Vishner v. Colvin

Filing 17

DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case).. Signed by Hon. Michael A. Telesca on 4/24/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

VICTORIA A. VISHNER,
Plaintiff,
-vs-

No. 1:14-CV-00431 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Victoria A. Vishner (“plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) denying her
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules

of

Civil

Procedure.

For

the

reasons

discussed

below,

plaintiff’s motion is granted to the extent that this case is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.
II.

Procedural History
The record reveals that in June 2009, plaintiff (d/o/b May 14,

1974) applied for DIB, alleging an amended onset date of disability
as of August 19, 2009. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge
Diana Weaver on February 4, 2011, in Phoenix, Arizona, where

plaintiff lived at the time. The ALJ issued an unfavorable decision
on February 22, 2011. On March 29, 2012, the Appeals Council
reversed the ALJ’s decision and remanded the matter with specific
instructions, including instructions to give further consideration
to the examining source opinion of Dr. Drake and the nonexamining
opinion of Dr. Jonathan Zuess, and to obtain supplemental evidence
from a vocational expert (“VE”) to clarify the effect of the
assessed limitations on plaintiff’s occupational base.
On

remand,

plaintiff’s

case

was

assigned

to

ALJ

David

Lewandowski (“the ALJ”), who held a hearing in Buffalo on August 8,
2012. In a decision dated September 10, 2012, the ALJ denied
plaintiff’s application. The Appeals Council denied review of that
decision and this timely action followed.
III. Summary of the Evidence
Medical treatment records prior to the relevant time period
reveal that plaintiff had a longstanding diagnosis of bipolar
disorder, two prior suicide attempts, and a history of selfcutting. On August 19, 2009, the amended alleged onset date,
plaintiff presented to psychiatrist Dr. Gorky Herrera after calling
an emergency crisis line. Plaintiff reported that she had not taken
lithium, which she had previously been prescribed for bipolar
symptoms, for three years. Dr. Herrera diagnosed her with bipolar
disorder,

not

otherwise

specified

(“NOS”),

and

borderline

personality disorder. He noted a global assessment of functioning
(“GAF”) score of 38, indicating some impairment in reality testing
2

or communication, or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood. See
generally

American

Psychiatric

Association,

Diagnostic

and

Statistical Manual of Mental Disorders (“DSM–IV”), at 34 (4th ed.
rev. 2000). He prescribed lithium and instructed plaintiff to begin
outpatient care.
Plaintiff then treated at the Marc Center Outpatient Clinic
for approximately a year from September 2009 through November 9,
2010. Her treating counselor was counselor Larry Fry, MA, LPC,1 who
assessed plaintiff at an initial evaluation with a GAF of 52,
indicating moderate symptoms. Treatment notes from the Marc Center,
signed by nurse practitioner (“NP”) Terry Hilger, indicate that
plaintiff’s
complained

mental
about

condition
labile

fluctuated,

moods.

She

was

and

plaintiff

prescribed

often

various

psychiatric drugs including Risperdal (an antipsychotic), Abilify
(an antipsychotic), Klonopin (a sedative used to treat anxiety),
and Lamictal (an anticonvulsant often used for treatment of bipolar
symptoms).

Findings

of

mental

status

examinations

(“MSEs”),

however, were largely unremarkable, although plaintiff was often
noted to have decompensated rather than remained stable between
appointments.

1

Licensed professional counselors (LPCs) are master’s-degreed
mental health service providers, trained to work with individuals,
families, and groups in treating mental, behavioral, and emotional
problems and disorders.
3

