non-examining medical expert, Dr. Gussoff, prepared a medical source

2

“Ehlers-Danlos syndrome is a group of disorders that affect connective tissues
supporting the skin, bones, blood vessels, and many other organs and tissues. Defects in
connective tissues cause the signs and symptoms of these conditions, which range from mildly
loose joints to life-threatening complications.”
https://ghr.nlm.nih.gov/condition/ehlers-danlos-syndrome .
3

“Torticollis (wry neck, or loxia) is one of a broader category of disorders that exhibit
flexion, extension, or twisting of muscles of the neck beyond their normal position.”
https://www.emedicinehealth.com/torticollis/article_em.htm .
6

statement and answered medical interrogatories on May 31, 2017. Dr. Gussoff opined
that plaintiff could frequently lift and carry up to ten pounds, but never more than that.
(T. 1570). Dr. Gussoff found that plaintiff could sit for five hours in an eight-hour day
(one hour at a time), and stand or walk three hours in an eight-hour day (thirty minutes
at a time). (T. 1571). Dr. Gussoff further opined that plaintiff could never reach,
handle, finger, push or pull with her left hand (T. 1572), and noted that plaintiff had
“full mobility of extremities except total restriction of mobility of [the left] shoulder.
AVOID overhead reaching and carrying.” (T. 1579) (emphasis in original).4 Dr.
Gussoff found, based on his review of the medical records, that plaintiff had these
various limitations since December 9, 2004. (T. 1575).
The plaintiff’s brief (at 3-12, Dkt. No. 11) and the ALJ’s decision (T. 1048-51,
1053-60) provide detailed statements of the relevant medical and other evidence of
record. Rather than reciting this evidence at the outset, the court will discuss the
pertinent details below, as necessary to address the issues raised by plaintiff.
IV.

THE MOST RECENT ALJ’S DECISION
ALJ Ramos first found that plaintiff had not engaged in substantial gainful

activity since her application date of January 19, 2007. (T. 34, 1048). Next, the ALJ
found that plaintiff had the following severe impairments at step two of the sequential
evaluation: “left shoulder impairment status post multiple surgeries, asthma,
Ehlers-Danlos syndrome, fibromyalgia, cervicalgia, mild degenerative disc disease in
4

Elsewhere in his reports, Dr. Gussoff stated that plaintiff had “full mobility of all
extremities except chronic pain and moderate restriction and mobility of [the left] shoulder.” (T.
1578) (emphasis supplied).
7

the lumbar spine, morbid obesity, spasmodic torticollis, and adjustment disorder with
mixed features.” (T. 1048-49). He found that plaintiff’s learning disability (average
intelligence), kidney stones, history of mild carpal tunnel syndrome, a sore throat, and a
cat bite were not severe. (T. 1049-50). At the third step, the ALJ determined that
plaintiff’s impairments did not meet or medically equal the criteria of any listed
impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P, including Listing 1.02 for
major dysfunction of a joint. (T. 1050-52).
The ALJ next found that plaintiff retained the residual functional capacity
(“RFC”) to perform a range of limited, unskilled, sedentary work, as follows:
. . . [T]he claimant has the residual functional capacity to perform sedentary work
as defined in 20 C.F.R. § 416.967(a) except the claimant is able to sit for up to
five hours in an eight-hour day at one-hour intervals, stand for up to three
hours in an eight-hour day at 30-minute intervals, and walk for up to three hours
in an eight-hour day at 30-minute intervals. The claimant is able to frequently
reach overhead and in all other directions, frequently push and pull with her right
upper extremity, and frequently handle, finger, and feel with her right dominant
hand and upper extremity. The claimant cannot reach overhead and is able to
occasionally reach in all other directions and handle small objects with her
left arm, and frequently handle, finger, and feel with her left hand. The
claimant is able to occasionally operate foot controls with either foot. She should
not climb ladders or scaffolds and is able to occasionally climb stairs and ramps.
The claimant is able to occasionally balance, but should not stoop, kneel, crouch,
and crawl as those terms are defined in the Dictionary of Occupational Titles.
The claimant is not able to work at unprotected heights and is able to
occasionally work with moving mechanical parts or operate a motor vehicle. The
claimant should not be exposed to humidity and wetness, dust, odors, fumes, or
pulmonary irritants and extreme temperatures or vibrations. The claimant retains
the ability to understand and follow simple instructions and directions, perform
simple tasks with supervision and independently, maintain attention and
concentration for simple tasks, regularly attend to a routine, maintain a schedule,
relate to and interact with others to the extent necessary to carry out simple tasks,
handle reasonable levels of simple work-related stress in that she can make
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decisions directly related to the performance of simple work and handle usual
work place changes and interactions associated with simple work.
(T. 1052-60) (emphasis added). In making this RFC determination, the ALJ stated that
he considered all of the plaintiff’s symptoms, and the extent to which those symptoms
could “reasonably be accepted as consistent with the objective medical evidence and
other evidence. (T. 1053). The ALJ stated that he considered opinion evidence,
affording, inter alia, “little evidentiary weight” to the 2008 opinion of treating
physician, Dr. Scerpella and “partial weight” to the 2017 opinion of Dr. Gussoff, while
rejecting this medical expert’s opinion that plaintiff had no use of her left arm. (T.
1053, 1057-58).
As noted above, the ALJ determined that plaintiff had no past relevant work. (T.
1060). However, he also found that “considering the [plaintiff’]’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the [plaintiff] can perform.” (T. 1060). The ALJ
referenced the supporting testimony of the VE (T. 1061), but did not acknowledge that
the VE also testified that, if plaintiff could not reach, handle, finger, feel, push, or pull
with her left hand and upper extremity, she would, in light of her other postural
limitations, be unable to perform any work (T. 1095-96).

