Newman v. Carolyn Colvin
OPINION & ORDER: re: 23 MOTION for Judgment on the Pleadings, filed by Carolyn Colvin, 16 MOTION for Judgment on the Pleadings, filed by Melissa Newman. For the reasons set forth above, the Commissioner's motion (Dkt. No. 23) is DENIED and Newman's motion (Dkt. No. 16) is GRANTED to the extent of remanding the case to the Commissioner for further consideration, and as further set forth in this order. (Signed by Magistrate Judge Andrew J. Peck on 10/6/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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-againstNANCY A. BERRYHILL,
Acting Commissioner of Social Security,
16 Civ. 9325 (AJP)
OPINION & ORDER
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ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Melissa Newman, represented by counsel, brings this action pursuant to
§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the
Commissioner of Social Security denying her application for Disability Insurance Benefits ("DIB").
(Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 16: Newman Notice of Mot.; Dkt. No. 23:
Comm'r Notice of Mot.)
For the reasons set forth below, the Commissioner's motion (Dkt. No. 23) is DENIED
and Newman's motion (Dkt. No. 16) is GRANTED to the extent of remanding the case to the
Commissioner for further consideration.
Newman filed for DIB on November 15, 2013, alleging a disability onset date of
September 25, 2012. (Dkt. No. 12: Administrative Record ("R.") 115-21, 160.) On October 22,
2015, represented by counsel, Newman had a hearing before Administrative Law Judge ("ALJ")
Michael Stacchini. (R. 29-56.) On November 18, 2015, ALJ Stacchini issued a written decision
finding Newman not disabled within the meaning of the Social Security Act. (R. 9-23.) ALJ
Stacchini's decision became the Commissioner's final decision when the Appeals Council denied
review on October 6, 2016. (R. 1-4.)
Non-Medical Evidence and Testimony
Born on January 29, 1979, Newman was thirty-three years old at the alleged
September 25, 2012 onset of her disability. (R. 151, 160.) She completed two years of college in
1999 and specialized training in cosmetology in 2008. (R. 164.) Newman performed clerical work
for an insurance company between 1997 and 2001, and again between 2006 and 2009. (Id.) She
worked as an aesthetician from November 2011 until the September 2012 onset of her disability.
(Id.) In connection with her application for DIB, Newman reported that her ability to work was
limited by complex regional pain syndrome ("CRPS")1/ and numbness in her right index finger, as
well as depression and anxiety. (R. 163.)
In a December 2, 2013 Function Report, Newman stated that she is left handed and
able only to use that hand. (R. 181-84.) Pain and numbness in her right hand affected her sleep and
caused difficulty with bathing, dressing, feeding herself, handling cash and change, climbing stairs,
kneeling, and reaching. (R. 179-80, 182-84, 185.) Newman had trouble walking more than a
"limited distance" due to her "meds & hand swelling." (R. 183, 185.) She was unable to care for
"CRPS is a chronic pain syndrome most often resulting from trauma to a single extremity.
It can also result from diseases, surgery, or injury affecting other parts of the body. Even
a minor injury can trigger . . . CRPS. The most common acute clinical manifestations
include complaints of intense pain and findings indicative of autonomic dysfunction at the
site of the precipitating trauma. . . . It is characteristic of this syndrome that the degree of
pain reported is out of proportion to the severity of the injury sustained by the individual."
SSR 03-2P, 2003 WL 22399117 at *1 (Oct. 20, 2003).
her hair, cook, open cans or water bottles, make beds, clean, perform any "household duties that
require 2 hands," lift objects requiring two hands, or squat. (R. 179-81, 183-84.) Newman could
go shopping, but only with assistance from friends or relatives. (R. 181-82.)2/ She wore a splint and
sling "daily," and she wore a compression glove "at all times" because she could not "handle air
hitting [her] hand." (R. 184-85, 188.)
Newman reported that the "constant pain" in her right hand began in March 2012
when she tore a tendon. (R. 183, 186.) Since her initial injury, her pain had gone "from just the
injured area to the entire [right] side" of her upper body. (R. 187.) Her pain ranged from "dull to
stabbing to aching constantly" and went from the palm of her right hand "all the way up [her] arm
to [her] head." (R. 186.) She reported having chronic pain "always . . . all day" and that
"everything" would bring on the pain. (R. 187.) She treated her pain with Dilaudid, which affected
"thinking & ability to drive & function." (R. 187-88.) Specifically, the side effects of her pain
medication—drowsiness and dizziness—rendered her "unable" to drive, socialize or exercise, and
also caused difficulty with reading and standing. (R. 180, 182-83.) After walking for ten to thirty
minutes, she would need to rest "until [her] pain meds kick[ed] in." (R. 185.) She reported
problems paying attention and finishing tasks while on her medication. (Id.)
With regard to her mental impairments, Newman reported that she "cannot handle
changes & stress d[ue] to depression, anxiety." (R. 186.) Her anxiety "began as a child" but "ha[d]
increased tremendously d[ue] to" her hand injury. (R. 188.) She experienced panic attacks that
manifested in "rapid heartbeat, shortness of breath, need to flee, sweating" and feeling like she was
going to faint. (Id.) To relieve an attack, she would "confine [her]self to a quiet room, take deep
Newman had a "limited" ability to travel by herself. (R. 189.)
breaths & take Klonopin." (R. 189.)
Newman reported that she was able to prepare "cereal & non-stove top meals." (R.
180.) She watched television and spent time with others "in person & on the phone" daily. (R. 18283.) She reported no problems getting along with family, friends, neighbors, bosses or other
authority figures. (R. 183, 185.) Her impairments did not affect her abilities to sit, see, hear or talk
(R. 184); she had no trouble with remembering things (R. 186) or following simple written and
spoken instructions (R. 185).
During her ALJ October 22, 2015 hearing, Newman testified that she had done no
household chores, including cooking, since her initial injury in March 2012. (R. 35-36.) She had
gone shopping only with her mother's assistance since September 2012. (R. 36.) Her symptoms
worsened after her first right hand surgery on December 3, 2012 (R. 36, 39), which resulted in a loss
of feeling in her right index finger (R. 40) and the inability to use her right hand (R. 40-41). She
attempted to go back to work in early 2013 as a part-time gym receptionist, but lasted only three
weeks due to her impairments. (R. 37-38.) She underwent a second surgery on her hand in July
2013. (R. 37.) She filed for benefits in November 2013 because she "realized after [a] third surgery
that [she] couldn't do anything really." (R. 38.) She testified that her symptoms continued
worsening since filing for DIB (id.), and that her CRPS worsened again after a fourth hand surgery
in September 2014 (R. 34; see also R. 40 ("I think every surgery I've had it's gotten worse.")). Since
her fourth surgery, her right index finger "ha[d] basically been paralyzed." (R. 40.)
Beginning in December 2014, Newman wore a splint and sling at all times. (R. 41.)
When not wearing a splint, she wore a compression glove because "[i]t hurt to touch the air." (R.
34, 41.) Pain rendered Newman unable to do laundry or tie her shoes. (R. 36, 45.) Her mother
typically prepared her meals. (R. 36.) Other family members or a neighbor assisted with chores and
meals when her parents were gone for extended periods. (R. 34-36.) She spent her free time visiting
doctors and therapists and, when at home, she would "lay on the couch watching TV when" unable
to read. (R. 38.)
Newman described her pain as "like a 300-pound man sitting on my hand and my
shoulder." (R. 42.) Pain sometimes left her bed-ridden, especially during inclement weather. (R.
34-35.) Newman testified that during the winter, for example, her "pain [was] . . . like if I could say
100 out of a 10 scale, I would." (R. 35.) When experiencing such pain, she would not leave her
bedroom and might stay in bed "for weeks at a time." (Id.) She avoided drinking water "because
to get up to go [to] the bathroom is a struggle." (Id.) She felt "excruciating" pain when water hit
her right arm (R. 49); taking a shower sometimes felt "like . . . glass hitting" her, and she would be
"bed-bound for about 2-3 hours" afterwards (R. 48). Medication brought her pain down to "about
a 7" on a ten-point scale but also made her confused and nauseous. (R. 45.) She also experienced
tremors after occupational or physical therapy sessions and when startled. (R. 44.) For example,
when "in a car and the car slams on the brakes really quick and it scares [her], [she] go[es] into full
tremors." (Id.) Similarly, "[r]ain and snow put [her] into severe tremors." (R. 39.)
At the time of her hearing, Newman was not receiving treatment for her upper back
and neck disc degeneration. (R. 42-43.) Regarding her depression and anxiety, Newman testified
that she has had it her "whole life." (R. 43.) She felt like a burden on her family and was "always
In April 2015, Newman's legs—especially the right leg—began to experience "a
totally different pain than what [she] ha[d] in [her] hand." (R. 43-44.) She "would feel aches and
pains even in [her] toes [and] in all the joints of [her] body." (Id.) She could not bend her leg and
had "fallen because [she] lost all feeling in [her] leg." (R. 44-45.) Although she typically carried
a cane on the advice of her physical therapist, she "tr[ied] not to use it." (Id.) Newman testified that
she recently began experiencing numbness and tingling in her left arm lasting between ten and
twenty minutes. (R. 48.)
