DiMaggio v. Commissioner of Social Security

Filing 32

OPINION AND ORDER Adopting 18 Magistrate Judge's Report and Recommendation: denying Plaintiff's 15 Motion to Remand to SSA, granting Defendant's 17 Motion for Order Affirming the Decision of the Commissioner, and denying 22 Plaintiff's Motion for a Reversal based on his new arguments. Signed by Chief Judge Christina Reiss on 7/14/2015. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

1015 JUL 14 PM 4: 35
BY

STEVEN DIMAGGIO,
Plaintiff,
v.
CAROLYN W. COL YIN,
Acting Commissioner of Social Security
Administration,
Defendant.

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Case No. 5:13-cv-296

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 15, 17, 18 & 22)
This matter came before the court for a de novo review of the Magistrate Judge's
December 31, 2014 Report and Recommendation ("R & R") (Doc. 18). The R & R
recommends affirming the decision of Defendant Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration (the "Commissioner") and denying a
motion to remand filed by Plaintiff Steven Dimaggio (Docs. 15 & 17).
Plaintiff seeks a remand or reversal, pursuant to sentences four and six of 42
U.S.C. § 405(g), based on a decision by Administrative Law Judge ("ALJ") Dory Sutker
finding him not disabled. Plaintiff contends that the Commissioner should consider new
evidence on remand and that the Commissioner's decision that he is capable of
performing light work is not supported by substantial evidence. The Commissioner
opposes remand or reversal, arguing that the new evidence would not have altered the
decision to deny Plaintiff benefits. In addition, the Commissioner argues that Plaintiffs
request for reversal of the ALJ's decision should not be considered as the grounds for
reversal was not raised before the Magistrate Judge. If Plaintiffs new arguments are

considered, the Commissioner asserts that the ALJ' s decision is supported by substantial
evidence.
Plaintiff is represented by Paula J. Kane, Esq. The Commissioner is represented
by Special Assistant United States Attorney Luis Pere. The court took this matter under
advisement on May 17, 20 15.

I.

Procedural History.
Plaintiff originally applied for Social Security Disability Insurance Benefits

("SSDI") and Supplemental Social Security Income ("SSI") in November 2007. On
February 1, 2010, ALJ Sutker held a hearing on Plaintiff's applications and determined
that Plaintiff was not disabled. After Plaintiff appealed this decision on October 6, 2011,
this court (Reiss, C.J., presiding) remanded to the Commissioner for consideration of
Plaintiff's hypersomnolence and the combined effects ofhypersomnolence with
Plaintiff's other limitations.
On June 5, 2012, ALJ Sutker conducted a second hearing, at which Plaintiffwas
represented by counsel and testified. Plaintiff's wife also testified, as did a vocational
expert. On June 15, 2012, the ALJ issued a second decision in which she concluded that
Plaintiff was not disabled.
On November 8, 2013, Plaintiff filed a Complaint in this case, alleging that the
ALJ "failed to consider the severity of the plaintiff's pain and the soporific effects of his
prescribed narcotic medication[.]" (Doc. 4 at 4,

~

14.) He further asserts that the ALJ

erroneously concluded that he is capable of performing light work. In the pending
motion, however, Plaintiff sought only a remand under sentence six of 42 U.S.C.

§ 405(g) for consideration of new evidence. Plaintiff seeks to present the reports of
Charles Gluck, M.D., Theodore G. Williams, Ph.D., and Roy Shapiro, Ph.D. as additional
evidence. Plaintiff also indicates that he "was found disabled at the Disability
Determination Services level in a subsequent application filed after the last Appeals

2

Council decision dated September 9, 20 13 became final in the present action." (Doc. 15
at 1.) 1
On December 31, 2014, the Magistrate Judge issued a R & R, which reviewed the
reports of Dr. Williams, Dr. Gluck, and Dr. Shapiro and concluded that they would not
have altered the ALJ's decision. Objections to the R & R were due by January 20, 2015.
No objections were filed by that deadline. On January 28, 2015, the court adopted the
R & Rand issued a judgment in favor of the Commissioner. On February 25, 2015,
Plaintiff filed objections to the R & R and a motion to set aside judgment. The
Commissioner opposed the motion and Plaintiffs objections, arguing that Plaintiffs
objections were not timely and raised new arguments not raised before the Magistrate
Judge.
On April 7, 2015, the court granted Plaintiff relief under Fed. R. Civ. P. 60(b). On
April27, 2015, the court issued an Entry Order requesting additiona.l briefing regarding
whether the court should consider arguments that Plaintiff failed to raise before the
Magistrate Judge. Both parties responded with supplemental briefing.

II.

Whether the Court Should Consider Plaintiff's New Arguments.
In his objections to the R & R, Plaintiff raises arguments that challenge the ALJ's

decision on grounds arguably not raised and clearly not addressed by the Magistrate
Judge: (1) whether the ALJ followed the treating physician rule; (2) whether the ALJ's
conclusion that Plaintiff could perform light work is supported by substantial evidence,
and (3) whether the ALJ properly relied on the vocational expert's testimony. "[T]he
Second Circuit has not decided whether a district court must consider a legal argument
raised for the first time in an objection to a magistrate judge's report and
recommendation." Wells Fargo BankN.A. v. Sinnott, 2010 WL 297830, at *1 (D. Vt.
Jan. 19, 2010). This court has determined that it may exercise its discretion and consider
new legal arguments based upon the following factors:
1

Plaintiff later stated that he "was found disabled based on the new report and other prior
medical evidence contained in the record in this case." (Doc. 22 at 2.) He does not explain how
this determination relates to the pending case.

3

(1) the reason for the litigant's previous failure to raise the new legal
argument; (2) whether an intervening case or statute has changed the state
of the law; (3) whether the new issue is a pure issue of law for which no
additional fact-finding is required; (4) whether the resolution of the new
legal issue is not open to serious question; (5) whether efficiency and
fairness militate in favor or against consideration of the new argument; and
(6) whether manifest injustice will result if the new argument is not
considered.