The record contains several opinions from consulting state
agency psychologists. On August 10, 2009, Dr. Elliott Salk examined
plaintiff and opined that she had no limitations other than a mild
impairment in social interaction because plaintiff “talked a little
quickly.” T. 421. On August 20, 2009, reviewing psychologist
Dr. Rosalia Pereyra on August 20, 2009, opined that plaintiff had
no severe mental impairments. Dr. Pereyra appeared to base her
assessment entirely on Dr. Salk’s consulting exam.
On January 13, 2010, Dr. Celia Drake examined plaintiff and
opined that she was able to follow and recall simple instructions
in a work setting, and that she may have problems responding
appropriately in a work setting “although she should be able to
perform

in

some

work

settings

where

she

[had]

less

social

interaction.” T. 472. A second reviewing psychologist, Dr. Jonathan
Zuess, completed an assessment on February 8, 2010, in which he
opined that plaintiff was markedly limited in her ability to accept
instructions

and

respond

appropriately

to

criticism

from

supervisors, and that she was moderately limited in several areas
involving understanding and memory, sustained concentration and
persistence, and social interaction. As noted above, the Appeals
Council order dated March 29, 2012 instructed the ALJ to give
further consideration to the opinions of Drs. Drake and Zuess on
remand.
In a November 9, 2010 functional capacity report, plaintiff’s
counselor Mr. Fry opined that plaintiff had slight difficulty

4

understanding
difficulty

and

remembering

carrying

out

simple

simple

instructions;

instructions

and

moderate

interacting

appropriately with the public; marked difficulty understanding and
remembering detailed instructions, making judgments on simple workrelated decisions, interacting appropriately with co-workers, and
responding appropriately to changes in a routine work setting; and
extreme difficulty interacting appropriately with supervisors and
responding appropriately to work pressures in a usual work setting.
He

commented

that

plaintiff’s

“severe

and

rapid

mood

swings

disallow employment due to her constant conflicts with supervisors,
co-workers, and the public.” T. 554.
After moving from Arizona to the Buffalo, New York area in May
2011, plaintiff eventually began psychiatric treatment at Horizon
Corporations
assessment,

on

June

29,

2012.

In

plaintiff

was

assessed

an

initial

with

labile

psychiatric
mood,

fair

concentration, insight, and judgment, and an otherwise normal MSE.
She reported NP Katie Millard that she had last engaged in selfcutting behavior in March 2012. Plaintiff was prescribed Lamictal,
Celexa

(a

selective

serotonin

reuptake

inhibitor

[“SSRI”]),

Abilify, and Klonopin.
IV.

The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status

requirements of the Act through December 31, 2013. At step one of
the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the
ALJ found that plaintiff had not engaged in substantial gainful
5

activity since November 24, 2008, the application date. At step
two, the ALJ found that plaintiff had the following medically
determinable

impairments:

bipolar

disorder

and

borderline

personality disorder. At step three, the ALJ found that plaintiff’s
impairments did not meet or medically equal a listed impairment.
Before proceeding to step four, the ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels, with the
following

nonexertional

remembering,

limitations:

understanding

and

“she

carrying

out

[was]

limited

instructions

to
and

performing simple tasks”; she could “have no or limited proximity
to co-workers with superficial interaction with co-workers”; she
could not “interact with the general public,” could have only
occasional supervision, and could perform only “non-confrontational
and non-negotiations type jobs”; could occasionally make simple
decisions; and she could tolerate occasional changes in a work
setting. T. 27. At step four, the ALJ found that plaintiff was
capable of performing her past relevant work as a retirement home
cleaner and plant care worker, “as they are actually performed and
normally performed, and as a photo machine equipment operator, as
it is normally performed.” T. 31. Therefore, the ALJ did not
proceed to step five and found plaintiff not disabled at step four.
V.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the

6

decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Discussion of Vocational Expert Testimony

Plaintiff contends that the ALJ erred in failing to address
conflicting

testimony

pursuant

to

SSR

06-03p.

