Hill v. Commissioner of Social Security
Filing
15
DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the 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 10/11/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
NANCY HILL,
Plaintiff,
6:17-CV-6770(MAT)
DECISION AND ORDER
-vNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
____________________________________
INTRODUCTION
Nancy
Hill
(“Plaintiff”),
represented by
counsel,
brings
this action under Title II of the Social Security Act (“the
Act”),
seeking
Berryhill,
review
Acting
Commissioner”
or
of
the
Commissioner
“Defendant”),1
final
of
decision
Social
denying
her
of
Nancy
Security
A.
(“the
application
for
disability insurance benefits (“DIB”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ competing motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure.
For
the
reasons
set
forth
below,
this
matter
is
remanded, as the Commissioner’s decision is legally erroneous and
not supported by substantial evidence.
1
Nancy A. Berryhill is no longer serving in this position. The Clerk of
Court therefore is directed to substitute “The Commissioner of Social Security”
for “Nancy A. Berryhill, Acting Commissioner of Social Security” as the defendant
in this action. See 20 C.F.R. § 422.210(d).
PROCEDURAL BACKGROUND
On October 6, 2014, Plaintiff protectively filed for DIB,
alleging
disability
beginning
June
5,
2014.
(Administrative
Transcript (“T.”) 245-48). The claim was initially denied on
February 10, 2015, and Plaintiff timely requested a hearing.
(T. 159, 177-78). A hearing was conducted via videoconference on
June 9, 2016, by Administrative Law Judge Michael Carr (“the
ALJ”). (T. 130-58). Plaintiff appeared with her attorney and
testified. A vocational expert (“VE”) also testified.
The
ALJ
promulgated
applied
by
the
the
five-step
Commissioner
for
sequential
evaluation
adjudicating
disability
claims. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (T. 117). At step two, the ALJ
found
Plaintiff
malformation,2
had
the
severe
degenerative
changes
impairments
in
her
of
Chiari
lumbar
spine,
headaches, and affective disorder. (Id.). At step three, the ALJ
found that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals the severity of any
2
A Chiari malformation is a structural defect in the base of the skull and
cerebellum. Normally, the cerebellum and parts of the brain stem sit above the
foramen magnum, an opening in the skull through which the spinal cord passes.
When part of the cerebellum extends below the foramen magnum and into the upper
spinal canal, it is called a Chiari malformation. Headache, especially after
sudden coughing, sneezing, or straining, is the hallmark sign of a Chiari
malformation. See National Institute of Neurological Disorders and Stroke Chiari
M a l f o r m a t i o n
F a c t
S h e e t ,
a v a i l a b l e
a t
https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/FactSheets/Chiari-Malformation-Fact-Sheet (last accessed Oct. 9, 2018).
impairment
in
the
Listing
of
Impairments.
(T.
118).
Before
proceeding to step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 404.1567(b) with certain restrictions,
including
that
she
is
limited
to
performing
simple,
routine
tasks, and making simple work-related decisions. (T. 118-19). At
step four, the ALJ determined that Plaintiff is unable to perform
any of her past relevant work as a data entry clerk or as a
social welfare eligibility examiner. (T. 123). At step five, the
ALJ
found
that
Plaintiff
can
perform
the
requirements
of
occupations such as a marker (Dictionary of Occupational Titles
(“DOT”) No. 209.587-034, light), router (DOT No. 222.587-034,
light), and electric equipment assembler (DOT No. 729.687-010,
light), with 291,922; 53,624; and 5,269 positions, respectively,
in the national economy. (T. 123-24).
The ALJ issued an unfavorable decision on August 1, 2016.
(T.
112-29).
Plaintiff
timely
requested
review
of
the
ALJ’s
decision by the Appeals Council. (T. 244-45). The Appeals Council
initially denied Plaintiff’s request for review on September 25,
2017. (T. 96-99). On October 31, 2017, upon consideration of new
evidence submitted by Plaintiff, the Appeals Council again denied
3
Plaintiff’s request for review. (T. 1-4). Plaintiff instituted
this action on November 10, 2017. (Docket No. 1).
SCOPE OF REVIEW
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
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).