At the time of her hearing, Newman was attending occupational and physical therapy
roughly four times a month each. (R. 47.) She visited a cognitive behavioral therapist every week,
a psychiatrist every two months, and a neurologist once a month. (R. 47-48.) In total, she left her
house roughly four times per week to attend medical appointments. (Id.)
Medical Evidence Before the ALJ
In March 2012, Newman received treatment for a tendon injury in her right hand.
(See R. 272, 283.) Between March and July 2012, she received three cortisone injections to treat
carpal tunnel syndrome and trigger finger in her right hand. (See R. 283.) On December 3, 2012,
she underwent carpal tunnel and index trigger finger release surgery. (R. 676; see also R. 272, 283,
325.) On December 20, 2012, Newman presented to Dr. Joseph Rothenberg with complaints of pain
and numbness in her right index finger and hand. (R. 325-26.) Examination revealed mild swelling
and hypersensitivity to touch. (Id.) During a January 2, 2013 follow-up appointment, Dr.
Rothenberg contemplated a possible CRPS diagnosis and noted that Newman's symptoms improved
with medication. (R. 327-28.)
Newman saw Dr. Rothenberg again on January 24, 2013 with complaints "of
significant stiffness in her second digit." (R. 323-24.) She denied significant pain, but reported
functional limitations "due to altered sensorium in her right hand." (R. 323.) On examination, Dr.
Rothenberg noted mild swelling, full range of motion in the right wrist, restricted range of motion
in the right index finger on extension with discomfort, impaired hand strength due to discomfort,
and "hypersensitivity throughout the wrist and hand area, except for decreased sensation on the 2nd
digit." (Id.) Dr. Rothenberg diagnosed Newman with "Right Wrist Complex Regional Pain
Syndrome" and recommended follow up with a psychiatrist. (Id.) On March 26, 2013, Newman
reported to Dr. Rothenberg that her CRPS symptoms were "waxing and waning." (R. 322.)
Examination revealed that her surgical incision was healing well, there was no swelling, she had
"mild restriction at extremes of motion for the 2nd digit," her hand strength was "mildly reduced due
to pain," and she was still experiencing "hypersensitivity to touch." (Id.)
On February 1, 2013, Newman presented to Dr. Joyce Mednick of Valley Hospital
with complaints of right hand pain and swelling. (R. 272-78.) She was diagnosed with a ganglion
cyst and cellulitis of the right hand; she was prescribed antibiotics. (R. 274-75.)
Between January 3 and April 8, 2013, Newman attended twenty-one occupational
therapy sessions at Crystal Run Healthcare. (R. 280-320, 382-402.) During these sessions, Newman
reported pain in her hand, wrist and finger ranging from "0/10" at rest (see, e.g., R. 283) to "8/10"
(see, e.g., R. 386); popping, numbness, sensitivity and tightness along the tendon of her right index
finger (R. 292, 295, 304, 312, 385, 388); trouble sleeping due to pain (see R. 292, 298, 318);
increased pain with cold, damp weather (R. 388); and tremors in her hand (R. 382). Her
occupational therapists initially noted decreased range of motion and lack of strength in her right
hand. (R. 284.) During later sessions, they reported "clicking with 2nd digit flexion" of Newman's
right hand (R. 299); frequent inability to tolerate exercises due to pain (see R. 307, 316, 383, 392,
395, 398); and occasional improvement in range of motion (R. 319, 392).
On July 31, 2013, Newman presented to Dr. Steven Lee with complaints of pain,
decreased range of motion and decreased sensation in her right index finger. (R. 348-50.) Dr. Lee
performed surgery on her right index finger to remove an arterial mass pressing on her radial digital
nerve, to free her tendon from inhibiting scar tissue, and to remove scar tissue entrapping her ulnar
digital nerve. (R. 348-50.) On September 11, 2013, Newman presented to Dr. Lee with a right hand
laceration; she had fallen and cut her hand on a piece of glass on September 6, 2013. (R. 346.) Dr.
Lee cleaned her wound, verified that her tendons were intact, and released fibrous bands around her
radial digital nerve. (R. 346-47.)
Between August 13 and November 15, 2013, Newman attended occupational therapy
sessions at Crystal Run Healthcare another fourteen times. (R. 403-26, 445-48, 502-04, 520-43.)
During these sessions, Newman reported pain ranging from "3/10" (see, e.g., R. 412) to "10/10 . . .
even with pain medication" (see, e.g., R. 409); continued numbness in her right index finger (R.
524); difficulties with activities of daily living ("ADLs") (R. 416, 524); continued sensitivity and
increased pain with cold weather (R. 532, 537); and inability to use her right hand (R. 541).
Newman's occupational therapists noted increased pain after treatment (R. 419, 503); that she was
often able to complete her treatment despite pain (R. 422, 425, 446, 521, 525, 529, 533); that her
incision scar and hand were sometimes sensitive and/or painful to the touch (R. 503, 538, 542); and
occasional improvements in range of motion (R. 525).
Dr. Lee referred Newman to Crystal Run Healthcare for pain management, which she
began with a visit on October 2, 2013. (R. 352, 430-31.) Nurse Practitioner ("NP") Lura Wendy
Marks noted Newman's complaints of "pain of 8/10 located in right hand" (R. 352) aggravated by
"temperature changes, bad weather, driving, OT [occupational therapy], everything" (R. 431), as
well as "numbness, weakness, tightness, spasms, [and] tingling" in her right hand (id.). NP Marks
noted that Newman "experiences relief by pain meds." (R. 352.) Newman's exam was normal apart
from decreased flexion/extension and range of motion in her cervical spine due to spasm and pain,
as well as 4/5 right wrist strength and 3/5 right hand grip strength. (R. 353.) NP Marks
recommended continued occupational therapy with a focus on desensitization and referred Newman
for cognitive behavioral therapy. (Id.) In a treatment note also dated October 2, 2013, Dr. Thomas
Booker opined that Newman "likely ha[d] CRPS of her right hand." (R. 429.)
On October 23, 2013, Dr. Booker wrote a "To Whom It May Concern" letter stating
that Newman was being treated for right hand pain, that she likely had CRPS, and that he was
"waiting for results of a Triple Phase Bone Scan that was ordered on October 2nd, 2013 to confirm
this diagnosis." (R. 428.) On October 28, 2013, Newman presented to Dr. Booker with complaints
of "pain of 5/10 located in hand." (R. 495.) Newman had not undergone a bone scan; Dr. Booker
recommended that she consider a stellate ganglion block. (R. 494-96.)
On November 12, 2013, Dr. Dennis Scharfenberger, Newman's primary care
physician, completed a Medical Report for Determination of Disability form. (R. 427.) Dr.
Scharfenberger checked boxes indicating that Newman could stand and walk for less than two hours
per day, and could sit for less than six hours per day. (Id.) She had limitations to crouching,
squatting, climbing, manipulating with her right hand, and driving a vehicle. (Id.) However, Dr.
Scharfenberger failed to check boxes corresponding to Newman's ability to lift and carry various
weights, and he indicated that she had no mental limitations or limitations to seeing, hearing or
On November 26, 2013, Newman underwent a ganglion block. (R. 360, 498-500,
545-49.) She tolerated the procedure well without complications. (R. 500.)
On December 2, 2013, Dr. Lee completed a Medical Report for Determination of
Disability form. (R. 602.) Dr. Lee checked boxes indicating that Newman could stand and walk
for less than two hours per day, and could sit for less than six hours per day. (Id.) She had
limitations to crouching, squatting, climbing, manipulating with her right hand, and driving a
vehicle. (Id.) Dr. Lee failed to check boxes corresponding to Newman's ability to lift and carry
various weights, and he indicated that she had no mental limitations or limitations to seeing, hearing
or speaking. (Id.)
On December 30, 2013, Newman presented to Dr. Booker with "pain of 7/10" in her
right hand. (R. 604.)
On January 21, 2014, Dr. Richard Goccia performed a consultative examination of
Newman in connection with her DIB application. (R. 554-57.) Newman reported that she helped
with cleaning, laundry and shopping; she showered and dressed herself without assistance; she
watched television, listened to the radio and read; but she needed to be driven to doctor's
appointments. (R. 555.) On examination, Dr. Goccia found Newman to be in no acute distress.
(Id.) Her cervical and lumbar spines showed full flexion, extension and lateral flexion bilaterally;
she demonstrated full rotary movement bilaterally. (R. 556.) She had full range of motion in her
shoulders, elbows, forearms and wrists bilaterally. (Id.) She had "5/5" grip strength on the left, but
"declined to attempt grip strength on the right." (Id.) She had "incomplete flexion at the MCPs of
her second through fifth fingers and incomplete flexion of her MCP and IPJ of the thumb." (R. 557.)