!d. at *4; see also Amadasu v. Ngati, 2012 WL 3930386, at *6 (E.D.N.Y. Sept. 9, 2012)
(applying the same standard).
Although the Commissioner characterizes Plaintiff's failure to raise the new
arguments before the Magistrate Judge as a '"purely tactical' decision," (Doc. 30 at 2),
Plaintiff argues that paragraph fourteen of his Complaint2 was sufficient to provide notice
that Plaintiff sought to challenge the merits of ALJ Sutker' s decision and not just whether
new evidence should be presented. He contends that his motion for a sentence six
remand "did not mean that [he] had abandoned his claim that he was disabled anyway,
based on the evidence already in the record." (Doc. 31 at 2.) Additionally, "Plaintiffl:'s]
attorney had expected an initial separate ruling on the motion for remand." !d.
Accordingly, Plaintiff cites some evidence that he intended to present his new arguments
2

Paragraph Fourteen states:
The administrative law judge failed to consider the severity of the plaintiffs pain
and the soporific effects of his prescribed narcotic medication, even though they
were supported by the evidence. She again did not give the claimant's primary
treating physician's opinion that the claimant could not work controlling weight
and instead gave "great weight" to a reviewing physician who had not examined
that plaintiff and whose opinion was issued almost four years before the second
hearing and which was thus based on incomplete evidence. The ALJ also erred
by using the Medical-Vocational Guidelines for light work as a "framework" even
though she found that the plaintiff was limited to brief periods of standing,
defined as no more than 30 minutes at a time and brief periods of walking of no
more than a few minutes at a time and that any sedentary work would need to
allow him to extend his feet in a forward position. The light work definition used
by the Secretary states that a person must be able to stand or walk for most of a
day in order to be included in that definition. The plaintiffs evidence shows that
he is entitled to be found disabled within the meaning of 42 U.S.C. sections
423(a) and 1382(a)(3).

(Doc. 4 at 4-5,

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14.)
4

to the Magistrate Judge, but failed to do so based upon a misunderstanding of how the
Magistrate Judge would proceed. This Sinnott factor weighs in favor of consideration of
Plaintiffs new arguments.
An intervening statute or case has not altered the state of the law, and Plaintiffs
arguments do not raise novel issues of law or a new legal issue that is not open to serious
question. Plaintiffs new arguments also do not require additional fact findings. Instead,
consideration of Plaintiffs new arguments requires analysis only of the administrative
record, which the court must review in any event to determine whether a remand is
warranted. Efficiency and fairness thus weigh in favor of reviewing Plaintiffs new
arguments.
Conversely, a refusal to consider the merits of Plaintiffs new arguments would
deprive him of the opportunity to fully challenge the ALJ's decision. The Commissioner
has already responded to Plaintiffs new arguments and thus will suffer no prejudice if
this court considers Plaintiffs new arguments. This factor also weighs in favor of
consideration of Plaintiffs new arguments.
Finally, the court must evaluate if manifest injustice will result from a failure to
consider Plaintiffs new arguments. Courts in the Second Circuit "have a strong
preference for resolving disputes on the merits[.]" City ofNew York v. Mickalis Pawn

Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (internal quotation marks omitted).
Although it is not clear that it would be "manifestly unjust" to preclude Plaintiff from
raising his new arguments, in light of the minimal prejudice to the Commissioner, and
absence of undue delay, "efficiency and fairness militate in favor [of] ... consideration
of the new argument[s.]" Sinnott, 2010 WL 297830, at *4. The court therefore exercises
its discretion to consider them.

III.

Factual Background.
Plaintiff is a right-handed, fifty-three year-old male who alleges that he became

disabled as of June 1, 2006. He suffers from hallux rigidus, lateral epicondylitis in his
left elbow, carpal tunnel syndrome, and obesity. Plaintiff also alleges that he has
difficulty with reading, concentration and memory, depression, and hypersomnolence, the
5

latter of which is a side-effect of his opiate pain medication. He graduated from high
school and served in the Army National Guard. He has worked as a carpenter, a
construction worker, and a mechanic's assistant.

A.

Plaintiff's Medical Conditions.

1.

Arthritic Feet.

On November 7, 2006, Plaintiff consulted David Senese, P.A. with complaints of
foot pain and fatigue. Plaintiff had been laying tile, kneeling, and wearing steel toed
boots. He stated that he did not feel pain when he removed his boots and put on sneakers.
Mr. Senese advised Plaintiff to wear shoe inserts and cushioned socks, and to soak his
feet after taking off his boots. He recommended that Plaintiff take Ibuprofen. On
January 5, 2007, March 16, 2007, and April 5, 2007, Plaintiff again visited Mr. Senese
with similar complaints of foot pain. On March 30, 2007, Plaintiff saw Stewart
Manchester, M.D., who examined Plaintiffs feet and diagnosed him with "mid tarsal
joint arthritis." (AR 239.)
In March 2007, Plaintiff visited a podiatrist, David Groening, D.P.M., for an
evaluation of Plaintiffs pain in both feet. Dr. Groening's evaluation revealed bone
spurring and degenerative changes, which led to a diagnosis of hallux rigidus. 3 On May
2, 2007, Plaintiff saw Dr. Groening a second time, again complaining of foot pain and
stated that "he is unable to stand on his feet for any length of time." (AR 316.) On May
15, 2007, Dr. Groening performed surgery to remove some ofthe bone spurs on
Plaintiffs feet. On May 18, 2007, Plaintiff reported "that he has been doing well" and
"only gets some occasional pains in his foot." (AR 339.)
In November 2007, Plaintiff returned to Dr. Groening with complaints of foot
pain, described as follows: "[H]e continues to have pain although it is better than it was
before the [surgery]." (AR 340.) Dr. Groening diagnosed Plaintiffwith arthritis and
advised him that he would likely have chronic foot pain. Dr. Groening recommended

3

Hallux rigidus is "restricted mobility of the big toe due to stiffness of the metatarsophalangeal
joint especially when due to arthritic changes in the joint[.]" Hallux rigidus, MedlinePlus,
http://www.merriam-webster.com/medlineplus/hallux%20rigidus (last visited July 11, 2015).