The district court must accept the Commissioner’s findings of
fact, provided that such findings are supported by “substantial
evidence”
in
the
Commissioner’s
substantial
record.
findings
evidence,
“as
shall
See
42
to
any
be
U.S.C.
fact,
§
if
conclusive”).
405(g)
(the
supported
by
“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) (quotation omitted). The reviewing
court nevertheless must scrutinize the whole record and examine
evidence that supports or detracts from both sides. Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted). “The
deferential standard of review for substantial evidence does not
apply
to
the
Commissioner’s
conclusions
4
of
law.”
Byam
v.
Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
Plaintiff
following
contends
reasons:
(1)
that
the
remand
is
Commissioner
warranted
for
failed
properly
to
the
consider newly submitted evidence; (2) the ALJ improperly weighed
medical
Plaintiff
evidence;
could
and
(3)
perform
the
other
ALJ
work
incorrectly
in
the
found
national
that
economy.
Defendant argues that the ALJ did not commit legal error and that
his
determination
was
supported
by
substantial
evidence
and
should be affirmed. For the reasons discussed below, the Court
finds that the Commissioner’s decision is legally erroneous and
unsupported by substantial evidence. Therefore, the Court remands
this
matter
to
the
Commissioner
for
further
proceedings
consistent with this Decision and Order.
I.
The Appeals Council Failed to Properly
Submitted Evidence (Plaintiff’s Argument 1)
Plaintiff
argues
that
the
Appeals
Council’s
Assess
Newly
decision
to
reject newly submitted medical evidence is erroneous as a matter
of law and not supported by substantial evidence. (Plaintiff’s
Brief (“Pl’s Br.”) (Docket No. 8-1) at 12-15). On October 31,
2017, the Appeals Council denied Plaintiff’s request for review
because
(1)
the
records
from
5
Guthrie
Medical
Group
dated
August 10, 2016, to October 13, 2016; Thurber & Thurber dated
August 25, 2016; Upstate Medical University dated August 31,
2016,
to
September
28,
2016;
Arnot
Health
Services
dated
September 7, 2016, to October 4, 2016; Dr. Mary Ann Moore dated
October
13,
2016;
and
Sherrie
Adler-Gribble,
FNP-C,
dated
August 1, 2017, did not relate to the period at issue; and
(2) the records from Thurber & Thurber dated May 12, 2016, to
June 23, 2016; Guthrie Medical Center dated July 28, 2016; and
U.H.S. Wilson Medical Center dated September 15, 2016, did not
show a reasonable probability that they would change the outcome
of the ALJ’s decision. (T. 1-4).
The
Appeals
Council
must
consider
“new
and material”
evidence if it “relates to the period on or before the date of
the
administrative
law
judge
hearing
decision.”
20
C.F.R.
§ 404.970(b). The Second Circuit has “held that medical evidence
generated after an ALJ’s decision cannot deemed irrelevant solely
because of timing.” Newbury v. Astrue, 321 F. App’x 16, 18 n.2
(2d Cir. 2009) (summary order) (citing Pollard v. Halter, 377
F.3d
183,
claimant’s
pertinent
193
(2d
Cir.
condition
if
it
2004)).
subsequent
discloses
“the
Evidence
that
to
ALJ’s
the
severity
and
bears
upon
a
decision
is
continuity
of
impairments existing before the earning requirement date or [if
6
it] identif[ies] additional impairments, which could reasonably
be presumed to have been present.” Pollard, 377 F.3d at 194
(quoting Lisa v. Sec’y of Dep’t of Health and Human Servs. of
U.S., 940 F.2d 40, 43 (2d Cir. 1991)). Evidence that is generated
after the ALJ’s decision may nevertheless be relevant to the
disability
period
claimant’s]
if
earlier
the
“evidence
contentions
directly
regarding
supports
[her]
[the
condition.”
Pollard, 377 F.3d at 193.
The Court finds that the records from Dr. Moore, Ms. AdlerGribble, Arnot Health Services, Upstate Medical University, and
Guthrie
Medical
Plaintiff’s
Group
demonstrate
and
migraines
the
psychiatric
other
continuing
severity
of
conditions.
