Hopkins v. Commissioner of Social Security

Filing 14

DECISION AND ORDER: Ordered that Plaintiff's motion for judgment on the pleadings Dkt. No. 11 is Granted; that Defendant's motion for judgment on the pleadings Dkt. No. 12 is Denied; and that this matter is Remanded to Defendant, pursuant to 42 U.S.C. 405(g), for further proceedings consistent with this Decision and Order.Signed by Judge Glenn T. Suddaby on 07/23/2015. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HOLLY E. HOPKINS,
Plaintiff,
v.

6:13-CV-1082
(GTS)

COMM’R OF SOC. SEC.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Counsel for Plaintiff
One Park Place
300 South State St., Ste. 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278

LAUREN E. MYERS, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Holly E. Hopkins
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ crossmotions for judgment on the pleadings. (Dkt. Nos. 11, 12.) For the reasons set forth
below, Plaintiff’s motion is granted and Defendant’s motion is denied.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on December 25, 1968. (T. 134.) She received a GED. (T.
150.) Generally, Plaintiff’s alleged disability consists of shoulder injury, neck injury, and
depression. (T. 149.) Her alleged disability onset date is February 1, 2008. (T. 146.) She
had previous work experience as a cutter, feeder/packer, housekeeper, and
maintenance worker. (T. 150.)
B.

Procedural History

On December 30, 2010, Plaintiff applied for disability insurance benefits (“SSD”)
under Title II of the Social Security Act. (T. 120.) Plaintiff’s application was initially
denied, after which she timely requested a hearing before an Administrative Law Judge
(“the ALJ”). On March 27, 2012, Plaintiff appeared before the ALJ Marie Greener. (T.
32-54.) On June 18, 2012, the ALJ issued a written decision finding Plaintiff not disabled
under the Social Security Act. (T. 17-31.) On July 16, 2013, the Appeals Council (“AC”)
denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision of
the Commissioner. (T. 1-7.) Thereafter, Plaintiff timely sought judicial review in this
Court.
C.

The ALJ’s Decision

Generally, in her decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 22-31.) First, the ALJ found Plaintiff met the insured status
through March 31, 2013 and had not engaged in substantial gainful activity since
February 1, 2008, her alleged onset date. (T. 22.) Second, the ALJ found that Plaintiff
had the severe impairments of herniated nucleus pulposus, degenerative disc disease
of the cervical spine, status post cervical fusion in the past, and left shoulder injury
2

status post-surgery. (Id.) Third, the ALJ found that Plaintiff did not have an impairment,
or combination of impairments, that meets or medically equals one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 23.) Fourth, the
ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform
“sedentary work,” except, Plaintiff was unable to lift above shoulder level with the left
upper extremity.1 (Id.) Fifth, the ALJ determined that Plaintiff could not perform her past
relevant work; however, there were jobs that existed in significant numbers in the
national economy Plaintiff could perform. (T. 26.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes three separate arguments in support of her motion for judgment
on the pleadings. First, Plaintiff argues the ALJ failed to properly evaluate the opinion of
Plaintiff’s treating physician, Richard Nocella, D.O. (Dkt. No. 11 at 16-19 [Pl.’s Mem. of
Law].) Second, Plaintiff argues the ALJ erred in assessing Plaintiff’s credibility, because
she mischaracterized Plaintiff’s testimony. (Id. at 19-22.) Third, and lastly, Plaintiff
argues the ALJ’s step five determination was unsupported by substantial evidence,
because she failed to obtain vocational expert (“VE”) testimony, despite the presence of
significant non-exertional impairments. (Id. at 22-25.)

B.

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Defendant’s Arguments

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met. 20 C.F.R. § 404.1567(a).
3

In response, Defendant makes essentially two arguments. First, Defendant
argues Plaintiff retained the RFC for sedentary work. (Dkt. No. 12 at 5-11 [Def.’s Mem.
of Law].) Second, and lastly, Defendant argues that Plaintiff retained the ability to
perform work that existed in significant numbers in the national economy. (Id. at 11-13.)
III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and 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, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

4

“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other
words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §
404.1520. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
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 is 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; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the fourth inquiry is whether, despite
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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 could perform. Under the cases previously discussed, the claimant
bears the burden of the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
IV.

ANALYSIS
A.

Whether the ALJ Properly Evaluated the Opinion of Plaintiff’s
Treating Physician, Dr. Nocella.