She was unable to zip, button or tie with the right hand. (Id.) Dr. Goccia diagnosed "[c]omplex
regional pain syndrome, right hand," depression and anxiety, concluding that Newman was "severely
limited in activities requiring the use of her right hand." (Id.)
On February 17, 2014, Dr. Scharfenberger completed a questionnaire in connection
with Newman's application for benefits. (R. 558-70.) He wrote that Newman "reports severe pain
in right wrist and hand with limited range of motion. Cannot lift or drive car." (R. 558.) The
expected duration of Newman's condition was "permanent for now." (R. 559.) Dr. Scharfenberger
indicated that Newman could not lift or pull with her right hand, but she had no limitations on
standing, walking, sitting, understanding, remembering, sustained concentration, social interaction,
or adaption. (R. 566-67.) He also indicated decreased range of motion in Newman's right wrist.
(See R. 569.)
Between February 17 and February 27, 2014, Newman attended three occupational
therapy sessions at Crystal Run Healthcare. (R. 610-18, 623-25.) Newman reported "[p]ain
rang[ing] from 4/10-10/10." (R. 610; see also R. 613, 616, 623.) Her therapists noted decreased
range of motion, increased pain and decreased function after therapy sessions. (R. 611, 614.)
Beginning on February 7, 2014, Newman began treating with orthopedic surgeon Dr.
Dimitrios Christoforou. (See R. 606-08.) Between February 7 and August 31, 2014, Newman
visited Dr. Christoforou five times. (R. 606-08, 626-28, 634-38, 644-46, 662-64.) During these
visits, Newman complained of pain that was worse with cold weather, stiffness, numbness,
weakness and limited range of motion in her right index finger. (See R. 606-07, 626, 634, 636, 644,
646, 662, 664.) On examination, Dr. Christoforou consistently found Newman to be in no apparent
distress; she had trace swelling and limited finger motion due to pain and stiffness; she exhibited
"[n]ormal tenodesis of the digit with wrist flexion/extension," but pain with PIP flexion; and her
right index finger was numb to light touch. (R. 607-08, 627-28, 635-36, 645-46, 663-64.) In his
treatment notes for each of these visits, Dr. Christoforou noted a history consistent with CRPS "but
without objective signs on exam." (R. 608, 628, 636, 646, 664.) An April 18, 2014 MRI revealed
postsurgical scarring but was otherwise unremarkable. (R. 629, 646.)
Beginning on April 11, 2014, Newman complained to Dr. Christoforou of pain
radiating up her right arm and into her upper back and neck. (R. 626.) A May 8, 2014 MRI of
Newman's cervical spine revealed "C5-C6 degenerative disc disease and spondylosis result[ing] in
mild central canal and neural foramina stenosis." (R. 638.) During a follow-up appointment, Dr.
Booker opined that the MRI results indicated a "[s]mall disc-osteophyte complex" at C5-C6. (R.
Because Newman's November 2013 stellate block failed to produce lasting pain relief
(see, e.g., R. 634, 636), Newman and Dr. Christoforou discussed further surgical options (R. 646,
664). On September 3, 2014, Dr. Christoforou performed a radial digital nerve neuroma excision,
radial digital nerve wrap, radial digital nerve neurolysis, revision carpal tunnel release, and carpal
tunnel hyperthenar fat flap. (R. 665-69, 770-73.) Newman tolerated the procedure well with no
complications. (R. 772.)
Between September and November 2014, Newman attended four follow-up
appointments with Dr. Christoforou.
(R. 670-76, 709-11, 731-33.)
She initially reported
improvement with pain, as well as improved sensation in the thumb and middle fingers of her right
hand. (R. 670, 676.) By October 13, 2014, however, Newman reported pain throughout her hand
and upper extremity resulting in an inability to move, eat or drink; she had visited the ER multiple
times for dehydration, was sleeping more than fourteen hours a day, and was not attending therapy.
(R. 709.) Dr. Christoforou opined that Newman's post-operative course was within normal limits,
and that her heightened pain was consistent with somatoform symptoms. (R. 711.) Dr. Christoforou
recommended cognitive behavioral therapy and "psych consultation." (Id.) By November 10, 2014,
Newman reported that she was attending therapy and her pain was better controlled. (R. 731.)
However, she had begun experiencing "occasional tremors." (Id.) Dr. Christoforou noted that
Newman was in no apparent distress during these appointments. (R. 671, 677, 710, 732.)
In October and November 2014, Newman twice visited osteopathic physician Dr.
Andrew Faskowitz. (R. 724-27, 738-40.) Dr. Faskowitz noted that Newman was in no apparent
distress (R. 726, 739); she had numbness in her index finger and allodynia throughout her hand (R.
727, 740); and she exhibited normal sensation to light touch (id.). Dr. Faskowitz opined that
Newman had CRPS of the right hand. (Id.) He advised Newman to continue using Oxycodone and
started her on a trial of Tramadol. (R. 727.)
Newman resumed occupational therapy at Crystal Run Healthcare after her surgery
in September 2014; she attended fourteen sessions between September 15 and December 30, 2014.
(R. 679-81, 683-85, 689-97, 712-17, 719-23, 728-30, 741-52.) Newman reported difficulty with
ADLs such as "carrying and lifting heavy objects, opening containers, making her bed, folding
laundry, carrying and lifting dishes, mopping, manipulating buttons and lifting and manipulating a
pot." (R. 680; see also, e.g., R. 692, 719, 722.) She also complained of "constant numbness" in her
right index finger (R. 680); pain ranging from "5/10" to "10/10" (see R. 683, 692, 695, 712, 715,
719, 741, 744, 747) with hypersensitivity to changes in temperature and weather (R. 689, 715, 750);
decreased effectiveness of pain medication (R. 728); and difficulty moving her wrist (R. 683).
Newman's therapists noted that she had difficulty moving her right index finger (R. 684); difficulty
tolerating touch and range of motion exercises (R. 693, 713, 716, 720, 729); limitations in her ability
to manipulate "due to loss of sensation in the index finger" (R. 684); "severe limit[ations] in her
ability to use [her] hand due to pain" (R. 696); and once exhibited changes in skin color during
treatment (R. 729). Towards the end of 2014, Newman exhibited improved tolerance to treatment.
(R. 742, 745, 748.)
At her last visit with Dr. Christoforou on January 12, 2015, Newman presented with
upper extremity pain radiating from her shoulder to her hand and newly onset tremors in her
extremity. (R. 761.) On examination, she was in no apparent distress; her incision had healed and
swelling had subsided; range of motion in her right index finger was "[l]imited . . . but intact"; range
of motion in all other digits was intact and she was "able to fully flex [her] middle, ring, [and] small"
fingers; sensation was "grossly intact over the ulnar/median/superficial radial nerve distributions"
with "5/5 strength to thenar/intrinsic/extrinsic muscles." (R. 762.) Dr. Christoforou recommended
continued cognitive behavioral therapy, "psych" treatment and occupational therapy. (Id.)
Between January 13 and August 7, 2015, Newman saw Dr. Faskowitz four times.
(R. 764-66, 816-19, 849-52, 874-77.) During each visit, Dr. Faskowitz noted that Newman was in
no apparent distress (R. 766, 818, 851, 876); she exhibited numbness in her index finger and
allodynia in her right hand, but her sensation was "[n]ormal to light touch throughout" (R. 766, 818,
851, 877). Dr. Faskowitz reiterated his assessment that Newman had CRPS of the right hand. (R.
766, 819, 852, 877.) He continued her Oxycodone and Tramadol prescriptions and started her on
a trial of Nucynta for severe pain and Baclofen for tremors. (R. 766.) Newman later reported,
however, that Tramadol was not strong enough, her insurance would not cover Nucynta, and that
Baclofen worked when her tremors were bad. (R. 816.) In his notes from each of these
appointments, Dr. Faskowitz opined that Newman was "[v]ery stable" on her current medication
regimen. (R. 766, 819, 852, 877.)
On February 24, 2015, Newman met with neurologist Dr. David Jaeger at Crystal
Run Healthcare. (R. 790.) She reported "bad spasms from her right hand spreading up to her neck.
Pain meds have not been helpful . . . . Hard to get out of bed. Poor sleep. Tremor comes and goes.
Triggered by cold. Pain is '24/7' for over a year but worse since September." (Id.) She reported "no
feeling in index finger / weakness . . . [and] consistent stabbing / burning / aching / numbness." (Id.)
