Roberts v. Commissioner of Social Security

Filing 21

RULING granting 16 Motion for Judgment on the Pleadings; denying 19 Motion for Judgment on the Pleadings. This case is remanded for further proceedings consistent with this opinion, pursuant to sentence four of 42 U.S.C. §405(g). Signed by Holly B. Fitzsimmons on 3/12/19. (AGE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
------------------------------x
:
ROY C. ROBERTS, III
:
:
v.
:
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
------------------------------x

Civil No. 1:17-CV-01129 (HBF)

RULING ON CROSS MOTIONS
Plaintiff Roy C. Roberts, III, brings this action pursuant
to 42 U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security which denied his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security
Act, 42 U.S.C. §401 et seq. (“the Act”). Plaintiff has moved to
reverse or remand the case for a rehearing. The Commissioner has
moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Judgment on the Pleadings [Doc. #16] is GRANTED and this matter
is REMANDED to the Commissioner for further administrative
proceedings. Defendant’s Motion for Judgment on the Pleadings
[Doc. #19] is DENIED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.

1

Plaintiff protectively filed an application for DIB and SSI
benefits on October 9, 2013. In both applications plaintiff
alleged disability as of March 20, 2011; that was later amended
to March 29, 2013.1 [Certified Transcript of the Record, Compiled
on January 30, 2018, Doc. #5 (hereinafter “Tr.”) 20, 47, 112-13;
205-14, 278-80]. Plaintiff alleged disability due to diabetes,
neuropathy in hands and feet, vision problems due to diabetes
and metal plate in ankle. [Tr. 123, 242]. His applications were
denied on January 23,2014. [Tr. 134-41]. Plaintiff filed a
timely request for a hearing before an Administrative Law Judge
(“ALJ”) on February 25, 2014. [Tr. 142-44].
On March 17, 2016, Administrative Law Judge (“ALJ”) Bryce
Baird held a hearing, at which plaintiff appeared with an
attorney and testified. [Tr. 37-88]. Vocational Expert (“VD”)
Michael A. Klein also testified at the hearing. [Tr. 74-85]. On
June 10, 2016, the ALJ found that plaintiff was not disabled,
and denied his DIB and SSI claims. [Tr. 17-36]. Plaintiff filed
a timely request for review of the hearing decision on June 10,
2016. [Tr. 203-04]. On August 31, 2017, the Appeals Council
denied review, thereby rendering ALJ Baird’s decision the final
decision of the Commissioner. [Tr. 1-6]. The case is now ripe

Plaintiff amended the alleged onset date of disability to March
29, 2013, on the record during the ALJ’s hearing and in a
pretrial brief dated March 16, 2016. [Tr. 47, 278-80].
1

2

for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse and/or remand the Commissioner’s
decision.
II.

STANDARD OF REVIEW
The review of a social security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
3

standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
4

(internal citations omitted).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore
entitled to benefits, Mr. Roberts must demonstrate that he is
unable to work after a date specified “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). Such impairment or impairments
must be “of such severity that he is not only unable to do his
5

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.” 42 U.S.C.
§423(d)(2)(A); see also 20 C.F.R. §404.1520(c)(requiring that
the impairment “significantly limit[ ] ... physical or mental
ability to do basic work activities” to be considered “severe”).2
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:

DIB and SSI regulations cited herein are virtually identical.
The parallel SSI regulations are found at 20 C.F.R. §416.901 et
seq., corresponding to the last two digits of the DIB cites
(e.g., 20 C.F.R. §404.1520 corresponds with 20 C.F.R. §416.920).
2

6

Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from his physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (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.”

7

Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial
statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
IV.

THE ALJ’S DECISION
Following the above-described five step evaluation process,

ALJ Baird concluded that plaintiff was not disabled under the
Social Security Act. [Tr. 17-36]. At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity
since March 29, 2013, the alleged onset date.3 [Tr. 22].
At step two, the ALJ found that plaintiff had diabetes
mellitus, diabetic peripheral neuropathy, right ankle fracture
status post-surgery, right thumb fracture status post-surgery,
and diabetic retinopathy, all of which are severe impairments
under the Act and regulations. [Tr.23].
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpart P, Appendix 1. [Tr. 24]. The ALJ specifically
considered Listings 2.02 (loss of central visual acuity), and