In
particular, the records support Plaintiff’s contention that she
continues
to
suffer
from
multiple
migraines
a
month,
which
several of Plaintiff’s providers have stated would prevent her
from
being
able
concentration.
to
maintain
The Appeals
proper
Council’s
work
attendance
determination
that
and
these
records were not relevant to the period as issue is not supported
by substantial evidence.
Plaintiff has continuously treated with her primary care
physician at Guthrie Medical Group since the alleged onset date.
During these visits, Plaintiff consistently reported migraines,
7
including
during
a
June
5,
2014
visit
in
which
Plaintiff
indicated she has had headaches for four to five days in a row.
In addition, on September 4, 2014, Plaintiff indicated that her
decompression surgery for her Chiari malformation “has not helped
her pain at all.” (T. 417). These records document that Plaintiff
has received various treatments including decompression surgery
and the placement of nerve blocks, and she has been prescribed
Percocet
regularly
with
minimal
relief.
The
newly
submitted
records from Guthrie Medical Group dated from August 10, 2016, to
October
13,
continuing
2016,
severity
are
of
relevant
because
Plaintiff’s
they
migraines
indicate
and
the
cognitive
impairments. On August 10, 2016, Plaintiff indicated that her
latest occipital nerve block procedure “did not help her pain”
and
that
she
continues
to
have
pain
“all
the
time”
in
her
“occipital, frontal, and temporal area.” (T. 60). Likewise, on
September
8,
2016,
Plaintiff
indicated
that
she
still
gets
“headaches and pain in the front of her head,” she has “routine
pain,” and is going for an angiogram to further assess her brain
aneurysm. (T. 42). The records from Guthrie Medical Group are
relevant to the disability period as they indicate the ongoing
severity
of
the
Plaintiff’s
condition,
and
her
obtain relief despite trying various treatments.
8
inability
to
Likewise, the records from Upstate Medical University dated
August 31, 2016, to September 28, 2016, indicate that Plaintiff
continued
ability
to
to
suffer
maintain
from
work
migraines,
which
attendance
and
would
impact
concentration.
her
On
August 31, 2016, the Plaintiff presented to Dr. Yahia Lodi for a
follow-up
appointment
due
to
a
two-millimeter
intracranial
aneurysm that was discovered during the disability period. She
indicated that she still has headaches, which extend around her
forehead
and
to
the
top
of
her
head.
(T.
39).
A
cerebral
angiogram was recommended and was found to be consistent with her
aneurysm. (T. 36, 41). After the cerebral angiogram, Plaintiff
suffered a “nervous breakdown” and an MRI of her brain showed
spots in her left hemisphere. (T. 36). An additional MRI was
scheduled in six months. (Id.). Dr. Lodi indicated that Plaintiff
should “be vigilant about her symptoms” as he was concerned her
aneurysm was going to enlarge or become symptomatic. (T. 94).
Plaintiff had prior brain aneurysms and panic attacks, which were
both documented during the disability period. (T. 545-46).
The records from Arnot Health Services covering the period
from September 7, 2016, to October 4, 2016, as well as a report
dated
August
indicate
that
1,
2017,
Plaintiff
authored
continued
9
by
to
Ms.
Adler-Gribble,
suffer
from
also
migraines,
anxiety, and depression. Plaintiff began treating with Ms. AdlerGribble at Arnot Health Services before the ALJ’s opinion. In
January 2016, Ms. Adler-Gribble reported that Plaintiff “has a
headache daily” and suffers from severe depression. (T. 1088-89).
Likewise,
on August
1,
2017,
Ms.
Adler-Gribble
filled
out a
questionnaire regarding Plaintiff’s continuing migraines and the
effect these have on her daily activities. (T. 18-19). Ms. AdlerGribble reported that Plaintiff would miss three days of work per
month because of her conditions and would be off-task from work
between fifteen to twenty percent of the time. (T. 19). She
indicated that her answers reflected Plaintiff’s condition from
June
5,
2014,
to
the
date
of
her
opinion,
which
expressly
includes the disability period. (Id.).
On October 13, 2016, Mary Ann Moore, Psy.D. performed a
psychiatric
Plaintiff
evaluation.
had
appropriately
others,
making
“moderate
dealing
(T.
to
with
appropriate
10-16).
marked
stress,
work
Dr.