On examination, Dr. Jaeger found "marked allodynia right forearm and hand, except anesthesia
index finger on right." (R. 792.) He was unable to properly evaluate Newman's right hand motor
strength because of pain, but noted limited mobility in her index finger. (Id.) He diagnosed
Newman with myoclonia and noted that while some of her right hand tremors were "distractable
(would stop . . . with repetitive use of left hand)," he nevertheless had "concern for some element
of myoclonus . . . given her dysfunction." (R. 792-93.) Dr. Jaeger prescribed a low dose of
levetiracetam to suppress Newman's tremors. (R. 793.) During a March 17, 2015 follow-up
appointment with Dr. Jaeger, Newman reported discontinuing levetiracetam after experiencing
paralysis as a side effect. (R. 805; see also R. 817.)
On June 23, 2015, Newman presented to the ER and was admitted to the hospital with
complaints of "moderate/severe and constant right arm pain" that "becomes more severe with bad
weather," as well as tremors in her right arm. (R. 915.) She also reported right leg pain that
prevented her from bending her leg at the joint (id.); "poor feeling in her right foot and pain . . .
throughout her [right lower extremity] worse in her right thigh"; her right lower extremity would
"cramp up and she [could not] move it" (R. 936). On examination, her right upper extremity was
tremulous and she was unable to move her right index finger. (R. 917.) She was diagnosed with
dehydration, CRPS, "[i]ntractable pain" and anxiety. (R. 933-34.) An MRI of her lower spine
conducted in connection with her complaints of leg pain revealed "[s]mall disc bulges at L2-L3 and
L4-L5 without spinal stenosis." (R. 948.) Newman was discharged from the hospital on June 26,
2015 with a prescription for diazepam, the generic form of Valium. (R. 941-42.)
During a July 10, 2015 visit with Dr. Faskowitz, Newman asserted that her CRPS had
spread to her right leg. (R. 852.) She also stated that her new prescription of Valium, "5mg up to
4 per day," had "helped tremendously." (Id.) On examination, Dr. Faskowitz found that Newman
exhibited normal leg strength and gait. (R. 851.) During her final visit with Dr. Faskowitz on
August 7, 2015, he opined that "it is medically necessary that [Newman] is seen at an academic Pain
Management Center" with experience in CRPS. (R. 877.)
Between January 7 and October 12, 2015, Newman attended physical or occupational
therapy twenty-six times. (R. 753-59, 794-99, 810-15, 829-37, 843-48, 853-73, 878-79, 896-908.)
During her occupational therapy visits, Newman reported pain ranging from "5/10" to "10/10"
radiating from her right index finger into the palm, arm and shoulder (see, e.g., R. 753, 757, 794,
797, 810, 813, 829, 832, 835, 855, 864, 871, 898, 904) that continued even after taking pain
medication (R. 757, 794); her pain would vary, usually depending on the weather and temperature
(R. 753, 757, 794, 813, 829, 896, 898, 904); tingling and excessive sweating in her right hand (R.
753, 794); tremors and spasms in her right hand, arm and neck (R. 794, 797, 810, 855); increased
difficulty with ADLs as the year progressed (see R. 813, 829, 832, 855, 905); and that "when pain
is very bad, . . . she must remain in the resting hand splint and use the hand very little" (R. 753; see
also R. 797, 813). Her therapists noted waxing and waning progress in range of motion and function
(R. 755, 795, 814, 836) but consistent limitation in use of her right hand "due to significant pain and
weakness" (R. 755; see also R. 795, 833, 872); development of "sores on the left hand for
overcompensating" (R. 836); occasional difficulty tolerating treatment (R. 758, 811, 872); and
increased tremors and tingling after treatment (R. 758, 798).
Beginning in May 2015, Newman reported tingling in her lower extremities during
therapy sessions. (See R. 835.) On July 3, 2015, she reported "pain in the R anterior thigh, tingling
in the R foot, 'stabbing with a needle' in the R foot." (R. 843-44.) Newman's therapist noted that
she was ambulating with a quad cane provided during her June 2015 ER visit. (Id.) Strength in her
right lower extremity was limited by pain and/or concern about pain. (Id.) She was initially unable
to move her right knee, but could do so after relaxation techniques. (Id.) During later appointments,
Newman reported waxing and waning pain, soreness, stiffness, tingling and swelling in her legs (R.
847, 858, 860, 862, 867, 878, 897, 902, 907), especially after prolonged walking (see, e.g., R. 847,
860, 878). Her therapists regularly noted improvement in pain and function in her legs after
treatment. (R. 859, 861, 868, 879, 902.) Although Newman reported some improvement in her
ability to walk (see, e.g., R. 869-70, 879), her therapist noted decreased strength and increased
difficulty with walking due to pain during her final appointment on October 12, 2015 (R. 908).
On November 23, 2015, Dr. Faskowitz wrote a "To Whom It May Concern" letter
opining that Newman required home care "[d]ue to the pain in [her] right arm and episodes o[f] pain
in her right leg." (R. 962.) The letter further asserts that Newman "cannot perform light
housekeeping and cannot drive"; she "normally wears a sling on her right arm to relieve and prevent
an increase in pain"; she wears a compression glove to help with tremors; and she "uses a quad cane
when she walks, due to episodes of pain in her right leg." (Id.)
Between July 16, 2014 and July 17, 2015, Newman met with psychotherapists Drs.
Lisa Batson and Kimberly Robinson seven times. (R. 647-61, 686-88, 734-37, 784-89, 800-04, 82528, 838-42, 891-95.) Her primary care physician had prescribed Remeron for depression and
Klonopin for anxiety. (R. 656.) Newman reported numbness and "'terrible pain'" in her index
finger; worsening CRPS with "no function in her hand, constant pain which is improved some in the
summer but a consistent barrier to functioning." (Id.) She was dependent on her parents and others;
she felt like a burden on others and was "frustrated" and "embarrassed." (Id.) She reported suicidal
ideation during the 2013-2014 winter due to increased pain, "but was . . . able to reach out to family
for support." (Id.) During later appointments, Newman reported increasing difficulty sleeping due
to pain (R. 686, 734, 784, 825); irregular appetite (R. 686, 734, 838); continued frustration with
dependency on others, as well as irritability due to pain (R. 686, 784; see also R. 838, 891); and
suicidal ideation on one occasion (R. 734) with subsequent improvement in independence and
acceptance (R. 784).
On examination, Newman consistently exhibited good hygiene, appropriate dress and
good eye contact; she was cooperative and oriented as to person, place, situation and time; her
memory was "intact" and she maintained attention and concentration; her thought process was
logical and appropriate; her judgment and insight were fair/good; she denied present suicidal
ideation; and her gait and station were within normal limits. (R. 659, 687, 736, 787, 825, 838, 891.)
Vocational Expert Testimony
Vocational expert Sharon Levine testified at Newman's hearing. (R. 50-55.) ALJ
Stacchini asked Levine whether jobs existed that Newman could perform, assuming she could
perform a full range of light work with only occasional balancing, stooping, kneeling, crouching,
right hand use, right hand fingering, and climbing ramps and stairs; no crawling or climbing ladders,
ropes, or scaffolds; avoiding exposure to unprotected heights and hazardous machinery. (R. 51-52.)
Levine testified that with those restrictions, Newman could perform the positions of counter clerk,
usher, gate guard, and furniture rental clerk, which existed in significant numbers in the national
economy. (R. 52.) Levine further opined that Newman's use of a cane for prolonged ambulation
would not affect her ability to perform those jobs provided that the cane was not required for
standing. (Id.) Newman, however, could not work as a gate guard if she could perform only simple,
routine tasks. (R. 52-53.) If limited to sedentary work with the same limitations, there would be
no jobs Newman could perform. (R. 53.) Newman also would be precluded from all work if she
were required to be off task for twenty percent of the work period (R. 53-54) or if she missed two
days of work a month (R. 54). Levine stated that when considering "occasional handling"
limitations, she assumed such limitations applied to both hands "because the DOT doesn't separate
out one hand versus the other." (R. 54-55.)
ALJ Stacchini's Decision
On November 18, 2015, ALJ Stacchini denied Newman's application for benefits.
(R. 9-23.) ALJ Stacchini applied the appropriate five step legal analysis. (R. 12-14.) First, he found
that Newman "has not engaged in substantial gainful activity since September 25, 2012, the alleged
onset date." (R. 14.) Second, ALJ Stacchini found that Newman had "the following severe
impairments: complex regional pain syndrome; right carpal tunnel syndrome; right trigger finger;
right hand mass/tendon; right nerve compression; cervical degenerative disc disease; myoclonus;
anxiety; depression; and insomnia." (Id.) Third, ALJ Stacchini found that Newman did "not have
an impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (Id.) ALJ Stacchini
specifically addressed Newman's CRPS, carpal tunnel syndrome, trigger finger, right hand
mass/tendon, myoclonus, and right never compression, concluding that those impairments did not
meet the Listings' criteria because there was no evidence Newman could not ambulate or perform
fine/gross movements effectively, she was not under current surgical management, had "not lost
major function of the upper extremities," and did not exhibit any "neurological deficits as described
in any part of medical listing 11.01." (R. 15.) ALJ Stacchini also concluded that Newman's mental
impairments were not severe based on her activities of daily living; medical records describing her
hygiene, dress, language, thought process, orientation and memory to be within normal limits; and
her lack of episodes of decompensation. (R. 15-16.)