Ultimately, based on his

less-limiting RFC findings, the ALJ determined that plaintiff was not disabled from the
application date of January 19, 2007 through the date of the ALJ’s decision. (T. 1061).

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V.

ISSUES IN CONTENTION
Plaintiff argues that the ALJ failed to assess appropriately the opinions of

plaintiff’s treating orthopedist, Dr. Scerpella, and the medical expert, Dr. Gussoff,
resulting in an RFC finding that was unsupported by substantial evidence and was
based upon a misapplication of pertinent VE testimony. (Pl.’s Br. at 1). In particular,
plaintiff contends that the ALJ should have given greater weight to Dr. Scerpella’s
opinion that plaintiff was very limited in conducting fine manipulation and grasping
with her left hand (id. at 15-17) and the opinion of Dr. Gussoff that plaintiff could
never reach, handle, finger, push, or pull with her left hand (id. at 17-18). Plaintiff also
argues that plaintiff’s acknowledged limitation on sitting, for only five hours in an
eight-hour day, was inconsistent with the performance of sedentary work. (Id. at 18).
Because the VE’s opinion about plaintiff’s ability to perform other work was based on
an erroneous RFC, plaintiff contends that the ALJ’s ultimate determination that
plaintiff was not disabled is not supported by substantial evidence. (Id. at 18-19).
Defendant argues that the ALJ properly evaluated conflicting medical evidence, that he
articulated good reasons for rejecting the opinions of Dr. Scerpella and Dr. Gussoff
regarding plaintiff’s left-hand limitations, and that the ALJ’s RFC findings were
supported by substantial evidence. (Def.’s Br. at 3-4, 7-13, Dkt. No. 12).
For the following reasons, the court concludes that the ALJ improperly
substituted his own lay judgment for competent medical opinion evidence. The ALJ’s
RFC findings with respect to plaintiff’s ability to use her left hand were not supported
by substantial evidence, and the ALJ relied on VE testimony that was based on a flawed
10

RFC, tainting the ultimate determination that plaintiff was not disabled. Accordingly,
the court orders yet another remand for further administrative proceedings, but not
solely for the determination of benefits, because it is not clear on the current record that
plaintiff is entitled to a finding that she was disabled. On remand, the Commissioner
should consider obtaining additional medical/opinion evidence and/or seeking
clarification of the existing opinion evidence; should properly assess all of the medical
opinion and other evidence in assessing plaintiff’s RFC; and should make a
determination, supported by substantial evidence, as to whether plaintiff was disabled
for some or all of the extensive time period between the date of her original application
and the date of the decision on remand.
DISCUSSION
VI.

RFC EVALUATION/TREATING PHYSICIAN
A.

Legal Standards
1.