Specifically,

plaintiff argues that the vocational expert (“VE”) testimony taken
in

Arizona

conflicted

with the

new

VE

testimony

taken

after

plaintiff’s case had been transferred to ALJ Lewandowski. According
to plaintiff, ALJ Lewandowski failed to reconcile the testimony of
the two experts prior to concluding that plaintiff could perform
past relevant work (“PRW”).
In plaintiff’s initial hearing, which took place in Arizona,
ALJ Diana Weaver questioned VE Linda Tolley as to whether an
individual with the following limitations could perform any of
plaintiff’s PRW: “limited to simple, unskilled work, requiring work
that is isolated with only occasional supervision . . . only
occasional interaction with the public and occasional interaction
with coworkers[.]” T. 119. VE Tolley testified that this individual
could perform the positions of housekeeper (or, as plaintiff
performed it, retirement home cleaner) and stock clerk, but none of
plaintiff’s remaining PRW, which included the jobs of cashier,
plant care worker, and photo machine equipment operator. When ALJ
Weaver added the restriction of no interaction with the public, VE

7

Tolley testified that such an individual was “precluded from all
work.” T. 120.
At plaintiff’s hearing in Buffalo, ALJ Lewandowski asked VE
Jay Steinbrenner if an individual with the restrictions of the RFC
(i.e., a full range of work at all exertional levels, but limited
to remembering, understanding and carrying out instructions and
performing simple tasks; no or limited proximity to co-workers with
superficial interaction with co-workers; no interaction with the
general public, only occasional supervision, and performance of
only

“non-confrontational

occasional

simple

and

non-negotiations

decisionmaking;

and

tolerance

type

jobs”;

of occasional

changes in a work setting) could perform any of plaintiff’s PRW. VE
Steinbrenner responded that such an individual could perform the
jobs of retirement home cleaner and plant care worker both as
normally performed and as performed by plaintiff, and photo clerk
as normally performed (but not as performed by plaintiff, because
her job duties had included interaction with the public). As
plaintiff notes, ALJ Lewandowski’s hypothetical contained even more
limitations than the most restrictive hypothetical given by ALJ
Weaver, discussed above.2
Plaintiff argues that the VEs’ testimony conflicted, because
VE Tolley testified that when restricted to no contact with the
public, plaintiff could perform no PRW, while VE Steinbrenner

2

Although VE Steinbrenner testified that an individual with plaintiff’s
RFC could perform additional work in the national economy including commercial
laundry worker and packaging machine operator, ALJ Lewandowski did not go on to
make a step five finding due to his finding, at step four, that plaintiff could
perform various PRW. Regardless, the Commissioner has not made a harmless error
argument with regard to this issue.

8

testified that plaintiff could still perform three of her past
relevant jobs. Plaintiff contends that, pursuant to SSR 06-03p, ALJ
Lewandowski was obligated to resolve this conflict in the evidence.
The Commissioner counters that ALJ Lewandowski was to consider
plaintiff’s case de novo, and including holding a new hearing and
issuing a new decision in the case. According to the Commissioner,
because ALJ Lewandowski was not bound by the prior decision in the
case, the ALJ was not obligated to reconcile conflict between two
competing VE testimonies. See doc. 11-1 at 21 (citing Uffre v.
Astrue, 2008 WL 1792436, *7 (S.D.N.Y. Apr. 18, 2008) (noting that
where case has been remanded, “the first decision [had] no bearing
on these proceedings”) (emphasis adeded) (citing Social Security
Administration,

Office

of

Disability

Adjudication

and

Review,

Hearings, Appeals and Litigation Law Manual, I-2-8-18(A) (available
at www.ssa.gov))). The Commissioner also contends that SSR 06-03p
does not apply to VE testimony, but only to “care providers who are
not ‘acceptable medical sources.’” Doc. 11-1 at 22.
Initially, the Court finds that SSR 06-03p does not appear to
apply to VE testimony. SSR 06-03p3 was issued, in part, “[t]o
clarify how [the SSA] consider[s] opinions from sources who are not
‘acceptable

medical

sources.’”

Titles

II

&

XVI:

Considering

Opinions & Other Evidence from Sources Who Are Not “Acceptable Med.
Sources” in Disability Claims . . ., SSR 06-03P (S.S.A. Aug. 9,
2006), at *1. The ruling gives examples of “other source” evidence,

3

SSR 06-03p was rescinded by Federal Register Notice Vol. 82, No. 57, p.
15263 effective March 27, 2017, but remained in effect during the time period
relevant to this case.