ALJ Stacchini determined that Newman had the residual function capacity ("RFC")
to "perform less than the full range of light work"; she "is able to sit for up to 6 hours and stand/walk
for up to 6 hours with regularly scheduled breaks" and
is further limited to occasional ramps and stairs, no ladders, ropes or scaffolds,
occasional balancing, stooping, kneeling, and crouching and no crawling. [Newman]
is limited to occasional right handling and right fingering. She must be permitted to
use a cane for uneven terrain and prolonged ambulation defined as being greater than
two blocks. She must avoid exposure to unprotected heights, hazardous machinery,
and extreme cold. She is able to understand, remember, and carry out simple routine
ALJ Stacchini accorded "some" weight to Dr. Goccia's consultative opinion that
Newman was "severely limited" in the use of her right hand, but noted that "'severe' is ill defined
and does not provide a function by function analysis." (R. 20.) He accorded "little" weight to the
portions of Dr. Scharfenberger's November 2013 and February 2014 opinions asserting limitations
on Newman's ability to stand, walk, sit, crouch, climb, push, pull or manipulate with her right upper
extremity; he accorded "significant" weight to the portions of those opinions finding no limitations
on Newman's physical or mental abilities. (R. 20-21.)
ALJ Stacchini also concluded that Newman's "statements concerning the intensity,
persistence and limiting effects" of her symptoms were "not entirely credible." (R. 17.) He
supported this determination with a review of the medical evidence of record, Newman's own
testimony regarding her activities of daily living and his observations of Newman at the hearing.
(R. 17-20; see also pages 27-36 below.)
At the fourth step, ALJ Stacchini determined that Newman was "unable to perform
her past relevant work as a Clerk-Typist and Cosmetologist" (R. 21), but that given her "age,
education, work experience, and residual functional capacity, there are jobs that exist in significant
numbers in the national economy" that Newman could perform (R. 22). ALJ Stacchini noted that
Newman is considered younger individual, that she has a high school education and is able to
communicate in English. (R. 21.) He relied on vocational expert Levine's testimony that a person
with these characteristics and limitations could work as a counter clerk, usher or furniture rental
clerk. (R. 22.) Accordingly, ALJ Stacchini concluded that Newman was not "under a disability, as
defined in the Social Security Act, from September 25, 2012" through November 18, 2015. (Id.)
THE APPLICABLE LAW
Definition Of Disability
A person is considered disabled for Social Security benefits purposes when he 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 12 months." 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart
v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856,
857 (2d Cir. 2012).3/
An individual shall be determined to be under a disability only if [the combined
effects of] his physical or mental impairment or impairments are 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
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010);
Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r
of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15,
16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v.
Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d
Cir. 2005); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Draegert v. Barnhart, 311
F.3d 468, 472 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999);
Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
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. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23, 124 S.
Ct. at 379; Barnhart v. Walton, 535 U.S. at 218, 122 S. Ct. at 1270.4/
In determining whether an individual is disabled for disability benefit purposes, the
Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or
others; and (4) the claimant's educational background, age, and work experience." Mongeur v.
Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).5/
Standard Of Review
A court's review of the Commissioner's final decision is limited to determining
whether there is "substantial evidence" in the record as a whole to support such determination. E.g.,
42 U.S.C. § 405(g); Giunta v. Comm'r of Soc. Sec., 440 F. App'x 53, 53 (2d Cir. 2011).6/ "'Thus,
See also, e.g., Salmini v. Comm'r of Soc. Sec., 371 F. App'x at 111; Betances v. Comm'r of
Soc. Sec., 206 F. App'x at 26; Butts v. Barnhart, 388 F.3d at 383; Draegert v. Barnhart, 311
F.3d at 472; Shaw v. Chater, 221 F.3d at 131-32; Rosa v. Callahan, 168 F.3d at 77; Balsamo
v. Chater, 142 F.3d at 79.
See, e.g., Brunson v. Callahan, No. 98-6229, 199 F.3d 1321 (table), 1999 WL 1012761 at
*1 (2d Cir. Oct. 14, 1999); Brown v. Apfel, 174 F.3d at 62.
See also, e.g., Prince v. Astrue, 514 F. App'x 18, 19 (2d Cir. 2013); Salmini v. Comm'r of
Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d
Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart, 362 F.3d
28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.
2000); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam); Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983).
the role of the district court is quite limited and substantial deference is to be afforded the
Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y.
July 26, 2002) (Peck, M.J.).7/
The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla
[and] 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); accord, e.g.,
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Tejada v.
Apfel, 167 F.3d at 773-74.8/ "[F]actual issues need not have been resolved by the [Commissioner]
in accordance with what we conceive to be the preponderance of the evidence." Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The
Court must be careful not to "'substitute its own judgment for that of the [Commissioner], even if
it might justifiably have reached a different result upon a de novo review.'" Jones v. Sullivan, 949
F.2d 57, 59 (2d Cir. 1991).9/
The Court, however, will not defer to the Commissioner's determination if it is "'the
product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y.
Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir.
See also, e.g., Florencio v. Apfel, 98 Civ. 7248, 1999 WL 1129067 at *5 (S.D.N.Y. Dec. 9,
1999) (Chin, D.J.) ("The Commissioner's decision is to be afforded considerable deference;
the reviewing court should 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."
(quotations & alterations omitted)).
See also, e.g., Halloran v. Barnhart, 362 F.3d at 31; Jasinski v. Barnhart, 341 F.3d at 184;
Veino v. Barnhart, 312 F.3d at 586; Shaw v. Chater, 221 F.3d at 131; Brown v. Apfel, 174
F.3d at 61; Perez v. Chater, 77 F.3d at 46.
See also, e.g., Campbell v. Astrue, 465 F. App'x 4, 6 (2d Cir. 2012); Veino v. Barnhart, 312
F.3d at 586.
2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101
(2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).
The Commissioner's regulations set forth a five-step sequence to be used in
evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540
U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct.
2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated
regulations establishing a five-step sequential evaluation process to determine
disability. If at any step a finding of disability or nondisability can be made, the SSA
will not review the claim further.  At the first step, the agency will find
nondisability unless the claimant shows that he is not working at a "substantial
gainful activity."  At step two, the SSA will find nondisability unless the claimant
shows that he has a "severe impairment," defined as "any impairment or combination
of impairments which significantly limits [the claimant's] physical or mental ability
to do basic work activities."  At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies.  If the claimant's impairment is not on the list, the inquiry proceeds to
step four, at which the SSA assesses whether the claimant can do his previous work;
unless he shows that he cannot, he is determined not to be disabled.  If the
claimant survives the fourth stage, the fifth, and final, step requires the SSA to
consider so-called "vocational factors" (the claimant's age, education, and past work
experience), and to determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 540 U.S. at 24-25, 124 S. Ct. at 379-80 (fns. & citations omitted).10/
The claimant bears the burden of proof as to the first four steps; if the claimant meets
the burden of proving that he cannot return to his past work, thereby establishing a prima facie case,
the Commissioner then has the burden of proving the last step, that there is other work the claimant
Accord, e.g., Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Rosa v. Callahan, 168
F.3d at 77; Tejada v. Apfel, 167 F.3d at 774; see also, e.g., Jasinski v. Barnhart, 341 F.3d
at 183-84; Shaw v. Chater, 221 F.3d at 132; Brown v. Apfel, 174 F.3d at 62; Balsamo v.
Chater, 142 F.3d 75, 79-80 (2d Cir. 1998); Perez v. Chater, 77 F.3d at 46; Dixon v. Shalala,
54 F.3d 1019, 1022 (2d Cir. 1995); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
can perform considering not only his medical capacity but also his age, education and training. See,
e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.11/
NEWMAN'S CLAIM IS REMANDED
ALJ Stacchini's Credibility Determination is Unsupported by Substantial
Legal Standards Governing Credibility Determinations
Because subjective symptoms only lessen a claimant's RFC where the symptoms
"'can reasonably be accepted as consistent with the objective medical evidence and other evidence,'
the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent
with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL
3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted).12/ In addition, "courts must
See also, e.g., Selian v. Astrue, 708 F.3d at 418; Betances v. Comm'r of Soc. Sec., 206 F.
App'x 25, 26 (2d Cir. 2006); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003);
Rosa v. Callahan, 168 F.3d at 80; Perez v. Chater, 77 F.3d at 46; Berry v. Schweiker, 675
F.2d at 467.