RFC

RFC is “what [the] individual can still do despite his or her limitations.
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis . . . .” A
“regular and continuing basis” means eight hours a day, for five days a week, or an
equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL
252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical
11

facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
conclusory statements regarding a plaintiff’s capacities. Martone, 70 F. Supp. 2d at
150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v. Bowen,
737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460 (W.D.N.Y.
1987)). The RFC assessment must also include a narrative discussion, describing how
the evidence supports the ALJ’s conclusions, citing specific medical facts, and nonmedical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL 3825629 at *6
(N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *7).
As noted, the ALJ found that plaintiff had the RFC to perform sedentary work,
with additional restrictions. The full range of sedentary work involves lifting no more
than ten pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. 20 C.F.R. §§ 404.1567(a), 416.967(a); SSR 96-9p, 1996 WL
374185, at *3. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met. “Occasionally” means occurring from very little up to
one-third of the time, and would generally total no more than about two hours of an
eight-hour workday. Sitting would generally total about six hours of an eight-hour
workday. SSR 96-9p, 1996 WL 374185, at *3. “Most unskilled sedentary jobs require
12

good use of both hands and the fingers; i.e., bilateral manual dexterity.” SSR 96-9p,
1996 WL 374185, at *8.
2.

Treating Physician

“Although the treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician, . . . the opinion of the treating physician is
not afforded controlling weight where . . . the treating physician issued opinions that
are not consistent with other substantial evidence in the record . . . .” Halloran v.
Barnhart, 362 F.3d 28, 32 (2004); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002);
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The ALJ must properly analyze the
reasons that a report of a treating physician is rejected. Halloran, 362 F.3d at 32-33. A
well-supported opinion from a consultative examining physician, a non-examining state
agency doctor, and/or a medical expert may also provide substantial evidence
supporting an ALJ’s decision. See, e.g., Leach v. Barnhart, No. 02-CV-3561, 2004 WL
99935, at *9 (S.D.N.Y. Jan. 22, 2004) (“State agency physicians are qualified as experts
in the evaluation of medical issues in disability claims. As such, their opinions may
constitute substantial evidence if they are consistent with the record as a whole.”).5 An
ALJ may not arbitrarily substitute his own judgment for competent medical opinion.
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
B.

Application

The ALJ gave “little evidentiary weight” to the December 2008 opinion of Dr.

5

See also Michels v. Astrue, 501 F. App’x 26, 29 (2d Cir. 2012) (finding that opinion of
State agency physician provided substantial evidence to support ALJ’s RFC finding).
13

Scerpella stating, in pertinent part6:
As for her opinion regarding the claimant’s functional limitations, this is given
little weight because it is not supported by the clinical findings. As noted above,
during an exam in August 2008, the claimant had full range of motion of her
neck and shoulders, no strength deficits, and normal sensation (Exhibit 28F, p. 18
[T. 486]). In May 2009, the claimant had limited range of motion of the left
shoulder, but all other clinical findings were normal (Exhibit 24F, p. 1 [T. 390]).
Moreover, the claimant [had] stopped using narcotic pain medications and all
other medications during her pregnancy.
(T. 1057).
The ALJ’s mischaracterizes some of the evidence he cites in support of his RFC
analysis7 and ignores contradictory medical evidence in the record, which provided
considerable support for Dr. Scerpella’s opinion that plaintiff had “very limited” fine
manipulation and grasping with her left hand.8 (T. 507). The August 2008 treatment
note referenced by the ALJ reflected a brief examination before plaintiff was given a
ganglion injection, and the note made no reference to the functionality of plaintiff’s left
hand. (T. 486). Plaintiff gave birth in 2005 (T. 309)–three years before Dr. Scerpella’s
opinion–and the fact that plaintiff stopped using narcotic pain medications to protect

6

Dr. Scerpella also provided an opinion that plaintiff would be totally disabled for at least
one year after her 2007 surgery (T. 290), which the ALJ correctly noted was an opinion on the
ultimate issue of disability, which is reserved to the Commissioner (T. 1057). See SSR 96-5p,
1996 WL 374183, at *2.
7

See, e.g., Richardson v. Barnhart, 443 F. Supp. 2d 411, 421 (W.D.N.Y. 2006) (the
ALJ’s mischaracterization of the record “is indicative that his analysis is not based upon
substantial evidence”).
8