9

including educational personnel, public and private social welfare
agency personnel, and family, caregivers, or friends of applicants.
The Court has found no authority for plaintiff’s proposition that
vocational experts are one of the “other sources” contemplated by
this ruling, and the examples given by the Administration do not
provide support for the conclusion that VEs are included within
this ruling as “other source” evidence.
However, simply because SSR 06-03p does not explicitly apply
to the situation here does not mean that ALJ Lewandowski was
absolved from reconciling the conflicting evidence given by the
VEs.4 Moreover, as plaintiff points out in her reply memorandum,
the specific issue presented in this case is unique. Although it is
true that, upon a remand by the Appeals Council, the ALJ is to
consider the case de novo, the ALJ obviously does so with reference
to

the

complete

administrative

record,

which

includes

any

previously-taken VE testimony. The Second Circuit’s decision in
Uffre does not hold otherwise; the decision merely notes that,

4

Although neither party cites SSR 00-4p, that ruling provides that “[w]hen
there is an apparent unresolved conflict between VE . . . evidence and the DOT,
the adjudicator must elicit a reasonable explanation for the conflict before
relying on the VE . . . evidence to support a determination . . . about whether
the claimant is disabled.” Policy Interpretation Ruling: Titles II & XVI: Use of
Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational
Info. in Disability Decisions, SSR 00-4P (S.S.A. Dec. 4, 2000). At the very
least, the conflicting testimony of these two VEs put the ALJ on notice of an
apparent inconsistency between the VE testimony and the DOT, since it does not
appear that both VEs’ conflicting testimony could be consistent with the DOT. See
In ac Diaz v. Astrue, 2012 WL 3903388, *9 (D. Conn. Aug. 2, 2012), report and
recommendation adopted, 2012 WL 3854958 (D. Conn. Sept. 5, 2012) (“In accordance
with SSR 00–4p, an ALJ has an affirmative duty to ask whether there are
inconsistencies with the VE’s testimony and the DOT.”).

10

after a remand, an ALJ’s prior decision, which has been vacated,
does not bear on the proceedings on remand. 2008 WL 1792436 at *7.
Although the Court has not located any case law directly
analogous to the instant case, relevant precedent does recognize VE
testimony as evidence which, if materially inconsistent with the
Dictionary of Occupational Titles (“DOT”), some other evidence in
the record, or SSA policy, must be revisited and reconciled on
remand. See, e.g., Robles v. Comm’r of Soc. Sec., 2016 WL 7048709,
*6 (N.D.N.Y. Dec. 5, 2016) (remanding where VE testimony presented
conflict in the evidence such that “the Court [could not] determine
whether

substantial

evidence

support[ed]

the

ALJ’s

step-five

findings”) (citing Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir.
2014) (“[T]he record does not reflect whether the VE or the ALJ
even recognized the possible conflict between the hypothetical
[given by the ALJ] and [the] DOT job listing. . . . Further, the VE
did not explain the possible conflict and the ALJ sought no such
explanation.”)); Morales v. Astrue, 2012 WL 4793868, *1 (S.D.N.Y.
Oct. 9,

2012)

(holding

that

the ALJ’s

erroneous

reliance

on

testimony of the vocational expert that was inconsistent with SSA
policy compelled

remand).

The

Court

is

not convinced

by

the

Commissioner’s argument that, on the specific facts of this case,
the

ALJ

had

no

duty

to

resolve

the

conflicting

evidence

–

especially considering that if VE Tolley’s original testimony had
been credited, ALJ Lewandowski would have been obligated to find
that plaintiff could not perform any PRW and would have had to move
on to step five of the analysis.