6

that Plaintiff take anti-inflammatory pain medication and discussed the possibility of joint
fusion surgery, but Plaintiff did not wish to pursue that option.
In December 2007 and January 2008, Plaintiff sought treatment for his foot pain
from William Roberts, M.D., of the Northwestern Medical Center Pain Clinic. On
December 20, 2007, Plaintiff described "[h]is current pain score [as] 5/5 if he walks any
distance[.]" (AR 297.) Dr. Williams proposed giving Plaintiff a prescription for
Hydrocodone to manage his pain. Dr. Williams discussed job retraining with Plaintiff
and observed that Plaintiff desired to return to work as a carpenter, but understood that
was unlikely. On December 26, 2007, Dr. Roberts noted that Plaintiff "ambulates
without a limp and has no difficulty coming from the waiting room into the exam room."
(AR 285.) Nevertheless, Dr. Roberts prescribed PlaintiffHydrocodone to be taken four
times per day and Amitriptyline to be taken once per day.
After an initial trial period ofHydrocodone in December 2007, Dr. Roberts
renewed Plaintiffs prescription until December 2008, at which point he stopped
prescribing Hydrocodone to increase its efficacy in the future. In February 2009, Dr.
Roberts again prescribed Hydrocodone to Plaintiff. At a February 23, 2009 appointment,
Plaintiff reported "very little satisfaction" with Hydrocodone and evaluated "his pain at
8.5/10 to 9/10." (AR 496.) Dr. Roberts noted that Plaintiff"continues to be studying
welding and doing quite well with that." (AR 497.)
On March 19, 2009, Dr. Groening performed a second surgery on Plaintiffs feet
to remove bone spurs. On March 23, 2009, Plaintiff represented to Dr. Groening that "he
has not had undue pain." (AR 519.) On AprilS, 2009 and again on Apri127, 2009,
Plaintiff reported that "he has been doing better" and "that he is doing better than before
his surgery." (AR 520.) On May 20, 2009, Plaintiff confirmed that "[h]e is not having
pain like what he was having before" but "he is applying for disability because he always
does have some pain in his feet." (AR 521.) On October 29, 2009, Dr. Groening
observed "marked degenerative changes of the [metatarsophalangeal] joint with almost
complete obliteration of the joint space[.]" (AR 527 .)

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On February 1, 2010, during an administrative hearing before ALJ Sutker,
Plaintiff testified that he was "in constant pain in [his] feet" and experienced "pain
spikes" when he was on his feet. (AR 37.) Plaintiff further testified he was unable to do
chores around the house and had limited ability to drive motor vehicles. Plaintiffs wife
testified he could occasionally load laundry into the washing machine.
On June 5, 2012, after the initial remand, ALJ Sutker held a second administrative
hearing. At that hearing, Plaintiff testified that the condition of his feet had gotten worse
since the first hearing and that he did not "do anything around the house anymore, and
[his] feet are really bothering [him] real bad. Just getting up, walking to the bathroom
can be a chore." (AR 622.) Plaintiff further testified that he is no longer able to make
himself a simple meal and attempts "to stay off [of his feet]" and to "elevat[e] them[.]"
(AR 623.)

2.

Lateral Epicondylitis and Carpal Tunnel.

In the spring of2007, Plaintiff observed a dull ache around his left thumb. On
November 15, 2007, Plaintiff visited Dr. Manchester to report numbness in his left hand.
Dr. Manchester diagnosed Plaintiff with ulnar neuropathy in his left hand and
recommended changes in his diet and exercise. On January 4, 2008, Plaintiff began a
course of physical therapy for his left hand with Leanne Blanchard, M.S., P.T., who
determined that Plaintiff suffered from tendonitis.
After a three week course of physical therapy, Plaintiff sought medical attention
from Steven Landfish, D.O. On February 21, 2008, Dr. Landfish diagnosed Plaintiff with
left lateral epicondylitis, commonly referred to as "tennis elbow." Dr. Landfish's
examination revealed that Plaintiff had a full range of motion and strength. Dr. Landfish
gave Plaintiff an injection ofMarcaine and Depo-Medrol and advised him to avoid
repetitive motions and heavy lifting for three weeks. Plaintiff reported that the injection
did not improve his symptoms, and that he continued to have pain in his thumb and wrist.
Dr. Landfish's examination revealed that Plaintiff had a good range of motion in his
thumb. He ordered an MRI, which showed "[c]hanges consistent with lateral
epicondylitis and tendinous injury." (AR 360.)
8

On March 19, 2008, Andres Roomet, M.D., a neurologist, conducted an
electrophysiological evaluation of Plaintiff. Dr. Roomet observed that Plaintiff had
"exquisite lateral epicondylar tenderness." (AR 356.) He concluded that Plaintiff has
"lateral epicondylitis without significant impairment or abnormality of the left radial
nerve[,]" "[ m]ild bilateral carpal tunnel syndrome[,]" and "no left ulnar nerve
abnormality[.]" (AR 358.)
On April28, 2008, Plaintiff saw Philip Trabulsy, M.D., of Fletcher Allen
Orthopedics and Rehabilitation Services, for a consultation regarding his left hand and
elbow. Dr. Trabulsy determined that Plaintiff has "5/5 muscle strength in all muscle
groups of both upper extremities[,]" (AR 383), and the "[l]eft elbow range of motion was
complete." (AR 384.) "He had tenderness of the left lateral epicondyle to palpation" but
"no tenderness over the medial epicondyle of the left elbow." !d. Because conservative
treatments undertaken thus far had not resolved Plaintiffs complaints, Dr. Trabulsy
recommended a surgical consultation.
On June 26, 2008, Plaintiff visited surgeon Michel Benoit, M.D. Dr. Benoit
observed that Plaintiff "was in no acute distress[,]" "had full range of motion of his
elbow, wrist and hand[,]" and "had exquisite tenderness right over his lateral left
epicondyle." (AR 421.) Dr. Benoit advised Plaintiffto have surgery for lateral
epicondylitis, but advised against surgery for Plaintiffs carpal tunnel. On July 1, 2008,
Dr. Benoit performed surgery consistent with his recommendations. Two weeks later,
Dr. Benoit reported that Plaintiff was "doing fairly well" and that the swelling and
discomfort Plaintiff was experiencing were expected. (AR 420.) On August 21, 2008,
Dr. Benoit found that "the patient is in no apparent distress" and had a "full range of
motion about his elbow[.]" (AR 418.) However, Plaintiff "report[ed] having continued
left lateral elbow pain." !d.
At the February 1, 2010 hearing before ALJ Sutker, Plaintiff testified that he
continued to have trouble with his left elbow, even when he did not use it. Plaintiff stated
that he did not "really think" that the surgery relieved his symptoms. (AR 413.) At the

9

June 5, 20 12 hearing, Plaintiff testified that his left elbow was still sore and hurt him
"about the same" amount as it did during the first hearing. (AR 627.)