As noted above, an ALJ cannot “cherry pick” only the evidence from medical sources
that support a particular conclusion and ignore the contrary evidence. See, e.g., Royal v. Astrue,
No. 5:11-CV-456 (GTS/ESH), 2012 WL 5449610, at *6 (N.D.N.Y. Oct. 2, 2012) (collecting
cases) (Rep't-Rec.), adopted, 2012 WL 5438945 (N.D.N.Y. Nov. 7, 2012).
14

her fetus does not constitute significant evidence that her symptoms had improved. A
physical therapy evaluation in April 2007 reported that plaintiff had numbness in her
left arm and fingers (T. 342), and an evaluation from a different physical therapist in
October 3, 2007 noted that plaintiff reported “intermittent tingling in the left forearm
and hand when she has been using her arm” (T. 894).
Dr. Scerpella’s December 2008 medical source opinion followed several
examinations of plaintiff, with documentation of objective medical evidence of
symptoms related to the functionality of her left hand. On September 19, 2008, Dr.
Scerpella noted that plaintiff had not fared well following her third surgery on her left
shoulder. Periodic stellite ganglion injections provided relief for only a day, and
plaintiff’s extensive pain medication, including OxyContin and Oxycodone made her
feel “druggy.” Given plaintiff’s chronic pain and recurrent laxity in her left shoulder,
Dr. Scerpella stated that plaintiff was “in a very bad situation” “with “limited options.”
(T. 898). On December 23, 2008, Dr. Scerpella observed that plaintiff was also
“symptomatic in that the numbness and tingling in her left hand affect her ability to
grasp and do fine manipulation.” The doctor concluded that “the radicular upper
extremity symptoms are due to the instability about the shoulder” and discussed with
plaintiff the possibility of a fourth shoulder operation. (T. 897).
The May 2009 medical progress notes referenced by the ALJ found that plaintiff
“shows normal strength of her hand intrinsic muscles as well as her wrist flexion and
extension.” However, the ALJ does not mention that the same medical record also
noted that plaintiff “most recently has been experiencing some numbness and pain on

15

her left hand especially when she is holding a book and she has occasionally
experienced some nocturnal symptoms manifested as numbness on her left hand” which
the doctor stated was possibly related to median nerve irritation and very mild carpal
tunnel syndrome. (T. 390). The ALJ acknowledged, elsewhere in his decision, that
plaintiff displayed worsening carpal tunnel syndrome between 2011 and 2015, during
which time period surgery was performed on her right hand and recommended for her
left hand based on “a history of pain and numbness in her left hand” and an abnormal
EMG study of her left upper extremity in April 2015. (T. 1050, citing, inter alia, T.
939, 1510-11, 1591-92 1602-03). The ALJ nonetheless found plaintiff’s carpal tunnel
syndrome not to be “severe.” (T. 1050).
As noted above, Dr. Gussoff opined that, since December 2004, plaintiff could
never reach, handle, finger, push or pull with her left hand, which was largely
consistent with Dr. Scerpella’s opinion regarding the “very limited” functionality of
plaintiff’s left hand. The ALJ rejected Dr. Gussoff’s opinion “that plaintiff has no use
of her left arm . . . because the clinical findings suggest that the claimant retains some
use of her left arm, but has limitations for reaching.” In supporting this position, the
ALJ emphasized that, during the September 2017 hearing, the plaintiff, “without
prompting . . . picked up her pill bottle and held it up with her left hand.” (T. 1058,
1089-90, 1091-92). The fact that plaintiff could grasp and lift a pill bottle with her left
hand hardly provides significant evidence supporting an RFC that plaintiff could
“frequently handle, finger, and feel with her left hand” during the course of an eighthour workday (T. 1052). See, e.g., Kelsey O. v. Comm’r of Soc. Sec., No. 3:17-CV-525