SSI benefits are not payable for any period prior to the month
after the application is filed. See 42 U.S.C. §1382(c)(7); 20
C.F.R. §§416.335, 416.501. Plaintiff’s date last insured for
Title II benefits is September 30, 2016. [Tr. 22].
3

8

11.14 (peripheral neuropathies). [Tr. 24-25]. The ALJ also
conducted a psychiatric review technique and found that
plaintiff had no restriction in activities of daily living;
social functioning; and concentration, persistence or pace. [Tr.
23-24]. The ALJ found no episodes of decompensation. [Tr. 24].
Before moving on to step four, the ALJ found plaintiff had
the RFC
to perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except he can lift and
carry 10 pounds occasionally and 5 pounds frequently.
The claimant will be able to sit for up to six hours
in an 8-hour day and stand and/or walk up to 2 hours
in an 8-hour day. He could not use foot controls
bilaterally and is limited to frequent climbing of
ramps or stairs. In addition, he is limited to no
climbing of ladders ropes or scaffolds, and frequent
balancing. He is further limited to frequent handling
of objects, fingering of objects, and feeling of
objects bilaterally. Finally, the claimant should have
no exposure to excessively cold or hot environments,
no exposure to excessive vibration, and no exposure to
hazards such as unprotected heights or moving
machinery.
[Tr. 25-30].
At step four, the ALJ found plaintiff was unable to
perform any past relevant work. [Tr. 30-31]. At step five,
after considering plaintiff’s age, education, work
experience and RFC, the ALJ found that jobs existed in
significant numbers in the national economy that plaintiff
could perform. [Tr. 31-32].

9

V.

DISCUSSION
Plaintiff makes two arguments in support of his position

that the ALJ’s decision should be reversed and/or remanded. The
Court will address these arguments in turn.
A.

RFC Assessment

Plaintiff first argues that the RFC assessment was not
supported by substantial evidence and was legally erroneous.
[Doc. #16-1 at 9-14]. He contends that the ALJ erred in
substituting his own medical judgment for that of a physician
and “erred in failing to rely on any medical authority” in
determining the RFC. [Doc. #16-1 at 11]. The Court agrees.
An ALJ has the responsibility to determine a claimant’s
RFC based on all the evidence of record. 20 C.F.R.
§§404.1545(a)(1), 416.945(a)(1). The RFC is an assessment of
“the most [the disability claimant] can still do despite [his or
her] limitations.” 20 C.F.R. §404.1545(a)(1), 416.945(a)(1).
Although “[t]he RFC determination is reserved for the
commissioner...an ALJ’s RFC assessment is a medical
determination that must be based on probative evidence of
record.... Accordingly, an ALJ may not substitute his own
judgment for competent medical opinion.” Walker v. Astrue, No.
08-CV-0828(A)(M), 2010 WL 2629832, at *6 (W.D.N.Y. June 11,
2010)(quoting Lewis v. Comm’r of Soc. Sec., No. 6:00CV1225(GLS),
2005 WL 1899, at *3 (N.D.N.Y. Aug. 2, 2005)(internal citations
10

omitted)). Nevertheless, plaintiff has the burden to demonstrate
functional limitations that would preclude any substantial
gainful activity. See 20 C.F.R. §§§404.1545(a)(3), 416.945(a)(3)
(“In general, you are responsible for providing the evidence we
will use to make a finding about your residual functional
capacity.”); 42 U.S.C. §423(d)(5)(A)(“An individual shall not be
considered to be under a disability unless he furnishes such
medical and other evidence of the existence thereof as the
Commissioner of Social Security may require.”). Although the RFC
is assessed using “all the relevant evidence in [the] case
record,” id., the medical opinion of a treating physician is
given “controlling weight” as long as it is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques” and is not inconsistent with other substantial
evidence in the record. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2).
B.

Opinion Evidence

Plaintiff argues that the ALJ rejected all of the medical
opinions of record and improperly relied on his lay
interpretation of the bare medical findings to make the residual
functional capacity determination. [Doc. #16-1 at 9-11]. The
administrative record contains numerous detailed treatment
records, medical opinions from treating and examining sources,
lab results and diagnostic imaging that relate the medical
11