3.

Obesity.

On March 22, 2007, Plaintiff saw Leslie Gardzina, a registered dietitian, for advice
on weight loss. Ms. Gardzina recorded Plaintiffs height as 74 inches and weight as
264.5 pounds, resulting in a Body Mass Index ("BMI") of34. 4

4.

Vocational Retraining, Cognitive Limitations, and
Hypersomnolence.

In early 2009, Plaintiff attempted to complete vocational retraining courses. He
took a welding course and a typing course. However, he stated that he had difficulty
using a computer and only learned to type through "K" or "L" on the keyboard at a rate
of fourteen words per minute. Plaintiff advised that he completed the computer training
course, but noted that the completion requirements were minimal. He stated that he "was
pretty uncomfortable" during the classes and "normally paid for" walking around in class
the next day. (AR 717.)
On October 30, 2008, Dr. Roberts noted that Plaintiffs studies were "going well
for him[,]" "he is enjoying his learning experiences[,]" and Dr. Roberts was hopeful that
Plaintiff could find employment welding specialty metals. (AR 500.) On February 23,
2009, Dr. Roberts indicated that Plaintiff "has had no difficulty with his academics[.]"
(AR 497.)
At the February 1, 20 10 hearing, Plaintiff testified that he has limited reading
abilities. Although he enjoyed reading the sports section of the newspaper, he explained
that he had trouble with "the big words and stuff." (AR 715.) He testified that he is "not
very fast [at reading] and ... not very good at spelling." !d. At the June 5, 2012 hearing,
Plaintiff testified that he read the sports section less frequently. He would check to see if
a particular team won or lost, but would not "sit there and read like the paragraphs[.]"

4

The National Institutes of Health states that obesity occurs at a BMI exceeding 30.0. See How
Are Overweight and Obesity Diagnosed?, National Heart, Lung, and Blood Institute,
http://www.nhlbi.nih.gov/healthlhealth-topics/topics/obe/diagnosis (last visited July 11, 2015).

10

(AR 630.) According to Plaintiff, he had difficulty graduating from high school and
participated in special education courses.
Plaintiff also testified that he spends much of the day sleeping because of the sideeffects ofHydrocodone. In the February 1, 2010 hearing, he described his day as getting
up, helping his children prepare for school, eating cereal, taking the Hydrocodone, going
to sleep for a couple of hours, using the bathroom, sitting in his recliner, and then
repeating the process. At the June 5, 2012 hearing, Plaintiff stated that he slept "[a] good
chunk" of the day but had difficulty sleeping through the night. (AR 626.) Plaintiffs
wife testified that the medication made Plaintiff"very, very tired." (AR 645.) She
further testified that their children would awaken Plaintiff, but he would fall asleep ten
minutes later.

5.

Depression.

On May 25, 2010, Plaintiff met with Dr. Manchester to discuss "loss of interest,
depressed mood, fatigue, poor concentration, poor sleep, and irritability." (AR 866.) Dr.
Manchester diagnosed Plaintiff with depression and prescribed Sertraline HCL 50mg.
On August 16,2010, Dr. Manchester increased Plaintiffs dosage ofSertraline HCL to
100mg. On April 12, 2011, Dr. Manchester noted Plaintiff had "worsening symptoms of
a depressive disorder." (AR 871.) On October 19, 2011, Dr. Manchester described
Plaintiffs condition as "stable depressed mood[.]" (AR 874.)
At the June 5, 2012 hearing, Plaintiff explained that he took the Sertraline because
he is "real tired of being in this situation" and the medication helped with his depression
"[m]ost of the time." (AR 641.) Plaintiffs wife described him as "so tired and
depressed." (AR 644.)

C.

Medical Opinions and Functional Assessments.

In April2008, Cynthia Short, M.D., a non-examining agency physician, conducted
a functional capacity assessment of Plaintiff. She determined that Plaintiff could
occasionally lift up to twenty pounds and frequently lift up to ten pounds. According to
Dr. Short, Plaintiff is capable of standing or walking for up to two hours per day and may
sit for up to eight hours per day. Plaintiff may climb stairs and ladders occasionally,
11

balance frequently, stoop frequently, kneel frequently, crouch occasionally, and crawl
occasionally. Dr. Short placed limitations on Plaintiffs handling abilities, including
limiting grasping and twisting with his left arm. Dr. Short found Plaintiffs description of
his foot pain and arthritis credible. On October 22, 2008, Geoffrey Knisely, M.D.,
reviewed the file and affirmed Dr. Short's assessment as written.
On January 29, 2010, Jeffrey Fine, P.A., who worked in Dr. Manchester's office,
completed a "social security disability evaluation" of Plaintiff. (AR 859.) Mr. Fine
recorded Plaintiffs Mini Mental Status Examination score as thirty out of thirty. 5 He
found that Plaintiff had difficulty walking due to his joint pain. When discussing
potential psychiatric disorders, Mr. Fine wrote that Plaintiff"is currently
asymptomatic[,]" id., and found that Plaintiffs description of his cognitive impairments
from the Hydrocodone were consistent with that medication's side effects. He also noted
that Plaintiff had not completed any skills retraining, which would limit Plaintiffs
employment options.
On the same date, Dr. Manchester assessed Plaintiffs ability to perform workrelated activities and produced a written "Addendum to Medical Source Statement of
Ability to Do Work-Related Activities[.]" (AR 545.) Dr. Manchester concluded that
Plaintiff is not able to perform full time work because he has difficulty with sitting and
5