Moore
limitations
relating
decisions,
opined
in
regard
adequately
and
that
to
with
maintaining
a
regular work schedule.” (T. 14). In addition, Dr. Moore observed
that Plaintiff had “moderate limitations in regard to maintaining
attention and concentration.” (T. 14). Although she was able to
count
and
do
simple
calculations,
10
Plaintiff
displayed
poor
judgment
due
to
her
anxiety
and
depression,
her
memory
was
impaired for more complex information, and she appeared “quite
anxious.” (T. 13-14). Plaintiff stated, “I do not go anywhere.
What does it matter?” and that she does not “do too much of
anything anymore.” (T. 14). Dr. Moore further indicated that the
examination results “appear to be consistent with psychiatric
issues,
which
may
significantly
interfere
with
[Plaintiff’s]
ability to function on a daily basis.” (T. 14). There is nothing
in the record to suggest that Dr. Moore’s opinion was based on
new and unrelated conditions that Plaintiff did not already have
prior
to
the
ALJ’s
decision.
Rather,
Dr.
Moore
noted
that
Plaintiff continued to suffer from depression, anxiety, and other
cognitive defects causing her to have difficulty in completing
daily activities. (T. 15). Moreover, Dr. Moore’s opinion was only
rendered
two
months
after
the
ALJ’s
opinion,
and
Plaintiff
presented to Dr. Moore with the same complaints she had during
the disability period. Thus, Dr. Moore’s opinion is relevant to
the period as issue.
The Appeals Council’s determination to reject records from
U.H.S. Wilson Medical Center dated September 15, 2016, because
they did not show a reasonable possibility that they would not
change the ALJ’s opinion is also not supported by substantial
11
evidence. The records from U.H.S. Wilson Medical Center show that
Plaintiff had a small aneurysm in her left paraophthalmic region.
(T. 94). Dr. Lodi indicated that Plaintiff should “be vigilant
about her symptoms” and, should she develop symptoms, she should
present herself to the emergency department. (T. 36). He also
recommended a follow-up MRI in March 2017. (Id.). The U.H.S.
Wilson
Medical
severity
of
Center
record
Plaintiff’s
is
consistent
condition.
with
the
Therefore,
ongoing
substantial
evidence does not support that this record would not change the
ALJ’s decision.
Conversely, the Appeals Council’s decision to reject records
from Thurber & Thurber because they did not show a reasonable
probability
that
they
would change
the
outcome of
the
ALJ’s
decision is supported by substantial evidence. The records from
Thurber
&
Thurber
regarded
Plaintiff’s
toe
pain,
which
is
unrelated to her non-exertional limitations, the only portion of
the ALJ’s RFC assessment challenged in this appeal. (T. 86-91).
Likewise, the records from Guthrie Medical Center dated July 28,
2016, do not show a reasonable probability that they would change
the outcome of the ALJ’s decision as they involved Plaintiff’s
follow-up visit for her CPAP machine, in which she indicated she
is “doing well” and has “no complaints.” (T. 78-82). Therefore,
12
the Appeals Council’s determination with respect to these records
is supported by substantial evidence.
In sum, the Court finds that the Appeals Council’s decision
with regard to the newly submitted records from Dr. Mary Ann
Moore,
Sherrie
Adler-Gribble
FNP-C,
Arnot
Health
Services,
Upstate Medical University, U.H.S. Wilson Medical Center, and
Guthrie Medical Group was unsupported by substantial evidence.
Remand is required so that the ALJ, in the first instance, can
consider
these
records
and
weigh
the
opinions
offered
by
Ms. Adler-Gribble and Dr. Moore.
II.
The ALJ Failed to Properly Consider and Weigh the Medical
Opinions of Plaintiff’s Physicians (Plaintiff’s Argument 2)
Plaintiff
also
contends
that
the
ALJ
did
not
properly
consider and weigh the medical opinions related to her ability to
maintain an acceptable level of work pace and attendance. Pl’s
Br. at 15-21. The ALJ’s RFC did not include any limitations on
Plaintiff’s ability to maintain an acceptable work pace or that
Plaintiff would require absences from work. The ALJ weighed the
opinions of Dr. Sara Long and Dr. Christopher Yanusas to support
her finding that Plaintiff would be able to maintain a regular
work schedule. (T. 121-22).