After carefully considering the matter, the Court answers this question in the
negative, in part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 11 at
16-19 [Pl.’s Mem. of Law]). The Court adds the following analysis.
The opinion of a treating source will be given controlling weight if it “is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2).
The following factors must be considered by the ALJ when deciding how much
weight to afford a medical opinion, even if the treating source is not given controlling
weight: “(i) the frequency of examination and the length, nature, and extent of the
treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's
consistency with the record as a whole; and (iv) whether the opinion is from a
specialist.” 20 C.F.R. § 404.1527(c)(2). An ALJ is required to set forth his reasons for
the weight he assigns to the treating physician's opinion. Id., see SSR 96-2p, 1996 WL
374188 (July 2, 1996); Shaw v. Charter, 221 F.3d 126, 134 (2d Cir. 2000) (quoting Clark
v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998)).

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On March 6, 2012, Dr. Nocella completed a medical source statement. (T. 411413.) Dr. Nocella opined that Plaintiff suffered from a fractured cervical spine and left
shoulder impairment of the acromioclavicular (“AC”) joint. (T. 411.) He stated Plaintiff’s
prognosis was “fair.” (Id.)
Regarding exertional limitations, Dr. Nocella observed that Plaintiff could
frequently lift and carry up to ten pounds, could occasionally lift and carry twenty
pounds, and could never lift and carry fifty pounds. (T. 412.) Dr. Nocella observed that
Plaintiff could sit for more than two hours at a time in an eight hour work day and stand
for more than two hours at a time in an eight hour workday. (T. 411.) He opined that in
an eight hour workday, Plaintiff could stand/walk for about four hours total and sit at
least six hours total. (Id.) Dr. Nocella indicated that Plaintiff would require a job that
permitted shifting positions at will from sitting, standing or walking. (Id.) He opined that
Plaintiff would take more than five unscheduled breaks in an eight hour workday lasting
five to ten minutes each. (Id.)
In terms of non-exertional limitations, Dr. Nocella opined that Plaintiff could rarely
look down, rarely turn her head right or left, and rarely look up; however, she could
frequently hold her head in a static position. (Id.) Dr. Nocella observed that Plaintiff
could frequently twist, and frequently climb stairs; she could occasionally stoop/bend
and occasionally crouch/squat; but she could never climb ladders. (Id.) Regarding use
of her hands, Dr. Nocella opined Plaintiff could rarely grasp, turn, and twist objects.2
(Id.) He opined she could frequently use her fingers for fine manipulation. (Id.) Further,
he stated Plaintiff could frequently reach with her arms; however, she could only reach
2

The ability to handle objects includes the ability to seize, hold, grasp, turn, or “otherwise
work with the whole hand or hands.” SSR 85-15, 1985 WL 56857 (1985). The use of the arms and hands
is needed to grasp and to hold and turn objects. SSR 83-10, 1983 WL 31251 (1983). Fine movements of
small objects requires use of the fingers (pick, pinch). SSR 96-9p, 1996 WL 374185 (July 2, 1996).
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with her left arm if it was not bearing weight. (Id.) Overall, Dr. Nocella opined Plaintiff
would be off task (unable to maintain attention or perform at a consistent pace) for 20%
of the time during an eight hour workday and Plaintiff would be absent from work
approximately four days per month as a result of her impairments. (Id.)
The ALJ acknowledged Dr. Nocella as Plaintiff’s treating physician and provided
“great weight” to the majority of the limitations he imposed on Plaintiff in his medical
source statement. (T. 25.) However, the ALJ provided “no weight” to Dr. Nocella’s
opinion that Plaintiff could rarely grasp, turn, and twist objects. (Id.) The ALJ reasoned
that the record was “absent” evidence to support this conclusion. (Id.) The ALJ also
provided Dr. Nocella’s opinion that Plaintiff would be absent four times a month “no
weight,” reasoning that there was “nothing in the record” to support this conclusion. (Id.)
The ALJ erred in rejecting Dr. Nocella’s assessment regarding Plaintiff’s
significantly reduced ability to grasp, turn, and twist objects solely based on the
perceived lack of supportive evidence. The Second Circuit has held that “the lack of
specific clinical findings in the treating physician's report did not, standing by itself,
justify the ALJ's failure to credit the physician's opinion.” Clark v. Comm'r of Soc. Sec.,
143 F.3d 115, 118 (2d Cir. 1998). Here, the only support the ALJ provided for her
complete rejection of Dr. Nocella’s opinion regarding Plaintiff’s limitations in her ability to
handle objects, was that the record was absent any evidence of Plaintiff’s problems
handling. (T. 25.) Further, as Plaintiff correctly argues, medical evidence supports Dr.
Nocella’s assessment. (Dkt. No. 11 at 17 [Pl.’s Mem. of Law].) For example, Albert
Kochersperger, M.D. performed an exam in March of 2012, during which he noted
reduced grip strength in Plaintiff’s left hand. (T. 415.) He also noted reduced range of