Thirty out of thirty represents a perfect score on the Mini Mental Status Examination, which is
described as follows:
The [Mini Mental Status Examination] is a 30-point cognitive test used to
evaluate an adult's cognitive mental status. It takes ten minutes to administer;
results can be used to screen for cognitive impairment, to estimate the severity of
cognitive impairment at a given point in time, to follow the course of cognitive
changes in an individual over time, and to document an individual's response to
treatment. The client's score is adjusted for age and educational status, and places
the individual on a scale of cognitive function. . . . Despite its relative limitations
compared to some of the more extensive assessment instruments used by medical
professionals to diagnose various mental disorders, the [Mini Mental Status
Examination] is a useful tool for making a threshold, informal assessment of a
client's cognitive functioning on discrete occasions. If the results indicate the
client may be, at least at the time of taking the test, cognitively impaired, a more
extensive evaluation will likely be necessary.
3 A. Kimberley Dayton, et al., Advising the Elderly Client§ 32:17 (2015) (footnotes omitted).

12

standing for long periods of time and suffers from hypersomnolence. Dr. Manchester
opined that Plaintiff is only able to sit for five minutes at a time without changing
position and may only sit for a total of four hours. He also indicated that Plaintiff cannot
carry any weight, cannot push or pull with his hands, cannot climb, kneel or crouch,
cannot be near moving mechanical parts, and cannot operate a motor vehicle.
On May 20, 2012, Dr. Manchester completed a second medical source statement
regarding Plaintiffs ability to perform work-related activities, in which he opined that
Plaintiff is not capable ofworking on a full time basis. Dr. Manchester added that
Plaintiff experiences "poor focus and concentration[.]" (AR 848.) Dr. Manchester
concluded that Plaintiff is not capable of lifting or carrying amounts up to ten pounds;
may only sit for five minutes at a time without interruption; cannot walk or stand; is
limited to sitting for a total of four hours per day; must have his feet elevated; should not
use either of his hands to push or pull and should not use either foot to operate foot
controls; cannot climb stairs or ladders; cannot balance, stoop, kneel, crouch, or crawl;
cannot tolerate heights, moving mechanical parts, humidity, dust, cold, heat, or
vibrations; and, cannot operate a motor vehicle.

D.

The ALJ's Application of the Five-Step Sequential Evaluation Process.

In the June 15, 2012 decision, ALJ Sutker followed the five-step process 6 and
determined that Plaintiff has not engaged in substantial gainful activity since June 1, 2006
and has severe impairments of hallux rigidus, epicondylitis, carpal tunnel syndrome,
depression, and obesity. At step three, the ALJ determined that none of Plaintiffs severe
6

The Social Security Administration regulations outline the five-step, sequential
evaluation process used to determine whether a claimant is disabled: (1) whether
the claimant is currently engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified impairments in the
Listing of Impairments; (4) based on a "residual functional capacity" assessment,
whether the claimant can perform any of his or her past relevant work despite the
impairment; and (5) whether there are significant numbers of jobs in the national
economy that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.

Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

13

impairments were equivalent to the listed impairments. She found that Plaintiffs
depression and cognitive impairments constituted only mild limitations and that he is able
to engage in educational classes. At step four, the ALJ evaluated Plaintiffs RFC and
determined that he is capable of performing light work, as defined in 20 C.F .R.

§ 404.1567(b). She imposed limitations that: Plaintiff work in an environment that
allows him to stretch his legs; Plaintiff should limit standing to no more than thirty
minutes at one time; Plaintiff should have only brief periods of walking; Plaintiff should
avoid crawling, climbing, unprotected heights, moving machinery, and driving. She
further found Plaintiff may occasionally use forceful grasping, but must avoid twisting
with his left upper extremity. She determined that Plaintiff may perform uncomplicated
tasks, which can be learned in thirty days or less.
In the final step, the ALJ relied on the testimony of a vocational expert, who
answered hypotheticals based on assumptions provided by the ALJ. The vocational
expert testified that a person with Plaintiffs abilities and limitations could be: a cashier,
with 3.5 million jobs nationally and 22,600 jobs in New Hampshire; 7 a parking lot
attendant, with 125,000 jobs nationally and 300 jobs in New Hampshire; a security guard,
with 1 million jobs nationally and 2,300 jobs in New Hampshire; a surveillance system
monitor, with 999,000 jobs nationally and 340 jobs in New Hampshire; and, a food order
clerk, with 276,000 jobs nationally and 280 jobs in New Hampshire. Finding that there
are significant numbers of jobs in the national economy that Plaintiff can perform given
his RFC, age, education, and work experience, the ALJ determined that Plaintiff was not
disabled and not entitled to benefits.

IV.

Conclusions of Law and Analysis.
A.

Standard of Review.

A "Magistrate Judge's Report-Recommendation [is] subject to de novo review as
to those issues upon which the parties raised objections." Hynes v. Squillace, 143 F.3d
653, 656 (2d Cir. 1998). The district judge may "accept, reject, or modify, in whole or in
7

Both the ALJ and the vocational expert testified from Manchester, New Hampshire. Plaintiff
and his counsel appeared by teleconference from Burlington, Vermont.

14

part, the findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(l). A district court is not required to "review ... a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).
In an appeal from the Commissioner's decision, the court "review[ s] ... the
administrative record to determine if there is substantial evidence, considering the record
as a whole, to support the Commissioner's decision and if the correct legal standards
have been applied." Brault v. Soc. Sec. Admin., Com 'r, 683 F.3d 443, 447 (2d Cir. 2012)
(internal quotation marks omitted).
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. But it is still a very deferential standard of review--even more
so than the clearly erroneous standard. The substantial evidence standard
means once an ALJ finds facts, [the court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.

!d. at 44 7-48 (citations and internal quotation marks omitted).
Although factual findings by the Commissioner are binding when
supported by substantial evidence, [w ]here an error of law has been made
that might have affected the disposition of the case, this court cannot fulfill
its statutory and constitutional duty to review the decision of the
administrative agency by simply deferring to the factual findings of the
ALJ. Failure to apply the correct legal standards is grounds for reversal.