16

(ATB), 2018 WL 3193197, at *6 (N.D.N.Y. June 28, 2018) (plaintiff’s ability to
perform certain activities outside the house is a very weak basis for the ALJ’s rejection
of the treating source opinion, because all of the activities described were performed at
a rate other than eight hours a day, five days a week). Similarly, the ALJ pointed to a
fleeting reference in a single medical record that plaintiff was carrying laundry in 2014
as evidence of the functionality of her left hand, neglecting to mention that the same
record reflects that she complained to her primary care doctor that her effort to carry
laundry caused her radiating back pain. (T. 1058, 1656). See, e.g., Stoesser v. Comm’r
of Soc. Sec., No. 08-CV-643 (GLS/VEB), 2011 WL 381949, at *6-7 (N.D.N.Y. Jan. 19,
2011) (claimant’s daily activities–including household chores–did not support the
ALJ’s finding that plaintiff could perform sedentary work over an eight-hour workday)
(Rep’t-Rec.), adopted, 2011 WL 381941 (N.D.N.Y. Feb. 3, 2011).
The ALJ pointed to more recent medical evidence in an attempt to support his
rejection of the opinions of Dr. Scerpella, and the medical expert Dr. Gussoff regarding
the functional limitations of plaintiff’s left upper extremity. (T. 1050, 1055, 1058
citing, inter alia, Ex. 47F, pp. 6 (T. 1474); Ex. 54F, pp. 3-4, 8 (T. 1616-17, 1621-22)).
The ALJ noted that plaintiff’s pain management providers found, in February, May,
and/or June 2017, that plaintiff retained normal sensation and full motor strength in her
upper extremities, full grip strength, and/or full range of motion for both wrists. (Id.).
However, these medical records also indicated that plaintiff was suffering from chronic
neck pain, which fluctuated in severity from between five to eight on a scale of ten, and
which was originally diagnosed as neuropathic, but was classified in June 2017 as

17

“predominantly myofascial” based on Dr. Vella’s thorough review of an MRI. (T.
1472, 1614-15, 1617, 1620, 1622). Plaintiff was diagnosed with, inter alia, active
Ehlers-Danlos syndrome, fibromyalgia, carpal tunnel syndrome, left arm weakness, and
numbness. (T. 1472-73, 1615, 1620). The pain management records noted that
plaintiff suffered from symptoms including limited range of motion with increased pain
from motion; limb pain; and bilateral muscle spasms of the trapezius muscle. (T. 1474,
1614, 1616, 1621).
ALJ Ramos did not order a more recent physical examination of plaintiff by a
consulting physician, even though the 2007 report of the internal medical examiner, Dr,
Ganesh, could not address the functionality of plaintiff’s left upper extremity because
she was still in a sling, recovering from recent surgery on her left shoulder.9 (T. 313,
315). Instead, the ALJ relied upon his own lay interpretation of plaintiff’s medical
examinations and other clinical data, and improperly substituted his judgment for that
of plaintiff’s treating orthopedist, and the medical consultant who had reviewed
plaintiff’s medical records.10 See, e.g., Filocomo v. Chater, 944 F. Supp. 165, 170
9

Given the remedial intent of the Social Security statute and the non-adversarial nature of
benefits proceedings, an ALJ has an affirmative duty, even if the claimant is represented by
counsel, to develop the medical record if it is incomplete. Tejada v. Apfel, 167 F.3d 770, 774 (2d
Cir. 1999). In furtherance of the duty to develop the record, an ALJ may re-contact medical
sources if the evidence received from the treating physician or other medical sources is
inadequate to determine disability, and additional information is needed to reach a determination.
20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1).
10

If the ALJ determined that the most recent medical evidence, that was not available to
Dr. Gussoff by the time of the medical expert’s May 31, 2017 reports, was highly probative in
the ALJ’s evaluation of Dr. Gussoff’s opinion, the ALJ could have asked the medical expert to
consider the additional medical records and, if appropriate, amend his reports. In any event, the
June 2017 treatment notes of plaintiff’s pain management doctor reflected diagnoses and medical
observations that were consistent with those from earlier examinations.
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(E.D.N.Y. 1996) (“In the absence of supporting expert medical opinion, the ALJ
should not have engaged in his own evaluations of the medical findings.”); Felder v.
Astrue, 10-CV-5747, 2012 WL 3993594, at *11-13 (E.D.N.Y. Sept. 11, 2012) (“an ALJ
who makes an RFC determination in the absence of a supporting expert medical
opinion has improperly substituted his own opinion for that of a physician, and has
committed legal error”).
Because “[e]valuating [plaintiff’s] ability to use [her] hands is crucial to
determining whether [s]he could have performed sedentary work[,]” the ALJ’s errors in
considering the opinion and other medical evidence regarding the functionality of
plaintiff’s left hand in his RFC analysis cannot be deemed harmless. Mason v.
Barnhart, 96 F. App’x 30, 31-32 (2d Cir. 2004). Because the VE testified that plaintiff
could not perform competitive work if she was unable to reach, handle, finger, feel,
push, or pull with her left hand and upper extremity, the ALJ’s ultimate determination
that plaintiff was not disabled is tainted by his flawed RFC findings, and remand is
required. See, e.g., Ellis v. Colvin, 29 F. Supp. 3d 288, 300-02 (W.D.N.Y. 2014)
(because “Plaintiff’s non-exertional limitations with regard to her use of her hands
completely eroded the occupational base for sedentary jobs that the VE testified that
she could perform[,]” the ALJ’s erroneous “failure to incorporate a restriction on
repetitive hand movements into his RFC assessment” required remand).11
11