Under the Commissioner’s regulations, an ALJ is required to
“evaluate
every
medical
opinion
13
[he]
receives.”
20
C.F.R.
§ 416.927(c). The regulations also provide that opinions from
non-treating
factors
as
physicians
used
in
are
the
to
be
evaluated
weighing
of
using
opinions
the
from
same
treating
physicians. 20 C.F.R. § 404.1527(f)(1). To determine how much
weight to give an opinion, the ALJ should consider factors such
as “(i) the frequency of examination, and the length, nature, and
extent
of
support
the
of
treatment
the
relationship;
treating
(ii)
physician’s
the
evidence
opinion;
(iii)
in
the
consistency of the opinion with the record as a whole; (iv)
whether the opinion is from a specialist; and (v) other factors
brought to the Social Security Administration’s attention that
tend
to
support
or
contradict
the
opinion.”
20
C.F.R.
§ 404.1527(d)(2).
The ALJ assigned “little weight” to the opinion by clinical
psychologist
examination
Dr.
of
Yanusas,
Plaintiff
who
conducted
at
the
a
request
neuropsychological
of
her
treatment
providers on May 20, 2016. (T. 122, 1102-06). Dr. Yanusas opined
that
Plaintiff
“would
have
difficulty
maintaining
gainful
employment due to frequen[t] absences [that] the severity of her
chronic
pain
Dr. Yanusas’s
would
cause.”
opinion,
(T.
because
1106).
“he
did
The
ALJ
not explain
discounted
well the
correlation between pain and absences in his opinion [or] that
14
the claimant would have frequent absences due to [the] severity
of her chronic pain.” (T. 122). While the ALJ does properly
consider that Dr. Yanusas is not a pain-management specialist,
substantial evidence does not support the ALJ’s weighing of his
opinion, particularly when considering it alongside the opinions
of
Ms.
Adler-Gribble
and
Dr.
Moore,
which
were
improperly
rejected by the Appeals Council. Ms. Adler-Gribble opined that
Plaintiff would miss three work days per month and be off task
between fifteen to twenty percent of the time. (T. 19). While
Ms. Adler-Gribble, a certified family nurse practitioner, is not
traditionally
an
“acceptable
medical
source,”
she
has
had
a
fairly lengthy treating relationship with Plaintiff. Moreover,
the Commissioner’s policy statements provide that opinions from
“other sources” such as Ms. Adler-Gribble are still “important
and should be evaluated on key issues such as impairment severity
and functional
effects.”
SSR
06-03p,
2006
WL
2329939,
at
*3
(S.S.A. August 9, 2009). This policy ruling recognizes that nurse
practitioners have assumed a greater percentage of treatment and
evaluation,
which
had
previously
been
handled
primarily
by
physicians and psychologists. (Id.). Likewise, Dr. Moore opined
that Plaintiff has a moderate to marked ability to maintain a
regular work schedule and has “moderate limitations in regard to
15
maintaining attention and concentration.” (T. 14). Dr. Moore, a
licensed psychologist, is an “acceptable medical source,” who can
render an opinion that may be entitled to controlling weight. SSR
06-03p, 2006 WL 2329939, at *1.
Ms.
Adler-Gribble’s
and
Dr.
Moore’s
opinions
are
also
consistent with Dr. Yanusas’s findings based on Plaintiff’s test
results.
He
indicated
that
the
Plaintiff
has
migraines,
depression, and anxiety. (T. 1105). Dr. Yanusas reported that the
Plaintiff is “easily overwhelmed and daily activities are much
[too] difficult for her to complete” as she has chronic pain
daily. (T. 1103). In particular, Dr. Yanusas found that Plaintiff
had difficulties in maintaining attention and with her visual,
working,
and
short-term
memory.
(T.
1104).
Plaintiff’s
concentration difficulties were found to make “her inefficient
when
completing
multi-task
procedures
and
having
to
process
information quickly at times.” (T. 1105). He also noted that “her
weakness in visual memory should be monitored as this [could]
possibly represent a residual effect of [her] aneurysm.” (Id.).