11

Generally speaking, “the resolution of [conflicting evidence]
is the province of the ALJ[.]” Pascariello v. Heckler, 1985 WL
3837, *4 (S.D.N.Y. Nov. 12, 1985) (citing Richardson v. Perales.
402 U.S. 389, 399 (1971)). The Court is not presented with any
authority as to why this general rule should not be applied to the
resolution of conflicts in VE testimony, especially here where VE
Tolley’s testimony, if credited over VE Steinbrenner’s, would
render

ALJ

Lewandowski’s

step

four

finding

unsupported

by

substantial evidence and necessitate proceeding to step five. In
short, the ALJ’s failure to reconcile the inconsistent VE testimony
in

this

case

resulted

in

a

decision

that

was

not

based

on

substantial evidence or the correct legal standards. See Duran v.
Astrue, 654 F. Supp. 2d 1298, 1304 (D. Colo. 2009) (remanding,
finding

that

the

“ALJ’s

failure

to

reconcile

[the]

internal

inconsistency [in the VE’s testimony] show[ed that] the ALJ’s [step
four] finding . . . was not based upon substantial evidence and the
correct legal standards”); Patton v. Colvin, 2013 WL 6018059, *6
(C.D. Cal. Nov. 12, 2013) (remanding where “apparent conflicts
exist[ed] between . . . two sources of vocational evidence,” in
that case, VE testimony and the DOT, and noting that the “ALJ’s
error was not harmless because there was ‘an apparent conflict with
no basis for the vocational expert’s deviation’”). Accordingly,
this case is remanded for further consideration of the VE testimony
from both prior hearings. The ALJ is directed to recall a VE to
clarify, with specific reference to the DOT, whether plaintiff with
the RFC found on remand is able to perform any PRW. The Court notes

12

that, after consideration of the further issues discussed below,
the ALJ’s RFC finding may be altered on remand.
–is this affected by later issues? Directions on remand - RFC may
be altered
B.

Evaluation of Counselor Fry’s Opinion

Plaintiff contends that the ALJ failed to properly weigh the
opinion of her counselor, Mr. Fry. Mr. Fry is an “other source”
pursuant to the regulations. See 20 C.F.R. § 404.1513(d); SSR 0603p (listing social workers and counselors as other sources). ALJ
Lewandowski did not explain what weight he gave to Mr. Fry’s
opinion, but stated that he gave it no “controlling or extra weight
because a counselor’s opinion is not a medical opinion [pursuant to
the regulations].” T. 31.
The

ALJ

stated

that

he

considered Mr. Fry’s

opinion

in

limiting plaintiff to “non-confrontational and non-negotiations
type

jobs

coworkers,

with

extremely

supervision

and

limited
the

interaction/contact

public.”

T.

31.

However,

with
the

decision makes clear that the sole factor the ALJ used in deciding
not to afford the opinion any “extra weight” was the fact that
Mr. Fry was an “other source,” not a “medical source,” under C.F.R.
§ 404.1513. This was error. An other source’s opinion must be
considered in light of the factors applicable to medical sources.
See Saxon v. Astrue, 781 F. Supp. 2d 92, 104 (N.D.N.Y. 2011) (“In
weighing the opinions of ‘other sources’, the ALJ must use the same
factors for the evaluation of the opinions from “acceptable medical
sources” enumerated in 20 C.F.R. 404.1527(d).”).

13

Because Mr. Fry was the only treating source to provide a
functional assessment, it was even more important for the ALJ to
carefully consider and weigh the opinion – even if this meant
giving it more weight than the consulting opinions. See id. (“Based
on the particular facts of a case, such as length of treatment, it
may

be

appropriate

for

an

ALJ

to

give

more

weight

to

a

non-acceptable medical source than a treating physician.”); Wells
v. Colvin, 2015 WL 6829711, *4 (W.D.N.Y. Nov. 6, 2015) (collecting
cases).
This case is therefore remanded for further consideration of
Mr. Fry’s opinion. If the ALJ decides to discount Mr. Fry’s
opinion, he must provide good reasons. See Kentile, 2014 WL 2014 WL
3534905 at *8 (“The Regulations require the ALJ to engage in a
detailed analysis of [the treating opinion] and provide ‘good
reasons’ for discounting [it].”) (citing Stytzer v. Astrue, 2010 WL
3907771, *6 (N.D.N.Y. 2010)). If the ALJ deems it necessary, he may
reach out to plaintiff’s current and local treating providers and
obtain further opinion evidence as to her functional limitations.
C.