See, e.g., Campbell v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALJ's credibility
determination, while an ALJ 'is required to take the claimant's reports of pain and other
limitations into account,' he or she is 'not require[d] to accept the claimant's subjective
complaints without question.' Rather, the ALJ 'may exercise discretion in weighing the
credibility of the claimant's testimony in light of the other evidence in the record.'" (citations
omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010); Brown v. Comm'r of Soc. Sec.,
310 F. App'x 450, 451 (2d Cir. 2009) ("'Where there is conflicting evidence about a
claimant's pain, the ALJ must make credibility findings.'"); Rivers v. Astrue, 280 F. App'x
20, 22 (2d Cir. 2008) (same); Thompson v. Barnhart, 75 F. App'x 842, 845 (2d Cir. 2003)
(ALJ properly found that plaintiff's "description of her symptoms was at odds with her
treatment history, her medication regime, and her daily routine"); Snell v. Apfel, 177 F.3d
128, 135 (2d Cir. 1999); Norman v. Astrue, 912 F. Supp. 2d 33, 85 (S.D.N.Y. 2012) ("It is
'within the discretion of the [Commissioner] to evaluate the credibility of plaintiff's
complaints and render an independent judgment in light of the medical findings and other
evidence regarding the true extent of such symptomatology.'"); Astolos v. Astrue, No. 06CV-678, 2009 WL 3333234 at *12 (W.D.N.Y. Oct. 14, 2009) (ALJ properly determined that
plaintiff's subjective pain complaints were not supported by the medical record); Speruggia
show special deference to an ALJ's credibility determinations because the ALJ had the opportunity
to observe plaintiff's demeanor while [the plaintiff was] testifying." Marquez v. Colvin, 12 Civ.
6819, 2013 WL 5568718 at *7 (S.D.N.Y. Oct. 9, 2013).13/ Thus, "[i]f the [Commissioner's] findings
are supported by substantial evidence, the court must uphold the ALJ's decision to discount a
claimant's subjective complaints." Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588,
591 (2d Cir. 1984) (citations omitted).
When an ALJ determines that a claimant's own statements regarding her symptoms
are not supported by the record, that "determination or decision must contain specific reasons for
the finding on credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186
v. Astrue, No. 05-CV-3532, 2008 WL 818004 at *11 (E.D.N.Y. Mar. 26, 2008) ("The ALJ
'does not have to accept plaintiff's subjective testimony about her symptoms without
question' and should determine a plaintiff's credibility 'in light of all the evidence.'"); Soto
v. Barnhart, 01 Civ. 7905, 2002 WL 31729500 at *6 (S.D.N.Y. Dec. 4, 2002) ("The ALJ has
the capacity and the discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment, in light of medical findings and other evidence, regarding the true
extent of pain alleged by the claimant."); Brandon v. Bowen, 666 F. Supp. 604, 608
(S.D.N.Y. 1987) (same).
Accord, e.g., Campbell v. Astrue, 465 F. App'x at 7 ("[W]e have long held that '[i]t is the
function of the [Commissioner], not ourselves, . . . to appraise the credibility of witnesses,
including the claimant."'); Nunez v. Astrue, 11 Civ. 8711, 2013 WL 3753421 at *7
(S.D.N.Y. July 17, 2013); Guzman v. Astrue, 09 Civ. 3928, 2011 WL 666194 at *7
(S.D.N.Y. Feb. 4, 2011); Ruiz v. Barnhart, 03 Civ. 10128, 2006 WL 1273832 at *7
(S.D.N.Y. May 10, 2006); Gernavage v. Shalala, 882 F. Supp. 1413, 1419 & n.6 (S.D.N.Y.
1995); Mejias v. Soc. Sec. Admin., 445 F. Supp. 741, 744 (S.D.N.Y. 1978) (Weinfeld, D.J.);
Wrennick v. Sec'y of Health, Educ. & Welfare, 441 F. Supp. 482, 485 (S.D.N.Y. 1977)
at *2 (July 2, 1996).14/ The regulations set out a two-step process for assessing a claimant's
statements about pain and other limitations:
At the first step, the ALJ must decide whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to produce the symptoms
alleged. . . . If the claimant does suffer from such an impairment, at the second step,
the ALJ must consider the extent to which the claimant's symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence of
record. The ALJ must consider statements the claimant or others make about his
impairment(s), his restrictions, his daily activities, his efforts to work, or any other
relevant statements he makes to medical sources during the course of examination
or treatment, or to the agency during interviews, on applications, in letters, and in
testimony in its administrative proceedings.
Genier v. Astrue, 606 F.3d at 49 (quotations, citation & brackets omitted) (citing 20 C.F.R.
§§ 404.1529(a), 404.1529(b), and the now-superseded SSR 96-7p).
ALJ Stacchini determined that Newman's "medically determinable impairments could
In March 2016, the SSA released SSR 16-3p, which provides updated guidance on
evaluating a claimant's assertions about the work-preclusive nature of her symptoms. See
generally SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); see also, e.g., Duran v. Colvin,
14 Civ. 8677, 2016 WL 5369481 at *13 n.27 (S.D.N.Y. Sept. 26, 2016) ("SSR 16-3p
supersedes SSR 96-7p, 1996 WL 374186 (July 2, 1996), and clarifies the policies set forth
in the previous SSR."). SSR 16-3p, however, was not made retroactive and the Court
therefore applies SSR 96-7p as the ruling in effect at the time of the ALJ's decision in this
case. See, e.g., Crampton v. Comm'r of Soc. Sec., No. 16-CV-0356, 2017 WL 2829515 at
*6 n.3 (N.D.N.Y. June 29, 2017); Smith v. Colvin, No. 14-CV-1752, 2016 WL 1170910 at
*7 n.3 (D. Conn. Mar. 23, 2016). In any event, the substance of the two-step process for
evaluating claimants' symptoms discussed herein was not modified by SSR 16-3p. Accord
SSR 16-3p, 2016 WL 1119029 at *3-4; see also, e.g., Burgess v. Colvin, 15 Civ. 9585, 2016
WL 7339925 at *11 (S.D.N.Y. Dec. 19, 2016) (citing SSR 16-3p for an explanation of the
two-step process for assessing claimants' statements about their symptoms). Rather, SSR
16-3p's updated guidance is a matter of emphasis: whereas SSR 96-7p "placed a stronger
emphasis on the role of the adjudicator to make a 'finding about the credibility of the
individual's statements about the symptom(s) and its functional effects' . . . S.S.R. 16-3p
espouses a more holistic analysis of the claimant's symptoms, and 'eliminate[s] the use of
the term "credibility"' from sub-regulation policy." Acosta v. Colvin, 15 Civ. 4051, 2016
WL 6952338 at *18 (S.D.N.Y. Nov. 28, 2016).
reasonably be expected to cause" her alleged symptoms, but that her "statements concerning the
intensity, persistence and limiting effects" of those symptoms were "not entirely credible." (See
page 20 above.) He provided five specific reasons for this determination. (See R. 20.)
Evidence of Atrophy
ALJ Stacchini found that Newman's claim that she "spends most days lying down the
entire day with her leg elevated" was undermined by the lack of medical records showing "signs
such as atrophy or loss of strength that one may expect with such extreme inactivity." (Id.) This
argument is problematic for several reasons.
"[I]t is well-settled that 'the ALJ cannot arbitrarily substitute his own judgment for
competent medical opinion.'" Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998);15/ see also, e.g.,
Cora v. Colvin, 15 Civ. 1549, 2016 WL 4581343 at *2 (S.D.N.Y. Sept. 1, 2016) ("'[I]n the absence
of a medical opinion to support the ALJ's finding as to a plaintiff's ability, it is well-settled that the
ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.'"). After issuing
this oft-quoted principle, the Second Circuit in Balsamo provided an example of offending
Here, for example, the ALJ stated without citing to any medical opinion that
"there is no atrophy of any muscle groups indicative of disuse for the purpose of
avoiding discomfort [ ] as one would expect . . . based on the claimant's allegation
of constant and totally disabling pain." In so finding, the ALJ plainly did not
"choose between properly submitted medical opinions," but rather improperly "set
Accord, e.g., Salisbury v. Colvin, 13 Civ. 2805, 2015 WL 5458816 at *26 (S.D.N.Y. Sept.
1, 2015), R. & R. adopted, 2015 WL 5566275 (S.D.N.Y. Sept. 21, 2015); Garcia v. Barnhart,
01 Civ. 8300, 2003 WL 68040 at *6 (S.D.N.Y. Jan. 7, 2003) ("The ALJ must defer questions
requiring medical expertise to physicians."); Andino v. Bowen, 665 F. Supp. 186, 191
(S.D.N.Y. 1987) ("[T]he Secretary may not 'substitute his or her own inferential judgment
for a competent medical opinion, particularly where the ALJ's judgment assumes some
degree of medical expertise and would amount to rendering an expert medical opinion which
is based on competence he or she does not possess.'").
his own expertise against that of [ ] physician[s]" who submitted opinions to him.