evidence to what plaintiff can and cannot do functionally.
Plaintiff accurately points out that there are numerous opinions
by his treating physicians that were discounted and/or rejected
by the ALJ.
Pursuant to 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2), a
treating source’s opinion will usually be given more weight than
a non-treating source. If it is determined that a treating
source’s opinion on the nature and severity of a plaintiff’s
impairment is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] case record,” the
opinion is given controlling weight. 20 C.F.R. §§404.1527(c)(2),
416.927(c)(2). If the opinion, however, is not “well-supported”
by “medically acceptable” clinical and laboratory diagnostic
techniques, then the opinion cannot be entitled to controlling
weight. Id. If the treating source’s opinion is not given
controlling weight, the ALJ considers the following factors in
weighing the opinion: length of treatment relationship,
frequency of examination, nature and extent of the treatment
relationship, relevant evidence used to support the opinion,
consistency of the opinion with the entire record, and the
expertise and specialized knowledge of the source. See 20 C.F.R.
§§404.1527(c)(2)-(6), 416.927(c)(2)-(6); Social Security Ruling
(“SSR”) 96-2P, 1996 WL 374188, at *2 (S.S.A. July 2, 1996). If
12

the treating physician’s opinion is not supported by objective
medical evidence or is inconsistent with other substantial
evidence in the record, the ALJ need not give the opinion
significant weight. See Poupore, 566 F.3d at 307. “The failure
to provide ‘good reasons for not crediting the opinion of a
claimant's treating physician is a ground for remand.’” Maenza
v. Colvin, No. 14-CV-6596, 2016 WL 1247210, at *11 (W.D.N.Y.
Mar. 24, 2016)(quoting Snell v. Apfel, 177 F.3d 128, 133 (2d
Cir. 1999) and citing Schaal v. Apfel, 134 F.3d 496, 505 (2d
Cir. 1998)(“Commissioner's failure to provide 'good reasons' for
apparently affording no weight to the opinion of plaintiff's
treating physician constituted legal error.”)).
1.
Primary Care Physician Dr. Vinod Patel and
Podiatrist Dr. James Burruano
Plaintiff began treatment with primary care physician Dr.
Vinod Patel in April 2012, for a medication renewal after “not
com[ing] to the clinic for the past 7 months.” [Tr. 521-25].
During the treatment relationship, Dr. Patel diagnosed plaintiff
with type 2 diabetes with neurological complications and type 2
diabetes melitius-uncomplicated, uncontrolled and found that
plaintiff was consistently not compliant with his diabetes
medication or diet [Tr. 559 (April 30, 2012, blood sugar
readings were between 220-350 mg/dl, history of diabetic
retinopathy and reported tingling in both feet for several
13

months); Tr. 555 (May 7, 2012, “patient is not at goal.
Hemoglobin A1C is >7”); Tr. 550-54 (August 29, 2012, noting that
plaintiff was living in a shelter without a stove, “DM poorly
controlled, monofilament testing showed sensation to light touch
decreased over toes bilaterally); Tr. 548-49 (September 13,
2012, “sugar is high, needs to come back on Monday and will
recheck the sugar ....”); Tr. 544 (November 19, 2012, plaintiff
“reporting that blood sugar reading was 224”); Tr. 540-43
(February 18, 2013, reporting average glucose readings at 180210. “The sensory exam shows diminished tactile sensation with
monofilament testing.”); Tr. 535-39 (July 24, 2013, noting
average glucose readings at 200-250. A1C >7. “Monofilament
testing: diminished tactile sensation with monofilament testing
throughout both feet.” “Compliance with medication discussed.”);
Tr. 526-34 (August 12, 2013, glucose reading at 451); Tr. 521,
525 (September 19, 2013, Glucose Finger Stick 373, “sugar is
running around 100-220, “Currently, patient is not at goal.”);
Tr. 728-32 (September 13, 2014, blood sugar was over 400,
returns after a year-missed multiple appointments, not compliant
with taking insulin, “diminished tactile sensation with
monofilament testing throughout both feet.”); Tr. 723-27
(September 24, 2014, acute care visit with Dr. Min Yang
presenting with lower extremity swelling, increased fatigue over
last month, “has been able to walk about 5 blocks and then has
14

to stop d/t fatigue.”); Tr. 718-224 (March 18, 2015, follow-up
post March 4 hospitalization for dehydration, hyponatremia and
hyperglycemia after a six month absence, also missed endocrine
appointment, average glucose reading 200-400, A1C 13); Tr. 71217 (April 17, 2015, not using any long acting insulin, blood
sugar readings are 150-250, A1C 13. “Patient is noncompliant
with diet and exercise.”); Tr. 707-11 (June 17, 2015, plaintiff
reported blood sugars “are frequently over 200.” “Plaintiff has
had neuropathy and placed his feet in hot water and did not
realize how hot it was.” Acquired blisters. Affecting his
walking and driving. Lower examination abnormal due to wounds on
his feet bilaterally, which are healing. Noted that plaintiff
had retinopathy surgery 3 weeks earlier. Directed to follow-up
with podiatrist, ophthalmologist, and endocrinologist.); Tr.