The court need not address the plaintiff’s argument that the ALJ’s non-disability
finding is not supported by substantial evidence because she could only sit for five hours during
the workday, in light of the fact that this case must be remanded on other grounds. However, as
defense counsel notes, although the ability to sit for at least six hours in a workday is required to
perform the full range of sedentary work, the ALJ included, in his RFC, the more restrictive
limitation that plaintiff could only sit for a total of five hours. Because the ALJ included the
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VII. NATURE OF REMAND
A.

Legal Standards

Remand to the Commissioner for further development of the evidence is
appropriate when there are gaps in the administrative record or where the ALJ has
applied an improper legal standard. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.
1999). Reversal for calculation of benefits is appropriate only if the record contains
persuasive proof of disability, and a remand for further evidentiary proceedings would
serve no useful purpose. Id.
B.

Application

In this case, the ALJ erred in his evaluation of the opinion and other medical
evidence in making his RFC findings, and his ultimate determination that plaintiff was
not disabled was not supported by substantial evidence. However, it is not clear, on the
current record, whether the Commissioner could determine an RFC supported by
substantial evidence that would allow a VE to identify jobs that plaintiff could perform.
Depending on updated medical opinion evidence that could be considered on remand,
an ALJ might be able to make a supported RFC finding with respect to the functionality
of plaintiff’s left hand that would not preclude her from all competitive work. Even
the “loss, or the loss of the use, of an arm or hand is not disabling per se.” Fox v.
Comm’r of Soc. Sec., No. 6:02-CV-1160, 2009 WL 367628, at *13 (N.D.N.Y. Feb. 13,
2009) (collecting cases); Faust v. Astrue, No. 06 CIV. 4577, 2011 WL 7145740, at *12-

more restrictive limitation on sitting in the hypothetical to the VE during the hearing, and the VE
found that the plaintiff could still perform particular sedentary jobs, remand on the basis of
plaintiff’s limited capacity for prolonged sitting would not be warranted. (See Def.’s Br. at 13).
20

13 (S.D.N.Y. Mar. 15, 2011) (Rep’t Rec.), adopted, 2012 WL 382959 (S.D.N.Y. Feb. 6,
2012) (with the loss of an upper extremity, a VE may be able to determine the size of
the remaining occupational base and cite specific jobs within the individual’s RFC)
(citing SSR 83-12, 1983 WL 31253, at *4). In the absence of persuasive proof of
disability, the court will not remand this case solely for the calculation of benefits,
notwithstanding the fact that the Commissioner has, over the past ten years, made
numerous unsuccessful attempts to adjudicate plaintiff’s claim without fatal error.
On remand, the Commissioner should properly address the totality of the medical
opinion and other evidence regarding plaintiff’s functional limitations, assess and
articulate plaintiff’s RFC with sufficient specificity, and present the evidence upon
which the Commissioner relies to support the RFC determination. As appropriate, the
ALJ should order further consultative examinations of plaintiff, and/or further use of a
medical consultant to clarify or revise opinions based on the updated medical evidence.
Further, given the extensive passage of time between the date of plaintiff’s original
application and any decision on remand, the Commissioner should evaluate whether
there has been a substantial change over time in plaintiff’s limitations or symptoms,
such that a finding of disability for some closed period should be considered.
WHEREFORE, based on the findings above, it is
ORDERED, that the decision of the Commissioner be REVERSED and this
case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a proper
evaluation of the medical and other evidence, an appropriate determination of
plaintiff’s residual functional capacity, and other further proceedings, consistent with
21

this Memorandum-Decision and Order.

Dated:

March 11, 2019

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