Balsamo v. Chater, 142 F.3d at 81. In other words, the Second Circuit views "one would expect"
arguments skeptically where they constitute a medical judgment unsupported by a competent
opinion justifying the "expectation."
Courts in this Circuit accordingly have rejected arguments based on the lack of
medical evidence "one would expect" given a claimant's assertions. See, e.g., Oomen v. Berryhill,
16 Civ. 3556, 2017 WL 1386355 at *15 (S.D.N.Y. Apr. 17, 2017) ("The ALJ appears to cite
[claimant's] treatment history as a reason for discounting his alleged symptoms, observing that the
'claimant has not generally received the type of medical treatment one would expect for a totally
disabled individual.' Yet . . . the ALJ does not cite the opinion of any medical professional for the
notion that [claimant's] medical treatment fell below the level of a truly disabled person." (record
citation omitted)); Wilson v. Colvin, 213 F. Supp. 3d 478, 490 (W.D.N.Y. 2016) (improper for ALJ
to be "'playing doctor,' by relying on his own lay opinion"); Primes v. Colvin, No. 15-CV-06431,
2016 WL 446521 at *4 (W.D.N.Y. Feb. 5, 2016) ("With respect to the ALJ's observation that it was
'unusual' for Dr. Toor to have found no muscle atrophy, 'given the limitations the claimant alleges[,]'
this amounts to the ALJ impermissibly relying on his own lay opinion to fill perceived gaps in the
evidentiary record." (record citation omitted)).16/
These cases can be distinguished from those in which the ALJ made the
determination—based on common sense rather than medical expertise—that a claimant's
activities of daily living are not limited to the extent "one would expect" given his or her
assertions of completely debilitating symptoms. See, e.g., Trancynger v. Comm'r of Soc.
Sec., 16 Civ. 2153, 2017 WL 3868798 at *12 (S.D.N.Y. Sept. 5, 2017); Evans v. Comm'r
of Soc. Sec., 110 F. Supp. 3d 518, 539-40 (S.D.N.Y. 2015) (no clear error where "the ALJ
found that [the claimant's] 'complaints of disabling symptoms and limitations' were
inconsistent with her described daily activities, 'which [were] not limited to the extent one
Like the ALJ's inference in Balsamo, ALJ Stacchini's inference that a measurable loss
of strength or muscle atrophy necessarily would result from the "extreme inactivity" allegedly
asserted by Newman is unsupported by any medical opinion or SSA rulings permitting such
inferences. This basis for the ALJ's credibility determination thus is improper as a matter of law.
In addition, ALJ Stacchini's "one would expect" argument is premised on a
misrepresentation of Newman's testimony. According to ALJ Stacchini, Newman alleged "that
since December 2012 she spends most days lying down the entire day with her leg elevated." (R.
20.) Although Newman testified to being bed-bound for "weeks at a time" when her pain was at its
worst (see page 5 above), she repeatedly testified that her level of activity varied from day to day
with her pain level, which itself varied with the weather (see, e.g., R. 34 ("[I]f I'm having an okay
day where I'm not in my bed, I can sometimes put something in the microwave."), 34-35 ("Q: How
many days do you spend just in bed? A: It depends on the weather."), 37 ("Q: You go to family
outings? A: Depends. Depends on how I feel."), 38 ("Q: How many hours a day do you spend just
laying down? A: It depends on the day."); see also pages 4-6 above).
ALJ Stacchini's reference to Newman's "extreme inactivity" beginning in December
2012 also ignores her testimony that she attempted to go back to work in early 2013 (see page 4
above) and that she spent much of her time visiting doctors and therapists (see page 5 above).
Indeed, at times Newman was attending medical appointments roughly four times per week. (See
page 6 above.) Many of these appointments were with occupational or physical therapists with
whom Newman worked on strengthening her hand and legs. (See pages 7-8, 11, 13, 16-17 above.)
Finally, Newman testified that when not attending appointments, she would "lay on the couch
watching TV" (see page 5 above), but such testimony—without clarifying follow-up questioning
(see R. 38)—hardly constitutes a comprehensive account of her day-to-day life necessary to support
an inference of "extreme inactivity." Indeed, Newman's testimony that taking a shower often left
her "bed-bound for about 2-3 hours" afterwards (see page 5 above) implies that she was not bedbound the rest of her day.
The first "specific reason" cited by ALJ Stacchini to support an adverse credibility
determination therefore lacks a basis in the record and in law.
Newman's Subsistence During the Six Months Her Parents Spent
As the second specific reason for his adverse credibility determination, ALJ Stacchini
found that Newman's testimony that she was capable of "nearly no activities of daily living since
December 2012 . . . despite living alone for six months out of the year" was inconsistent with her
statements to Dr. Goccia that "she helps with cleaning, laundry, and shopping and is able to shower
and dress herself." (R. 20; see also R. 555; page 10 above.) This argument is premised on at least
two misrepresentations of the record.
First, Newman's statements to Dr. Goccia regarding her activities of daily living were
made in January 2014. (R. 554-55.) The relevant period did not end, however, until ALJ Stacchini
issued his decision in November 2015. (See page 2 above.) Much happened during that almost twoyear span. (See generally pages 10-18 above.) Perhaps most importantly, Newman underwent a
fourth surgery on her right hand in September 2014. (See page 12 above.) SSA guidelines
explicitly note surgery as a possible source of CRPS, see SSR 03-2p, 2003 WL 22399117 at *1 (Oct.
20, 2003) ("CRPS . . . can also result from . . . surgery."), and indeed, Newman testified that her
CRPS symptoms "got progressively worse" after her fourth surgery (R. 34; see also page 4 above).
The course of treatment detailed in the post-September 2014 medical records, as well as Newman's
subjective reports of increasing pain contained therein, support her testimony. (See generally pages
ALJ Stacchini's comment that Newman "alleges not engaging in any activity, despite
living alone for six months out of the year" is even more far afield. (R. 20.) The clear implication
of this comment is that Newman's complaints of activity-preclusive pain cannot be credible because,
if true, she could not have subsisted without her parents for six months. Yet, when ALJ Stacchini
asked at the hearing, "What do you do in the six months when you live at home alone," Newman
responded, "My uncle comes by basically daily. He comes in and helps me." (R. 34.) Newman also
testified that she took "Medicaid cab rides" to doctor's appointments (id.), and that a neighbor
"comes up to help" with cleaning when her parents are away (R. 35).17/
The second "specific reason" ALJ Stacchini claimed supported an adverse credibility
determination therefore lacks support in the record.
Newman's Use of a Sling
ALJ Stacchini next concluded Newman's testimony that "since the beginning of 2013,
she has kept her hand in a sling anytime she leaves the house . . . [was] not supported by statements
made to her doctors in the medical records." (R. 20.) Newman testified at her hearing:
[ALJ Stacchini]: Now you're in a sling today. How often do you wear the sling?
[Newman]: Anytime I travel or when I'm having severe pain up to my shoulder with
Q: So every time you got to a doctor's appointment, go out with anybody, go
anywhere. And how often when you're around the house do you use it?
A: I try not to use it in the house unless I'm having severe tremors. Then it kind of
Newman's testimony that she requires assistance with ADLs when her pain flares and her
parents are absent is partly corroborated by Dr. Faskowitz's November 23, 2015 "To Whom
It May Concern" letter opining that Newman required home care because, inter alia, she
"cannot perform light housekeeping and cannot drive." (See page 17 above.)
helps stabilize me along with my splint.
(R. 33-34.) Newman later testified: "I've had a sling since the first surgery. However, I've had to
wear it in the car and besides I tried to attempt to fly one time. And I had to wear the sling during
that time. But as of December 2014 is when I am consistently always in the sling and the splint."
"The [Commissioner] is entitled to rely not only on what the record says, but also on
what it does not say." Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983). However, ALJ
Stacchini's assertion that Newman's testimony was "not supported by statements made to her doctors
in the medical records" ignores those very records. Newman's doctors and therapists were well
aware of her use of a splint, brace and/or compression glove to alleviate pain (see, e.g., R. 385, 407,
409, 412, 419, 476, 672-73, 712, 729, 742, 753, 761-62, 794, 797, 800, 805, 817, 829, 850, 855),
and some of Newman's doctors did specifically note her use of a sling. Dr. Robinson reported that
Newman presented to her March 16, 2015 appointment with her right arm in a sling. (R. 800.)
Newman similarly presented to her June 19 and August 17, 2015 appointments with Dr. Batson
wearing a sling. (R. 838, 891.) During her May 26, 2015 occupational therapy appointment,
Newman and her therapist "[d]iscussed various sling options for supporting the arm during the day
when needed." (R. 836.) Finally, Dr. Faskowitz's "To Whom It May Concern" letter stated that
Newman "normally wears a sling on her right arm to relieve and prevent an increase in pain." (R.
The third "specific reason" ALJ Stacchini gave to support an adverse credibility
determination therefore lacks support in the record.