Pollardv. Halter, 377 F.3d 183, 188-89 (2d Cir. 2004) (internal quotation marks
omitted).

B.

Plaintifrs New Arguments Challenging the ALJ's Decision.

Plaintiff asserts that he is entitled to a reversal of the Commissioner's decision
under sentence four of 42 U.S.C. § 405(g). "Under sentence four, a district court may
remand in conjunction with a judgment affirming, modifying, or reversing the Secretary's
decision." Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991) (analyzing 42 U.S.C.
§ 405(g)).
Plaintiff bears the burden of establishing that he is disabled within the meaning of
the Social Security Act. See 42 U.S.C. § 423(a)(l)(A); see also id. § 423(d)(l)(A)
15

(defining "disability" as the "inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months"). The burden applies to "steps one through four ofthe
sequential five-step framework established in the [Social Security Administration]
regulations." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (internal quotation
marks omitted); see also 20 C.F.R. §§ 404.1520(a)(4) (listing five steps); 416.920(a)(4)
(same). "[W]hile it is true that the Commissioner bears the burden at step five, the ALJ,
unlike a judge in a trial, must [her]self affirmatively develop the record in light of the
essentially non-adversarial nature of a benefits proceeding." Butts v. Barnhart, 388 F.3d
3 77, 3 86 (2d Cir. 2004 ), as amended on reh 'g in part, 416 F .3d 10 1 (2d Cir. 200 5)
(internal quotation marks omitted).

1.

Whether the ALJ Followed the Treating Physician Rule.

Plaintiff contends that the ALJ violated the "treating physician rule" by not giving
sufficient weight to Dr. Manchester's opinions. The "treating physician rule" requires the
ALJ to:
give more weight to opinions from [a plaintiffs] treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of [a plaintiffs] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations.
20 C.F.R. § 404.1527(c)(2). The "treating physician rule," however, is not absolute:
Although the treating physician rule generally requires deference to the
medical opinion of a claimant's treating physician ... the opinion of the
treating physician is not afforded controlling weight where ... the treating
physician issued opinions that are not consistent with other substantial
evidence in the record, such as the opinions of other medical experts.

Halloran, 362 F .3d at 32.
In this case, the ALJ assigned proper weight to Dr. Manchester's opinion and did
not violate the "treating physician rule," because there was substantial evidence in the
16

record that contradicted his opinion. For example, the ALJ assigned "little weight" to Dr.
Manchester's opinion that Plaintiff could not stand or walk for any length of time
"because it is not well supported by the evidence of record, particularly Dr. Manchester's
own treatment notes." (AR 584.) Mr. Fine, a P.A. in Dr. Manchester's practice, noted
that Plaintiff "is able to tandem walk, walk on his heels, walk on his toes, perform
shallow knee bend, without difficulty." (AR 454.) Dr. Roberts, who treated Plaintiff for
his pain, observed that Plaintiff "ambulates without a limp and had no difficulty coming
from the waiting room into the exam room." (AR 285.) Dr. Roberts later indicated that
Plaintiff was "able to heel walk and toe walk without difficulty." (AR 500.) Dr.
Groening, the podiatrist who removed some of Plaintiffs bone spurs, noted that Plaintiff
"does have discomfort and difficulty standing or walking for prolonged periods of
time[,]" but he did not conclude Plaintiff could not stand or walk for any length of time.
(AR 334.) Accordingly, the ALJ properly concluded that substantial evidence
contradicted Dr. Manchester's opinion regarding Plaintiffs ability to stand or walk.
The ALJ also assigned "little weight" to Dr. Manchester's opinion that Plaintiff
could not lift or carry any weight because Dr. Manchester relied on a single examination
of Plaintiffs feet and ankles. Plaintiff argues that the ALJ failed to consider Dr.
Manchester's access to the medical records of other treating physicians. Those medical
records, however, do not indicate that Plaintiff could not lift or carry any weight. To the
contrary, Dr. Landfish, an orthopedist, concluded that Plaintiff had "full range of motion
and strength[,]" (AR 351), and Dr. Trabulsy, another orthopedist, observed that Plaintiff
had "5/5 muscle strength in all muscle groups of both upper extremities." (AR 383.) Dr.
Roomet, who conducted a neurological exam of Plaintiffs left arm, recorded that "[t]here
is no radial distribution weakness. There is no actual sensory loss atrophy or motor
abnormality." (AR 356.) Moreover, at the February 1, 2010 hearing, Plaintiff testified
that he did laundry and that he took a welding course, both of which require some lifting.
The ALJ therefore properly accorded little weight to Dr. Manchester's opinion that
Plaintiff had no ability to carry or lift weight.

17

Plaintiff contends that the ALJ further erred by not affording sufficient weight to
Plaintiffs mental impairments. The ALJ gave "little weight" to Dr. Manchester's
opinion that Plaintiff had moderate restrictions on interacting with others and had poor
focus, coping skills, and concentration. (AR 584.) This was consistent with notes of
other medical personnel, including Dr. Roberts's observations that Plaintiff"has had no
difficulty with his academics[,]" (AR 497), Plaintiffs studies were "going well for
him[,]" (AR 500), and Plaintiff"is enjoying his learning experiences[.]" !d. Mr. Fine
determined that Plaintiff scored a perfect thirty out of thirty on the Mini Mental Status
Examination, although he observed that Plaintiff could have cognitive impairments as a
side effect of taking Hydrocodone. Accordingly, although Dr. Manchester concluded that
Plaintiffs mental impairments would make it difficult for him to perform in a work
environment, this observation was not supported by substantial evidence in the record
and conflicted with other evidence from Dr. Manchester's office.
Finally, Plaintiff contends the ALJ erred by not properly considering the
limitations imposed by Plaintiffs depression and the increase in dosage of his Sertraline
prescription between May 2010 and August 2010. However, the ALJ found that Plaintiff
was depressed and taking medication for depression. She also noted that Plaintiffs
depression justified a determination that Plaintiff could only perform uncomplicated
tasks. At the June 5, 2012 hearing, Plaintiff acknowledged that the Sertraline reduced his
depression "[m]ost of the time." (AR 641.) Moreover, the lack of evidence that
Plaintiffs depression began prior to 2010 supported a conclusion that Plaintiff was not
disabled as of June 1, 2006. There is thus substantial evidence to support the ALJ's
conclusion that Plaintiffs depression was "no more than a mild limitation." (AR 576.)