Discussion of the Opinions of Drs. Drake and Zuess

Plaintiff contends that the ALJ failed to properly weigh the
opinions

of

consulting

examining

psychologist

Dr.

Drake

and

consulting reviewing psychologist Dr. Zuess. As discussed above,
Dr. Drake opined that although plaintiff was able to follow and
recall simple instructions in a work setting, she may have problems
responding appropriately in a work setting but “should be able to
perform

in

some

work

settings

14

where

she

[had]

less

social

interaction.” T. 472. A second reviewing psychologist, Dr. Jonathan
Zuess, completed an assessment on February 8, 2010, in which he
opined that plaintiff was markedly limited in her ability to accept
instructions

and

respond

appropriately

to

criticism

from

supervisors, and that she was moderately limited in several areas
involving understanding and memory, sustained concentration and
persistence, and social interaction. The Appeals Council explicitly
ordered the ALJ on remand to further consider the opinions of
Drs. Drake and Zuess.
Although he discussed the opinions of Drs. Drake and Zuess,
ALJ Lewandowski did not state what weight, if any, he gave to them.
This failure violated not only the Appeals Council’s instructions,
but also the regulations in general. See Dommes v. Colvin, 2016 WL
7104900, *4 (N.D.N.Y. Dec. 6, 2016) (“[R]eviewing courts have found
that failure to comply with the Appeals Council’s remand order may
be grounds for remand.”); 20 C.F.R. § 404.1527(c) (“Regardless of
its source, we will evaluate every medical opinion we receive.”).
Accordingly, on remand, the ALJ is directed to further consider the
opinions of Drs. Drake and Zuess, as the Appeals Council ordered,
and explain the weight given to this opinion evidence. On remand,
the ALJ must clearly explain what evidence in the record supports
the specific functional limitations found in the RFC.
D.

Consideration of Lay Evidence

Finally, plaintiff contends that the ALJ failed to properly
evaluate the evidence given by plaintiff’s husband, Scott Vishner,
and plaintiff’s friend, Linda Fenton, in Third Party Function

15

Reports completed as part of plaintiff’s application. These reports
described various functional limitations and noted plaintiff’s
frequent mood swings, which in the words of Ms. Fenton, “[made] it
hard to be around her sometimes.” T. 344. Mr. Vishner reported that
plaintiff cleaned the house “about 2 times a month while in a manic
obsessive state,” did not handle stress well, and “her routine must
remain constant or she slips into manic depression states.” T. 36269.
The ALJ gave these statements no weight, finding that “[g]iven
the nature of their relationship to the claimant, they [were],
understandably, sympathetic to the claimant.” T. 31. The ALJ erred
in assigning no weight to Mr. Visher’s and Ms. Fentons opinion for
the

sole

“[S]pouses

reason
[and]

that

they

friends”

were
are

“sympathetic”
“other

to

sources”

plaintiff.
under

the

regulations. 20 C.F.R. 404.1513(d); SSR 06-03p. As “other source”
evidence, the opinions from plaintiff’s husband and friend, like
the opinion of counselor Fry, must be weighed with reference to the
factors applicable to medical opinion evidence. See Saxon, 781 F.
Supp. 2d at 104. On remand, the ALJ is directed to do so.
The Court notes plaintiff’s request that this case be remanded
solely for the calculation and payment of benefits. Unfortunately,
on this record, the Court is unable to grant this relief without
engaging in an impermissible reweighing of the evidence. The
evidence in the record is not so persuasive as to the issue of
disability that it can be conclusively said that plaintiff is
disabled. Cf. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).

16

On remand, however, the Court directs the ALJ to accept any further
evidence

regarding

disability,

including

additional

opinion

evidence from any treating sources, which plaintiff provides in a
timely manner.
VI.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 15) is denied and plaintiff’s
motion (Doc. 8) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.

The Clerk of the Court is

directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 24, 2017
Rochester, New York.

17