4

Dr. Patel wrote,
I have discussed with the patient about compliance
issue. Patient was encouraged to take his insulin on a
regular basis. Patient understands the possible
complications of uncontrolled blood sugar. I have
explained [to] him to have possible complication like
retinopathy which he is undergoing treatment. He can
also develop peripheral vascular disease, heart
disease, and peripheral neuropathy which he already
has. Patient was also told to comply with his
appointments. And I have told him that I’ll be
discharging him from my practice if he missed 1
appointment. He understands, accepts it and []he has
promised me to be more compliant.

[Tr. 721].
15

733-37 (January 15, 2016, “followed up with endocrine clinic”,
noting glucose finger stick results 229 and 295, awaiting start
with insulin pump.).
The ALJ gave some weight to Dr. Patel’s functional
limitation assessment dated July 24, 2013.5 [Tr. 29, 748-49]. Dr.
Patel found no limitations to mental functioning. [Tr. 749]. The
doctor found that plaintiff was very limited in walking,
standing, lifting, carrying, pushing pulling, sending, and
stairs or other climbing; moderately limited in using hands; and
no limitations to sitting, seeing, hearing or speaking. [Tr.
749]. The ALJ gave
this opinion some weight to the extent that it
supports the claimant is able to do work at a
sedentary exertional level. However, to the extent
that Dr. Patel limits the claimant further than the
residual functional capacity provides, for example,
his limitation that the claimant is very limited in
his ability to stand and walk, I give this portion of
the evidence little weight. This portion of the
opinion is not supported by the medical evidence of
record. Specifically, during his internal medicine
examination, the claimant did not require any
assistance ambulating and he testified to standing in
a factory after his amended alleged onset date and
using public transportation.
[Tr. 29].
On March 25, 2016, Dr. Patel completed a Manipulative

Dr. Patel completed a two page “Medical Examination for
Employability Assessment, Disability Screening, and
Alcoholism/Drug Addiction Determination” form. [Tr. 748-49].
This form was completed when plaintiff was healing from right
ankle surgery to remove hardware. [Tr. 535].
5

16

Limitations Medical Source Statement, identifying symptoms of
paresthesia, joint deformity and reduced grip strength
bilaterally to his hands. [Tr. 887-88]. Addressing
pain/paresthesia, the doctor stated that plaintiff “has tingling
and numbness and sometime[s] has sharp pain” and identified
“reduced or absent sensation” bilaterally to palm and dorsum.
[Tr. 887]. Plaintiff was limited to lifting less than 25 pounds
bilaterally. [Tr. 888]. During an 8-hour work day, Dr. Patel
opined that plaintiff would be able to grasp, turn, twist
objects with his hands left/right and do fine manipulation with
his fingers left/right less than 10% of the workday; and reach
in front of his body and overhead less than 50% of the workday.
[Tr. 888]. The doctor added, “If needed, I can get evaluation
from physiotherapy or EMG study.” [Tr. 888].
The ALJ gave this opinion little weight stating that
Although Dr. Patel is the claimant’s treating
physician and is familiar with his conditions, Dr.
Patel does not provide a narrative to support the
limitations he assigned to the claimant. Furthermore,
while the claimant has alleged diabetic neuropathy in
his hands as well as numbness and tingling and
increased pain from the residual effects of a
fractured right thumb, there is no evidence in the
record that these symptoms would limit the claimant to
the extent opined by Dr. Patel.
[Tr. 30].
On this record, the Court finds that the ALJ had an
obligation to seek additional information from Dr. Patel