2.

Whether the ALJ Properly Determined Plaintifrs RFC.

Plaintiff makes two challenges to the ALJ's determination of his RFC. First, he
argues the ALJ incorrectly determined that he is capable of standing for up to thirty
minutes at a time and lifting up to twenty pounds. Second, accepting the limitations
imposed by the ALJ, he contends that the ALJ should have determined that he can only
perform sedentary work.
18

The ALJ considered Dr. Groening's opinions, which included a note that Plaintiff
had "discomfort and difficulty standing or walking for prolonged periods." (AR 334.)
She also accorded some weight to the opinions of Dr. Short and Dr. Knisely that Plaintiff
may stand for two hours per day. She observed that the assessments of Dr. Short and Dr.
Knisely were supported by the evidence in the record at the time, but that more recent
evidence showed that Plaintiff had a greater degree of impairment. Dr. Short and Dr.
Knisely proposed limitations that were less restrictive than those found by the ALJ
because they found Plaintiff is capable of walking or standing for up to two hours per
day, instead of thirty minutes at a time. Considering the opinions of Dr. Short and Dr.
Knisely, as well as other opinion evidence in the record regarding Plaintiffs ability to
walk and stand, the ALJ properly determined that Plaintiff was capable of standing for no
more than thirty minutes at a time. See Brault, 683 F.3d at 448 (noting the ALJ is
entitled to a deferential standard of review if there is substantial evidence to support a
decision).
Plaintiff also challenges the ALJ's conclusion that as of June 15, 2012, he was
capable of lifting twenty pounds occasionally and ten pounds frequently in light of the
condition of his left arm. The ALJ relied on the medical records that Plaintiff had a full
range of motion and strength with his left arm after his surgery. Additionally, although
Plaintiff experienced pain after his arm surgery, Dr. Benoit did not prohibit Plaintiff from
lifting. The ALJ also properly considered Dr. Short's assessment, and subsequent
medical records that revealed that Plaintiff had some ability to lift. Based on this
evidence, the ALJ properly found that Plaintiff could occasionally lift twenty pounds and
frequently lift ten pounds.
Assuming arguendo that the ALJ correctly described his limitations, Plaintiff
nonetheless contends that the ALJ improperly found him capable of performing light
work with restrictions rather than sedentary work. "Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds" and "requires a good deal ofwalking or standing[.]" 20 C.F.R. § 404.1567(b).
In contrast, "[ s]edentary work involves lifting no more than 10 pounds at a time" and "a
19

certain amount ofwalking and standing is often necessary in carrying out job duties." !d.
§ 404.1567(a).
A person may be capable of performing light work, subject to certain restrictions,
even if the person is not capable of performing the full range of light work. See, e.g.,

Queen v. Astrue, 2012 WL 1016822, at *4 (D. Md. Mar. 23, 2012) ("The fact that the
ALJ found [the claimaint] capable of performing less than a full range of light work in no
way eliminates every occupation listed ... at the light exertionallevel."); Smith v.

Chater, 962 F. Supp. 980, 983 (N.D. Tex. 1997) ("Although [the plaintiffs] limitations
precluded the ALJ from assuming that he could perform the full range of light jobs, they
did not prevent the ALJ from finding that significant light jobs were still available to
him.").
As there was substantial evidence in the record for the ALJ's conclusion that
Plaintiff could stand for up to thirty minutes, walk a few minutes at a time, and lift up to
twenty pounds, the ALJ properly found that Plaintiff could perform a limited range of
light work. The ALJ relied on the testimony of a vocational expert in making this
determination. Where, as here, a claimant's abilities are in between two work categories,
the ALJ may rely on the assistance of a vocational expert to determine whether that
claimant could find work. See SSR 83-12, 1983 WL 31253, *3 (Jan. 1, 1983) ("In
situations where the rules would direct different conclusions, and the individual's
exertionallimitations are somewhere 'in the middle' in terms ofthe regulatory criteria for
exertional ranges of work, more difficult judgments are involved as to the sufficiency of
the remaining occupational base to support a conclusion as to disability. Accordingly,
[vocational expert] assistance is advisable for these types of cases."). In this case, in light
of the medical evidence in the record and the vocational expert's testimony, substantial
evidence supported the ALJ's determination that Plaintiff could perform light work. See

Bryson v. Astrue, 2013 WL 1797642, at *4 (N.D. Cal. Apr. 29, 2013) (affirming the
Commissioner's decision where the ALJ found the "Plaintiffs RFC fell between light
work and sedentary work" because he was capable of meeting the lifting requirements
but not the walking or standing requirements).
20

Plaintiff further contends that the ALJ erred by not finding him disabled because
he was closely approaching advanced age and he had only a high school education, which
further limited his ability to perform work. A person "closely approaching advanced
age" is between fifty and fifty-four years old. 20 C.P.R. § 404.1563(d) ("Ifyou are
closely approaching advanced age (age 50-54), we will consider that your age along with
a severe impairment(s) and limited work experience may seriously affect your ability to
adjust to other work."). The Commissioner "will not apply the age categories
mechanically in a borderline situation" and may consider a person in an older category if
they are within a few months of reaching that category. !d. § 404.1563(b).
According to Table 1, 20 C.F .R. § 404, Appendix 2, a person who is only capable
of performing sedentary work, is closely approaching advanced age, has a high school
education that "does not provide for direct entry into skilled work[,]" and has only
performed unskilled or non-transferrable skilled work is disabled. Under Table 2, the
same person who is capable of performing light work is not disabled.
Plaintiff was forty-five years old when he originally applied for disability benefits,
forty-eight years old during the first hearing, and fifty years old during the second
hearing. As the ALJ properly determined that Plaintiff was capable of performing light
work, even if Plaintiff was treated as closely approaching advanced age at the time of the
second hearing, this alone, would be insufficient to support a conclusion that he was
disabled in light of substantial countervailing evidence in the record.