Newman's Demeanor At the Hearing
ALJ Stacchini gave "some slight weight" to the fact that although Newman "alleged
pain of 7 of 10" at her October 22, 2015 hearing, she "betrayed no evidence of pain or discomfort
while testifying." (R. 20.) An ALJ "'may . . . consider his or her own recorded observations of the
individual as part of the overall evaluation of the credibility of the individual's statements.'" Schaal
v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998);18/ see also 20 C.F.R. § 416.929(c)(3); SSR 96-7p, 1996
WL 374186 at *5 (July 2, 1996). The Second Circuit has cautioned, however—and ALJ Stacchini's
opinion acknowledges (R. 20)—that such observations "should be assigned only 'limited weight.'"
Schaal v. Apfel, 134 F.3d at 502; accord, e.g., Carroll v. Sec'y of Health & Human Servs., 705 F.2d
638, 643 (2d Cir. 1983) ("The ALJ's observation that [the claimant] sat through the hearing without
apparent pain, being that of a lay person, is entitled to but limited weight.").19/
The Court is skeptical that ALJ Stacchini's observations are worth any weight in the
context of this case. The medical records are replete with notes reflecting Newman's complaints of
pain of "7/10" and higher (see pages 7-8, 10-11, 13, 16 above), but not one instance in which a
medical expert questioned her sincerity. Indeed, Newman's treating physicians found her complaints
credible enough to justify surgery (see, e.g., page 12 above), a ganglion stellate block (see page 9
above), and an ongoing prescription for narcotic pain medication (see, e.g., pages 13-14 above; see
also R. 727). Moreover, ALJ Stacchini's observations move the goalpost: by focusing on how
Newman's pain affected her demeanor at the hearing, he ignored her claim that pain rendered her
right hand nonfunctional. ALJ Stacchini did not assert, for example, that he observed Newman use
Accord, e.g., Velez v. Colvin, 14 Civ. 1953, 2016 WL 3461155 at *10 (S.D.N.Y. Apr. 19,
2016), R. & R. adopted, 14 Civ. 1953, 2016 WL 3481154 (S.D.N.Y. June 21, 2016);
Carattini v. Colvin, 13 Civ. 7806, 2015 WL 1499509 at *11 (S.D.N.Y. Mar. 31, 2015);
Mangum v. Colvin, 13 Civ. 4213, 2015 WL 629403 at *14 (S.D.N.Y. Feb. 13, 2015).
Accord, e.g., Velez v. Colvin, 2016 WL 3461155 at *10; Mangum v. Colvin, 2015 WL
629403 at *14.
her right hand during the hearing. Thus, even assuming ALJ Stacchini's observations are entitled
to any weight, those observations neither account for nor outweigh the numerous medical records
supporting Newman's claims regarding the effects of pain on the functionality of her right hand.
(See generally pages 6-17 above.)
The fourth alleged "specific reason"—to the extent it is worth any weight—therefore
fails to support the breadth of ALJ Stacchini's adverse credibility determination.
Newman's "Stable" Medication Regimen
Finally, ALJ Stacchini noted "that current records from pain management . . . note
that [Newman] is very stable on her current regime[n] without current side effects noted." (R. 20.)
Dr. Faskowitz noted on four occasions between January 13, 2015 and August 7, 2015 that Newman
was "[v]ery stable" on her current medication regimen. (See page 14 above.) These records are
unclear, however, whether "stable" means Newman's pain was under control. For example, during
his final appointment with Newman on August 7, 2015, Dr. Faskowitz noted that she was "stable"
on her current regimen, but nevertheless opined that "it is medically necessary that [Newman] is
seen at an academic Pain Management Center." (See pages 15-16 above.) Such a referral would
be unnecessary if her pain was fully controlled. Moreover, the record contains several instances in
which Newman reported severe pain even when on her medication (see, e.g., page 8 above), and
some of those instances occurred after Dr. Faskowitz began noting Newman's "stability" (see pages
14, 16 above; see also R. 757, 794).
The fifth and final "specific reason," like the prior four reasons, relied on by ALJ
Stacchini to support his adverse credibility determination lacks support in the record.
The Court therefore remands for reconsideration. See, e.g., Turcotte v. Comm'r of
Soc. Sec., No. 16-CV-1100, 2017 WL 3437895 at *5 (N.D.N.Y. Aug. 10, 2017) ("[T]he Court
agrees with plaintiff that substantial evidence does not support the ALJ's credibility
determination. . . . Therefore, on remand, the ALJ should also re-evaluate plaintiff's credibility.");
Taylor v. Comm'r of Soc. Sec., 13 Civ. 5995, 2014 WL 2465057 at *13 (S.D.N.Y. May 21, 2014)
(Davison, M.J. & Briccetti, D.J.) (remanding where "the ALJ failed to sufficiently and accurately
discuss several factors relevant to determining Plaintiff's credibility").
ALJ Stacchini's Determination That Newman Retains the Capacity For
Occasional Right Handling and Right Fingering Also Must Be Reconsidered on
ALJ Stacchini determined that Newman retained the RFC to "perform less than the
full range of light work," except that she is limited to, inter alia, "occasional right handling and right
fingering." (R. 16.) Given Newman's testimony that pain rendered her right hand nonfunctional,
this RFC determination is at least partly based on ALJ Stacchini's conclusion that Newman's
testimony was not credible. See, e.g., Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) ("When
determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other
limitations into account."). As discussed above, ALJ Stacchini's credibility determination is not
supported by substantial evidence and must be reconsidered on remand. (See pages 27-36 above.)
The ALJ, therefore, should also reconsider the light work and "occasional right handling and right
fingering" aspects of the RFC determination on remand. See, e.g., Meadors v. Astrue, 370 F. App'x
179, 183 (2d Cir. 2010) ("Because we agree that the ALJ did not properly evaluate the Appellant's
testimony regarding her pain, we are unable to give his calculation of Appellant's RFC meaningful
review. On remand the ALJ must consider Appellant's subjective complaints of pain under the
proper standard and calculate her RFC accordingly.").
In so doing, the ALJ also should reconsider the other reasoning supporting the
determination that Newman retained the functional capacity for "occasional right handling and right
(See generally R. 18 (outlining the bases for ALJ Stacchini's right hand RFC
determination).) Although Newman's occupational therapy treatment notes occasionally reflect
modest improvement, a comprehensive review of those records indicates that Newman's right hand
pain and concomitant reduced functional capacity were a constant, with variation in severity
depending on the weather. (See pages 7-8, 11, 13, 16 above.) Furthermore, Newman continued
occupational therapy until late September 2015. (See R. 904; see also page 16 above.) Newman's
later therapy session records consistently indicate functional limitations for her right hand "due to
significant pain and weakness." (See page 16 above.) On remand, the ALJ should consider the
trends reflected in Newman's more recent treatment records and should avoid "cherry-pick[ing]
evidence in support of his own conclusions." Woodson v. Colvin, 15 Civ. 2353, 2016 WL 4362105
at *11 (S.D.N.Y. Aug. 10, 2016).
Finally, the Court notes that the "occasional right handling and right fingering" aspect
of ALJ Stacchini's RFC determination is unsupported by any medical expert opinion. (See generally
R. 20-21 (discussing opinion evidence).) Dr. Goccia opined that Newman was "severely limited in
activities requiring the use of her right hand" (see page 10 above), but ALJ Stacchini gave this
opinion only "some weight" because "'severe' is ill defined and does not provide a function by
function analysis" (R. 20). Dr. Goccia's observation that Newman was "unable to zip, button, and
tie with the right hand" should have provided enough context and constituted enough of a "function
by function analysis" to call into question Newman's capacity for "occasional right handling and
right fingering." (R. 557.)
Furthermore, ALJ Stacchini opined: "[t]o the extent that [Dr. Goccia's] opinion is
consistent with the overall record, limitations to the right non-dominant hand are addressed in the
above residual functional capacity." (R. 20.) Setting aside the conclusory appeal to "consistency
with the record," "[t]he Court in the past has criticized ALJ decisions that first state an RFC
determination and then state that medical evidence is consistent with the ALJ's RFC determination,
a way of reasoning that puts the cart before the horse." Campbell v. Comm'r of Soc. Sec., 15 Civ.
2773, 2016 WL 6462144 at *13 & n.15 (S.D.N.Y. Nov. 1, 2016) (Peck, M.J.) (citing cases). This
principle takes on additional importance when a medical opinion favorable to the claimant is being
dismissed as inconsistent with the ALJ's RFC determination. Dr. Goccia's opinion therefore should
be reconsidered on remand.
For the reasons set forth above, the Commissioner's motion (Dkt. No. 23) is DENIED
and Newman's motion (Dkt. No. 16) is GRANTED to the extent of remanding the case to the
Commissioner for further consideration.
New York, New York
October 6, 2017
Andrew J. Peck
United States Magistrate Judge
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