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motion in Plaintiff’s left shoulder and opined she had a 40% loss of the use of her left
arm. (Id.)
Defendant counters that the ALJ properly afforded Dr. Nocella’s opinion
regarding Plaintiff’s limited ability to grasp, turn, and twist, “no weight” because the ALJ
properly reasoned his opinion was not supported by the record. (Dkt. No. 12 at 6 [Def.’s
Mem. of Law].) However, the ALJ specifically stated Dr. Nocella’s assessment of
Plaintiff’s limited ability to grasp, turn, and twist objections was entitled to “no weight,”
because “[t]he record is absent any evidence of problems with grasping, turning and
twisting objects.” (emphasis added) (T. 25.) To reason that the record was inconsistent
with Dr. Nocella’s findings, or not supportive of his findings, is vastly different than to
reason the record was absent supporting evidence. An analysis of whether or not a
treating source’s medical opinion was consistent with the record was proper under the
Regulations. 20 C.F.R. § 404.1527(c)(2). However, to discredit a treating physician’s
opinion reasoning only that the record is absent support is improper because “failure to
include . . . support for the findings in his report does not mean that such support does
not exist.” Clark, 143 F.3d at 118 (2d Cir. 1998).
Therefore, this matter is remanded for the appropriate evaluation of Dr. Nocella’s
opinion regarding Plaintiff’s limitations in her ability to handle objects, because the ALJ
failed to provide a proper analysis for rejecting this opinion and the ALJ ignored medical
evidence which supported Dr. Nocella’s opinion.
Second, Plaintiff argues the ALJ failed to properly evaluate, or even mention, Dr.
Nocella’s opinion regarding Plaintiff’s reduced ability to maneuver her neck and head.
(Dkt. No. 11 at 18 [Pl.’s Mem. of Law].) To be sure, the ALJ is not required to explicitly
set forth and analyze every piece of evidence in the record. Monguer v. Heckler, 722
9

F.2d 1033, 1040 (2d Cir. 1983). Further, this Court agrees with Defendant that an ALJ
“is not required to discuss all the evidence submitted, and her failure to cite specific
evidence does not indicate that it was not considered.” Barringer v. Comm’r of Soc.
Sec., 358 F. Supp. 2d 67, 79 (N.D.N.Y. 2005) (quoting Craig v. Apfel, 212. F.3d 433,
436 (8th Circ. 2000)). Although an ALJ need not discuss every shred of evidence, failure
to discuss evidence that conflicts with an ALJ’s finding prevents meaningful review.
Here, the ALJ specifically outlined the portion of Dr. Nocella’s opinion she
afforded “great weight,” specifically outline the portion of Dr. Nocella’s opinion she
afforded “no weight,” and then provided no discussion of Dr. Nocella’s limitations
regarding Plaintiff’s reduced ability to maneuver her head and neck.3 (T. 25.) Dr. Nocella
stated Plaintiff could rarely look down, rarely turn head right or left, and rarely look up.
(T. 412.)
The Regulations and Social Security Rulings provide the exertional and nonexertional requirements of sedentary work. See, e.g., 20 C.F.R. 404.1567(a), SSR 8310, 1983 WL 31251 (1983), SSR 83-12, 1983 WL 31253 (1983) and SSR 96-9p, 1996
WL 374185 (July 2, 1996). However, the Regulations and Rulings are essentially silent
regarding non-exertional limitations imposed by an inability to maneuver the neck and
head. Therefore, this Court cannot reasonably conclude that any limitations imposed by
Plaintiff’s inability to move her head/neck were inherently included in the ALJ’s RFC
analysis.
The lack of discussion regarding Plaintiff’s limitations in movement of her neck
and head, calls into question whether the decision was actually based on substantial
evidence. Roat v. Barnhart, 717 F. Supp. 2d 241, 262 (N.D.N.Y. 2010) (quoting Schmidt
3

The ALJ also failed to discuss Dr. Nocella’s observation that Plaintiff would require a
sit/stand at will option.
10

v. Astrue, No. 07–CV–65, 2008 WL 1774381, at * 12 (N.D.Ind. Apr. 15, 2008))
(concluding that “although the ALJ need not discuss every piece of evidence ... the ALJ
may not ignore an entire line of evidence that is contrary to the ruling, [o]therwise it is
impossible for the reviewing court to tell whether the ALJ's decision rests upon
substantial evidence”). The ALJ’s failure to discuss specific limitations involving
Plaintiff’s head and neck are particularly erroneous here because the ALJ found at step
two that Plaintiff had the severe impairment involving her cervical spine. (T. 22.)
Therefore, remand is appropriate so that the ALJ can provide a complete discussion
and analysis of Dr. Nocella’s opinion.
B.