17

regarding Roberts’s peripheral neuropathy to his hands and feet
and the impact those symptoms have on work-related functional
limitations. Indeed, the record shows that after July 2013, Dr.
Patel noted progressive changes in monofilament testing to
plaintiff’s feet with decreased sensation and an incident in
2015 of burning his feet during a water soak due to decreased
sensation to temperature.
Beginning in May 2015, plaintiff began treatment with
podiatrist Dr. James Burruano. [Tr. 811-14 (May 12, 2015,
initial evaluation); Tr. 807-10 (May 26, 2015, follow-up after
burning his feet during a water soak); Tr. 804-06 (December 14,
2015); Tr. 801-03 (February 8, 2016)]. In May and December 2015
and February 2016, plaintiff complained of “pain, decreased
sensation and tingling and burning” in both feet. [Tr. 811 (“++
tingling burning and marked numbness feet and ankles”); Tr. 801,
(describing pain at 7-8/10); Tr. 804 (“Pt. states the pain
before was a 6-7/10 but now it’s a 9/10.”)]. In addition to
experiencing neuropathic pain, plaintiff also stated that he was
sleepy when taking Gabapentin to treat the neuropathy. [Tr.
803]. Neurologic examinations revealed “Sensory-TemperatureDecreased.” [Tr. 802, 805]. Monofilament examinations revealed
that plaintiff could not feel his great toe, third toe or fifth
toe bilaterally. “Vibration-Decreased-Globally. ProprioceptionBilateral-Toes Impaired.” [Tr. 802, 805].
18

On March 28, 2016, Dr. Burruano provided a “To Whom It May
Concern” letter stating,
Roy Roberts has diabetic chronic painful neuropathy
with difficulty using machinery due to inability to
feel surfaces when standing sitting or walking. Mr.
Roberts also has pain and lancinatint sensations in
feet and legs due to diabetic progressive neuropathy.
He is currently under my care for neuropathy and has
been taking medication to assist him in reducing his
pain levels, but is still not able to perform labor
intensive work and operate machinery.”
[Tr. 890].
The ALJ gave this opinion
some weight insofar as it is consistent with the
medical evidence of record that shows the claimant is
capable of work at the sedentary exertional level
there is evidence in the record that the claimant’s
diabetic neuropathy has decreased his feeling
sensation (Ex. B10F at 1, B14F at 1). However, Dr.
Burruano does not provide a function-by-function
analysis of the claimant’s residual ability to engage
in work related activities and therefore his opinion
is only entitled to some weight.
[Tr. 30].
After discounting all of the opinions from plaintiff’s
treating physicians, including specialists, and a
consultative examiner, the ALJ found that plaintiff had the
RFC
to perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except he can lift and
carry 10 pounds occasionally and 5 pounds frequently.
The claimant will be able to sit for up to six hours
in an 8-hour day and stand and/or walk up to 2 hours
in an 8-hour day. He could not use foot controls
bilaterally and is limited to frequent climbing of
ramps or stairs. In addition, he is limited to no
19

climbing of ladders ropes or scaffolds, and frequent
balancing. He is further limited to frequent handling
of objects, fingering of objects, and feeling of
objects bilaterally. Finally, the claimant should have
no exposure to excessively cold or hot environments,
no exposure to excessive vibration, and no exposure to
hazards such as unprotected heights or moving
machinery.
[Tr. 25].
The Court is unable to reconcile the ALJ’s RFC finding with
the medical evidence of record, and the opinions of Mr.
Roberts’s treating physicians and the consultative examiner.
Because the ALJ gave little weight to Dr. Patel’s opinion that
plaintiff was very limited in his ability to stand and walk, and
had significant limitations to grasp, turn and twist objects,
engage in fine manipulations, with lifting restrictions, there
is no medical opinion regarding Roberts’s capacity to stand or
walk or lift, “which are necessary activities for sedentary
work.” Martin v. Berryhill, No. 16-CV-6184-FPG, 2017 WL 1313837,
at *3 (W.D.N.Y. Apr. 10, 2017)(“Because the ALJ rejected Dr.
Finkbeiner’s opinion, the record lacks any medical opinion as to
Martin’s physical ability to engage in work at any exertional
level on a regular and continuous basis in an ordinary work
setting. There is no medical opinion regarding her capacity to
sit, stand, walk, or lift, which are necessary activities for
sedentary work. See 20 C.F.R. §§ 404.1567(a), 416.967(a).”); see
also Maenza v. Colvin, No. 14-CV-6596, 2016 WL 1247210, at *12