Dr. Yanusas noted that Plaintiff’s memory loss appeared to be
“the result of premorbid weakness in concentration and memory
combined with chronic pain associated with her recent history of
neurological
complications
and
16
associated
depression
and
anxiety.” (T. 1106). The ALJ did not address the test results
obtained by Dr. Yanusas regarding her limitations in maintaining
attention, concentration, and work pace, or the impact of these
limitations on Plaintiff’s ability to perform substantial gainful
employment on a full-time basis. This error was not harmless in
light of the VE’s testimony that an employer would not tolerate a
worker being off task 20 percent of the workday, and that if a
worker dropped under 15 percent, there would be an erosion of at
least fifty percent of the jobs. (T. 156-57). In addition, the VE
testified that most employers would permit one day of absence per
month and would permit two absences per month if the employer had
an absentee policy. (T. 156). The VE also opined that if an
employee was consistently absent two to three times per month,
she would be unable to sustain employment. (Id.).
As
Plaintiff
psychologist
evidence
Dr.
points
Long
regarding
is
out,
the
the
only
Plaintiff’s
opinion
arguably
ability
to
of
consultative
contrary
medical
concentrate
and
maintain a regular work schedule. Dr. Long evaluated Plaintiff on
January 6, 2015 (T. 121-22, 565-68), and opined that she could
maintain a regular schedule, could perform complex tasks, was
able
to
learn
new
tasks,
and
could
maintain
attention
and
concentration. (Id.) Dr. Long noted that “[t]he results of the
17
present evaluation appear to be consistent with psychiatric and
cognitive problems, which may, at this time, interfere with her
ability to function on a regular basis.” (Id.). The ALJ observed
that Dr. Long was not a treating source and failed to identify
any areas of actual functional limitation. (T. 122). Therefore,
the ALJ found, Dr. Long’s opinion about the consistency of her
evaluation with Plaintiff’s mental health complaints was entitled
to “some weight.” Although the ALJ stated that she was assigning
only “some weight” to Dr. Long’s opinion, she evidently credited
the
absence
formulating
of
functional
Plaintiff’s
limitations
RFC.
This
in
was
that
opinion
erroneous.
when
While
Dr. Yanusas administered extensive neuropsychological testing,
Dr. Long’s evaluation of Plaintiff’s concentration and memory was
based solely on a brief mental status examination. In addition,
unlike Dr. Yanusas, Dr. Long apparently did not consider the
effect of Plaintiff’s severe medical impairments on her abilities
to maintain a regular work schedule and appropriately maintain
attention, concentration, and pace.
For the foregoing reasons, remand is required so that the
ALJ can re-weigh Dr. Yanusas’s and Dr. Long’s opinion.
18
III.
Failure to Present Complete Hypotheticals to VE at Step
Five (Plaintiff’s Argument 3)
Plaintiff also argues that the ALJ incorrectly concluded she
could perform other work in the national economy because the
hypotheticals presented to the VE did not include her limitations
with respect to her fatigue, pain, cognitive difficulties, and
impairments related to her work pace and attendance. Pl’s Br. at
21-22. Because the Court has found that remand is necessary to
address
errors
made
at
earlier
steps
of
the
sequential
evaluation, it declines to rule on Plaintiff’s step-five claim at
this time.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision is legally erroneous and unsupported by
substantial
evidence.
Accordingly,
Plaintiff’s
Motion
for
Judgment on the pleadings is granted to the extent that the
Commissioner’s decision is reversed, and the matter is remanded
to
the
Commissioner
consistent
with
this
for
further
Decision
and
administrative
Order.
In
proceedings
particular,
on
remand, the Commissioner is directed to (1) consider the new and
material evidence submitted by Plaintiff to the Appeals Council;
(2) weigh the opinions of Ms. Adler-Gribble and Dr. Moore, which
were
included
as
part
of
the
new
19
evidence
submitted
to
the
Appeals Council; (3) reweigh the opinions of Dr. Yanusas and Dr.
Long; and, if necessary, reformulate Plaintiff’s RFC and consult
with a VE. Defendant’s Motion for Judgment on the Pleadings is
denied. 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:
October 11, 2018
Rochester, New York
20
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