Whether the ALJ Properly Assessed Plaintiff’s Credibility

After carefully considering the matter, the Court answers this question in the
negative, in part for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No. 11 at
19-22 [Pl.’s Mem. of Law]). The Court adds the following analysis.
A plaintiff’s allegations of pain and functional limitations are “entitled to great
weight where ... it is supported by objective medical evidence.” Rockwood v. Astrue,
614 F. Supp. 2d 252, 270 (N.D.N.Y. 2009) (quoting Simmons v. U.S. R.R. Ret. Bd., 982
F.2d 49, 56 (2d Cir.1992)). However, the ALJ “is not required to accept [a plaintiff’s]
subjective complaints without question; he may exercise discretion in weighing the
credibility of the [plaintiff’s] testimony in light of the other evidence in the record.”
Montaldo v. Astrue, No. 10-CV-6163, 2012 WL 893186, at *17 (S.D.N.Y. Mar. 15,
2012). “When rejecting subjective complaints, an ALJ must do so explicitly and with
sufficient specificity to enable the Court to decide whether there are legitimate reasons
for the ALJ’s disbelief.” Rockwood, 614 F. Supp. 2d at 270.

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“The ALJ’s credibility assessment must be based on a two step analysis of
pertinent evidence in the record. First, the ALJ must determine whether the claimant
has medically determinable impairments, which could reasonably be expected to
produce the pain or other symptoms alleged.” Id., at 271.
Second, if medically determinable impairments are shown,
then the ALJ must evaluate the intensity, persistence, and
limiting effects of the symptoms to determine the extent to
which they limit the claimant’s capacity to work. Because an
individual’s symptoms can sometimes suggest a greater
level of severity of impairment than can be shown by the
objective medical evidence alone, an ALJ will consider the
following factors in assessing a claimant’s credibility: (1)
claimant’s daily activities; (2) location, duration, frequency,
and intensity of claimant’s symptoms; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness, and
side effects of any medication taken to relieve symptoms; (5)
other treatment received to relieve symptoms; (6) any
measures taken by the claimant to relieve symptoms; and
(7) any other factors concerning claimant’s functional
limitations and restrictions due to symptoms.
Id.
The ALJ concluded Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the above residual functional
capacity assessment.” (T. 23-24.)
To be sure, although a “[plaintiff’s] credibility may be questioned if it is
inconsistent with the medical evidence . . . , it is improper to question the plaintiff's
credibility because it is inconsistent with the RFC determined by the ALJ.” Gehm v.
Astrue, No. 10-CV-1170, 2013 WL 25976, at *5 (N.D.N.Y. Jan. 2, 2013); see also
Patterson v. Astrue, No. 11-CV-1143, 2013 WL 638617, at *14 (N.D.N.Y. Jan. 24, 2013)
12

(“This assessment of plaintiff's credibility is formed only on the basis of how plaintiff's
statements compare to the ALJ's RFC assessment. The ALJ's analysis is therefore
fatally flawed, because, it demonstrates that she improperly arrived at her RFC
determination before making her credibility assessment, and engaged in a credibility
assessment calculated to conform to that RFC determination.”). Courts have concluded
that despite this language, an ALJ’s credibility determination may still be proper, if the
ALJ provided a detailed discussion of Plaintiff’s credibility “explicitly and with sufficient
specificity to enable the Court to decide whether there are legitimate reasons for the
ALJ’s disbelief.” Rockwood, 614 F. Supp. 2d at 270.
Here, the ALJ failed to provide enough specificity in her decision to enable the
Court to decide whether there were legitimate reasons for her disbelief. The ALJ’s
credibility analysis appears to be contained to the following statement:
At the hearing, the [Plaintiff] testified that she spends time on her
computer throughout the day with social networking, games and e-mailing.
She also reported that she gardens; however, she has to sit on the ground
and only use small tools. She testified that she will occasionally crochet.
These activities are not inconsistent with the sedentary residual functional
capacity.
(T. 25-26.)
Plaintiff argues the ALJ mischaracterized Plaintiff’s testimony and failed to
discuss other relevant testimony, specifically Plaintiff’s limitations involving her arms.4
(Dkt. No. 11 at 19-22 [Pl.’s Mem. of Law].) Defendant counters that Plaintiff’s testimony
was consistent with sedentary work and the ALJ did acknowledge Plaintiff’s limitations
in the use of her left arm. (Dkt. No. 12 at 10 [Def.’s Mem. of Law].)