20

(W.D.N.Y. Mar. 24, 2016)(“It is beyond dispute that ‘an ALJ who
chooses to adopt only portions of a medical opinion must explain
his or her decision to reject the remaining portions.’”)(quoting
Raymer v. Colvin, No. 14-CV-6009P, 2015 WL 5032669, at *5
(W.D.N.Y. Aug. 25, 2015)(citing Younes v. Colvin, No. 14-CV-170,
2015 WL 1524417, at *8 (N.D.N.Y. April 2, 2015)(“When [crediting
only portions of a medical source opinion] smacks of 'cherry
picking' of evidence supporting a finding while rejecting
contrary evidence from the same source, an administrative law
judge must have a sound reason for weighing portions of the
same-source opinions differently.”); Phelps v. Colvin, No. 12GV-976S, 2014 WL 122189, at *4 (W.D.N.Y. Jan. 13, 2014)(“The
selective adoption of only the least supportive portions of a
medical source's statements is not permissible.” (internal
quotations and brackets omitted)); Caternolo v. Astrue, No. 11CV-6601, 2013 WL 1819264, at *9 (W.D.N.Y. April 29, 2013)(“[I]t
is a fundamental tenet of Social Security law that an ALJ cannot
pick and choose only parts of a medical opinion that support his
determination.” (internal citations and quotations omitted))
(collecting cases); Searles v. Astrue, No. 09-CV-6117, 2010 WL
2998676, at *4 (W.D.N.Y. July 27, 2010)(“An ALJ may not credit
some of a doctor' s findings while ignoring other significant
deficits that the doctor identified.”); Dioguardi v. Comm'r of
Soc, Sec., 445 F.Supp.2d 288, 297 (W.D.N.Y. 2006)(“While the ALJ
21

is not obligated to reconcile explicitly every conflicting shred
of medical testimony ... [t]he plaintiff [] is entitled to know
why the ALJ chose to disregard the portions of the medical
opinions that were beneficial to [his] application for
benefits.” (internal quotations and citations omitted)).
While the Commissioner is free to decide that the opinions
of treating sources and other sources are entitled to no weight
or little weight, those decisions should be thoroughly
explained. Sears v. Astrue, Civil Action No. 2:11-CV-138, 2012
WL 1758843, at *3 (D. Vt. May 15, 2012). Indeed, when an ALJ
rejects all physician opinion evidence, an evidentiary deficit
exists. “[E]ven though the Commissioner is empowered to make the
RFC determination, ‘[w]here the medical findings in the record
merely diagnose [the] claimant’s exertional impairments and do
not relate those diagnoses to specific residual functional
capabilities,’ the general rule is that the Commissioner ‘may
not make the connection himself.’” Martin, 2017 WL 1313837, at
*3 (quoting Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933,
at *21 (W.D.N.Y. Mar. 6, 2015)).
“Because there is no medical source opinion or functional
assessment supporting the ALJ’s finding that [Mr. Roberts] can
perform sedentary work with restrictions, the Court concludes
that the RFC determination is without substantial support in the
record and a remand for further administrative proceedings is
22

appropriate.” House v. Astrue, No. 5:11-CV-915 (GLS), 2013 WL
422058, at *4 (N.D.N.Y. Feb. 1, 2013)(citing Suide v. Astrue,
371 F. App’x 684, 689-90 (7th Cir. 2010)(holding that “the
evidentiary deficit left by the ALJ’s rejection” of a
physician’s reports, but not the weight afforded to the reports,
required remand.)).
“In light of the ALJ's affirmative duty to develop the
administrative record, an ALJ cannot reject a treating
physician's diagnosis without first attempting to fill any clear
gaps in the administrative record.” Burgess v. Astrue, 537 F.3d
117, 129 (2d Cir. 2008)(quoting Rosa v. Callahan, 168 F.3d 72,
79 (2d Cir. 1999)); see Schaal v. Apfel, 134 F.3d 496, 505 (2d
Cir. 1998)(“Even if the clinical findings were inadequate, it
was the ALJ's duty to seek additional information from [the
treating physician] sua sponte.”)).
The proceedings before an ALJ are not supposed to be
adversarial. Where there are deficiencies in the
record, an ALJ is under an affirmative obligation to
develop a claimant's medical history “even when the
claimant is represented by counsel or ... by a
paralegal.” Perez v. Chater, 77 F.3d 41, 47 (2d
Cir.1996); see also Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996) (“It is the rule in our circuit that
‘the ALJ, unlike a judge in a trial, must herself
affirmatively develop the record’ in light of ‘the
essentially non-adversarial nature of a benefits
proceeding.’ This duty ... exists even when ... the
claimant is represented by counsel.” (quoting
Echevarria v. Secretary of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982))).

23

Richardson v. Barnhart, 443 F. Supp. 2d 411, 423 (W.D.N.Y.
2006).
Accordingly, the Court finds that the ALJ’s conclusion
that plaintiff can perform sedentary work with limitations
is not supported by substantial evidence and additional
administrative proceedings are required. This case is
remanded for proper consideration of the RFC in accordance
with the medical evidence, treating source opinions and
regulations. On remand, the ALJ should develop the record
as necessary to obtain further information as to
plaintiff’s functional limitations from treating and/or
examining physicians, including obtaining a consultative
examination or requesting a detailed functional assessment
by a medical expert, and thoroughly explain his findings in
accordance with the regulations. See Martin, 2017 WL
1313837, at *4 (citing Covey v. Colvin, 204 F. Supp. 3d
497, 507 (W.D.N.Y. 2016)). The Commissioner on remand,
“should employ whichever of these methods are appropriate
to fully develop the record as to [Roberts’s] RFC.” Id.
2017 WL 1313837, at *4.
2.

Consultative Examiner Dr. Donna Miller

Plaintiff argues, almost in passing, that the ALJ
erred when assigning “little weight” to the January 2014
opinion of consultative examiner Dr. Donna Miller. [Doc.
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#16-1 at 11; Tr. 29; 692-95]. Dr. Miller found that
plaintiff had a “mild limitation for prolonged standing and
walking.” [Tr. 695]. In fact, the ALJ found that Roberts
was more functionally limited than the agency consultant
Dr. Miller opined, due to the reported history of a
fractured ankle with residual pain and a history of
peripheral neuropathy in his feet. [Tr. 692; 320]. The ALJ
adopted Dr. Miller’s finding that plaintiff “should avoid
any temperature extreme, given his diabetic neuropathy.”
[Tr. 25 (finding that “the claimant should have no exposure
to excessively cold or hot environments...”]. The ALJ
accurately points out that Dr. Miller “did not place any
weight restriction on the claimant or provide a functionby-function analysis.” [Tr. 29]. While it is accurate that
a weight restriction was not assessed, the CE accounted for
plaintiff’s right hand pain and complaints of diabetic
neuropathy to his hands. The CE assessed fine motor
dexterity of the hands, finding that hand and finger
dexterity was intact and grip strength was 5/5 bilaterally.
[Tr. 692, 695]. Plaintiff provides no further argument or
basis for finding that the ALJ erred in the weight assessed
to the opinion of consultative examiner Dr. Miller. As set
forth above, the Commissioner will develop the record
further on remand.
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3.

Endocrinologist Dr. Paresh Dandona

Last, plaintiff argues that the Commissioner erred in
failing to properly evaluate the favorable opinions of treating
physician Dr. Paresh Dandona. [Doc. #16-1 at 14-20].
Plaintiff began treatment with endocrinologist Dr. Dandona
on June 22, 2015. [Tr. 823-27]. At his initial appointment,
plaintiff reported that in the prior month he was soaking his
feet in water and burned the tops of both feet, but the blisters
were now healed. [Tr. 823]. Plaintiff reported fasting blood
sugar ranging 200-300. Id. On examination, the doctor noted that
plaintiff’s musculoskeletal range of motions was normal,
digits/nails appeared normal and his gait was normal. [Tr. 825].
Glucose Finger stick was 49. [Tr. 826]. On neurological
examination, the doctor noted abnormal peripheral reflexes,
adding that the peripheral neuropathy should improve with better
glycemic control. [Tr. 825, 827]. Dr. Dandona adjusted the
diabetes medications, instructed plaintiff to meet with a CDE
[Certified Diabetes Educator] for carb counting, monitor glucose
and record in a provided log book; and noted that plaintiff was
a candidate for pump therapy. [Tr. 826]. Plaintiff was due to
return for a follow-up appointment in 3 weeks. [Tr. 827].
Plaintiff returned, however, almost seven months later, on
January 11, 2016. [Tr. 819-22]. Dr. Dandona noted that he had
not been seen since June 2015 and failed to show for two
26