4

Although not alleged by Plaintiff, this Court is also hard pressed to decipher from the
ALJ’s credibility analysis any discussion of Plaintiff’s credibility in relation to the objective medical
evidence in the record pursuant to 20 § C.F.R. 404.1529(c)(2).
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The ALJ’s narrow credibility analysis mischaracterized Plaintiff’s testimony
regarding her activities of daily living. Plaintiff testified at the hearing she goes on the
computer “occasionally,” and if she’s “up to it” she will try to crochet. (T. 45.) Plaintiff
later explained that she hadn’t crocheted in six to seven months (T. 48) and when she
did crochet she needed to take a break every five to ten minutes (T. 49). Plaintiff
testified that vacuuming and sweeping were difficult, but she could use a Swiffer mop
one handed. (T. 49.) Plaintiff testified that she “can’t hardly” garden. (T. 47.) From this
testimony, the ALJ concluded that Plaintiff used the computer throughout the day and
occasionally crochets. (T. 25.) The ALJ stretched the limited testimony she relied on in
order to fit her RFC determination that Plaintiff could perform sedentary work.
Further, as the Plaintiff argues, the ALJ failed to discuss other portions of
Plaintiff’s testimony. (Dkt. No. 11 at 21 [Pl.’s Mem. of Law].) Again, this Court
recognizes an ALJ need not discuss every piece of evidence. See Monguer, 722 F.2d at
1040. However, in this case, the ALJ limits her credibility analysis to Plaintiff’s testimony
regarding her use of hands. (T. 25-26.) On remand the ALJ is directed to conduct a
proper credibility determination in accordance with the Regulations; specifically, to
analyze Plaintiff’s testimony in light of the objective medical evidence, provide a proper
analysis of Plaintiff’s testimony regarding her activities of daily living, and to provide an
analysis of Plaintiff’s testimony regarding her other functional limitations relating to all of
her medically determinable impairments.

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C.

Whether the ALJ Erred in Failing to Obtain Testimony From A
Vocational Expert.

After carefully considering the matter, the Court answers this question in the
affirmative, generally for the reasons stated in Plaintiff’s memorandum of law. (Dkt. No.
11 at 22-25 [Pl.’s Mem. of Law].) The Court adds the following analysis.
At step five of the sequential analysis, the ALJ did not obtain the opinion of a
vocational expert to determine whether there were jobs in the national economy that
Plaintiff could perform. Instead, the ALJ decided that there were jobs in the national
economy that Plaintiff could perform, relying solely on the Medical-Vocational
guidelines. (T. 26.)
At step five of the sequential analysis, the Commissioner can usually meet her
burden to establish that there is work existing in significant numbers in the national
economy which the plaintiff could perform, by reliance on the Medical-Vocational
guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as
“the Grids.” See Baldwin v. Astrue, No. 07-CV-6958, 2009 WL 4931363, at *20
(S.D.N.Y. Dec. 21, 2009). However, when a plaintiff suffers from significant nonexertional limitations that significantly limit her employment opportunities, exclusive
reliance on the Grids is inappropriate. See Baldwin, 2009 WL 4931363, at *27 (citing
Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.1986)). “A plaintiff’s range of potential
employment is significantly limited when he suffers from the ‘additional loss of work
capacity beyond a negligible one or, in other words, one that so narrows a [plaintiff’s]
possible range of work as to deprive him of a meaningful employment opportunity.’” Id.
(quoting Bapp, 802 F.2d at 606). However, “the mere existence of a non-exertional

15

impairment does not automatically preclude reliance on the guidelines.” Zabala v.
Astrue, 595 F.3d 402, 410-411 (2d Cir.2010) (citing Bapp, 802 F.2d at 603).
Because remand in necessary so that the ALJ may, among other things, properly
assess Dr. Nocella’s medical opinion and make a proper credibility analysis, remand is
also necessary so that the ALJ may revisit her decision at step five of the sequential
analysis after having reevaluated her RFC analysis in accordance with this Decision
and Order. Should the ALJ determine that Plaintiff has “significant non-exertional
limitations that significantly limit her employment opportunities,” consultation with a
vocational expert may be appropriate. See Baldwin, 2009 WL 4931363, at *27.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
is DENIED; and it is further
ORDERED that this matter is REMANDED to Defendant, pursuant to 42 U.S.C. §
405(g), for further proceedings consistent with this Decision and Order.
Dated:

July 23, 2015
Syracuse, NY

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