appointments with the CDE for pump training. [Tr. 819]. His A1C
was 12.4%. [Tr. 819]. Plaintiff reported that his neuropathy was
unchanged. Id. “Review of systems [were] normal except as
noted.” [Tr. 819]. At this appointment, the doctor noted normal
peripheral reflexes. [Tr. 821]. Plaintiff’s glucose finger stick
reading was 295. [Tr. 821]. Diabetes medications were adjusted,
and plaintiff was provided with a new meter and asked to monitor
and keep a glucose log with a food diary. “Neuropathy: Await
improved control...Microalbuminuria: Await improved control.”
[Tr. 822].
Dr. Dandona saw plaintiff on February 8, 2016, for a
follow-up examination. [Tr. 815-19]. His physical examination
revealed no changes. [Tr. 815, 817]. Plaintiff’s glucose finger
stick reading was 55. [Tr. 818]. Diabetic medications were
adjusted. [Tr. 818]. The treatment plan articulated by the
doctor included diet, exercise, insulin and education. [Tr.
818]. “[C]omprehensive self-management skills (group), basic
nutrition management, self-blood glucose monitoring and insulin
pump instruction.” [Tr. 818]. The doctor noted that plaintiff’s
diabetes remained uncontrolled with an A1C greater than 13%.
[Tr. 818]. As set forth above, the record contains only three
treatment records from Dr. Dandona; June 2015, January and
February 2016.
On March 30, 2016, Dr. Dandona provided a “To Whom It May
27

Concern” letter, stating that Roberts
suffers from badly controlled Diabetes Mellitus with
elevated A1[C] levels for several years. He also has
severe peripheral neuropathy and macular degeneration.
His illness prevents him from working. Please grant
him the support he needs.
[Tr. 889].
In assessing “little weight” to Dr. Dandona’s opinion, the
ALJ found that the doctor’s
Opinion is on an issue reserved to the Commissioner.
The opinion of the claimant’s physician on the issue
of disability is not binding on the Administration
because it involves non-medical issues that are not of
the experts of the medical profession. According to
SSR 96-Sp, these opinions are not controlling in
regards to the residual functional capacity. The
weight to be given to such conclusions depends only on
the extent to which they are supported by specific and
complete clinical findings and are consistent with the
rest of the evidence in the file. As any medical
opinion, the opinion must be evaluated along with the
rest of the evidence in the case record to determine
the extent to which such opinions are supported by the
record. In addition, Dr. Dandona only provides a
conclusory opinion on the claimant’s disability and
does not provide a function-by-function analysis. For
these reasons, I give this opinion little weight.
[Tr. 30].
Here, Dr. Dandona’s treatment records noted normal
range of motion, normal gait, normal digitus/nails, no use
of an assisted device to ambulate, normal musculoskeletal,
both normal and abnormal peripheral reflexes were noted.
[Tr. 817, 821-22, 825, 827]. The doctor also noted that
plaintiff’s peripheral neuropathy should improve with
better glycemic control. [Tr. 827, 822]. Nevertheless,
28

plaintiff’s A1C was elevated in all three encounters with
Dr. Dandona. [Tr. 818, 822, 826]. Indeed, Dr. Patel’s
treatment records consistently state that plaintiff’s
diabetes was uncontrolled and Roberts’s AIC scores were
consistently at elevated levels between 2011 and 2016. See
e.g. Tr. 538 (12.5); Tr. 642 (14.4); Tr. 648 (12.9); Tr.
710 (10.8); Tr. 762 (10.9); Tr. 815 (12.4); Tr. 818 (13);
Tr. 826 (10.8). On this record, it is unclear how
plaintiff’s uncontrolled diabetes translates to work
related functional limitations. Dr. Dandona does not
provide an adequate explanation to reconcile his treatment
records with his opinion letter. As plaintiff’s treating
endocrinologist, he should be asked to provide further
information as to the work related limitations caused by
plaintiff’s diabetic condition.
VI.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Judgment on

the Pleadings [Doc. #16] is GRANTED. Defendant’s Motion for
Judgment on the Pleadings [Doc. #19] is DENIED. This case is
REMANDED for further proceedings consistent with this opinion,
pursuant to sentence four of 42 U.S.C. §405(g). See Curry v.
Apfel, 209 F.3d 117, 124 (2d Cir. 2000); 42 U.S.C. §1383(c)(3).
In light of the Court’s findings above, it need not reach
the merits of plaintiff’s remaining arguments. Therefore, this
29

matter is remanded to the Commissioner for further
administrative proceedings consistent with this opinion. On
remand, the Commissioner shall address the other claims of error
not discussed herein.
This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge [doc. #14] on
September 25, 2018, with appeal to the Court of Appeals. Fed. R.
Civ. P. 73(b)-(c).
SO ORDERED at Bridgeport, Connecticut this 12th day of
March 2019.
____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

30