3.

Evidence that There Are a Significant Number of Jobs that
Plaintiff Can Perform.

Plaintiff also challenges the ALJ's use of the vocational expert's testimony in her
determination that there are a significant number of jobs that he can perform. He argues
that the ALJ used improper hypotheticals and he is not capable of performing the jobs
identified by the ALJ.
"At Step Five, the Commissioner must determine that significant numbers of jobs
exist in the national economy that the claimant can perform." Mcintyre, 758 F.3d at 151.
To make this determination, the ALJ may rely on "a vocational expert's testimony
21

regarding a hypothetical as long as there is substantial record evidence to support the
assumption[ s] upon which the vocational expert based his opinion and accurately reflect
the limitations and capabilities of the claimant involved[.]" !d. (citation and internal
quotation marks omitted).
Here, the ALJ asked a vocational expert several hypotheticals to determine if there
were jobs available that Plaintiff could perform in the national economy. The ALJ asked
the vocational expert to assume, among other things, that an individual is able to stand for
thirty minutes at a time, walk for a few minutes at a time, lift twenty pounds occasionally
and ten pounds frequently, and had restrictions on driving and using his left hand. The
vocational expert testified that a person with those limitations would not be able to
perform Plaintiffs prior employment positions. However, he opined that the individual
could be a cashier, with 3.5 million jobs nationally and 22,600 jobs locally; a security
guard, with 1 million jobs nationally and 230 jobs locally; a surveillance system monitor,
with 990,000 jobs nationally and 340 jobs locally; a food order clerk, with 276,000 jobs
nationally and 280 jobs locally; or, a parking lot attendant, with 125,000 jobs nationally
and 300 jobs locally. He further opined that there would be no jobs for this individual if
he had cognitive limitations that made him twenty percent less productive than the norm.
Plaintiff challenges the assumptions of the hypotheticals because he contends that
he is unable to stand for up to thirty minutes at a time and that he has poor coping and
concentration skills. Similarly, he argues that the ALJ failed to accept the vocational
expert's testimony related to his depression and his ability to focus, concentrate, and
remember instructions. Because substantial evidence in the record supported the ALJ's
conclusion that Plaintiff has the ability to stand for thirty minutes and that his cognitive
impairment did not prevent him from working, the hypotheticals were properly framed
and relied on by the ALJ to conclude that there were a significant number of jobs that
Plaintiff could perform.
Plaintiff nonetheless asserts that he is unable to perform the jobs described by the
vocational expert as he cannot work as a security guard because he is not capable of
walking and standing as the job requires. The vocational expert testified that there are
22

230 jobs locally as a security guard that do not involve walking or standing beyond the
thirty minutes in the hypothetical. 8 Plaintiff contends that he could not be a parking lot
attendant because he is unable to drive or service vehicles. The hypothetical assumed
these limitations and the vocational expert testified that he was "thinking more of the
person that's in the booth that just collects money." (AR 651.) Plaintiff argues that he
cannot be a cashier because the vocational expert did not specify that the available
positions would be seated, but the vocational expert classified this position as sedentary
and described it as a position that a person with Plaintiffs limitations could perform.
Plaintiff asserts that he cannot perform any of these jobs because of his cognitive
impairments. Substantial evidence in the record, however, contravenes Plaintiffs
argument that he has cognitive impairments that would prevent him from working.
As the ALJ properly relied on the testimony by the vocational expert to establish
the number of jobs in the national and local economy that Plaintiff could perform, the
only remaining issue is whether these numbers are significant. See 42 U.S.C.

§ 423(d)(2)(A). The vocational expert identified five types of jobs, each with hundreds
of thousands of positions nationally and hundreds or thousands of jobs in the local
economy that could be performed with Plaintiffs limitations. Courts have held that this
number is sufficient. See, e.g., Bull v. Comm 'r ofSoc. Sec., 2009 WL 799966, at *6
(N.D.N.Y. Mar. 25, 2009) (noting that "the vocational expert's testimony stating that
there were approximately 100,000 jobs of this nature in the national economy and 125
locally constitutes a significant number"); see also Gurule v. Astrue, 2012 WL 1609691,
at *4 (D. Vt. May 8, 2012) (collecting cases). Because the Commissioner sustained her
burden of establishing that there are a significant number of jobs available in the national
and local economy that Plaintiff could perform, she satisfied her burden at step five. 9

8

The ALJ's decision states there are 2,300 local jobs as a security guard. The vocational expert
testified that there are 2,300 local jobs as a security guard, but only ten percent of those can be
performed with Plaintiffs limitations.
9

Plaintiff also argues that the ALJ erroneously indicated that his date of last insured was
December 31,2010 instead ofDecember 31,2011. Although the ALJ made this error in the June

23

V.

Plaintiff's New Evidence.
A.

Plaintiff's New Evidence: Evaluations Conducted after the June
5, 2012 Hearing.

On December 28, 2013, Dr. Gluck conducted a physical evaluation of Plaintiff.
At the time, Plaintiff was 73 inches tall and weighed 279 pounds. Dr. Gluck noted that
Plaintiff"seems depressed and somewhat moribund with poor memory." (Doc. 16-1 at
2.) The examination revealed that Plaintiff had "degenerative changes of his second
metatarsal phalangeal joints and mid-foot" and complained of considerable pain. !d.
However, Plaintiffs tandem walking, bending, and squatting were normal. Dr. Gluck
scored Plaintiffs left hand strength at three out of five, his right hand grip as normal, and
his motor control of his fingers and hands as normal. Plaintiff performed normally on
carpal tunnel tests as well as thumb movement tests.
As proposed limitations, Dr. Gluck recommended that Plaintiff limit himself to
four hours of standing per day with walking limited to a few minutes at a time. Dr. Gluck
indicated that Plaintiff can lift fifty pounds occasionally and twenty-five pounds
frequently with his right arm, and he can lift twenty pounds occasionally and ten pounds
frequently with his left arm. Dr. Gluck did not place limitations on Plaintiffs postural
activities, manipulative activities, or "[w]orkplace environmental activities[.]" !d. at 6.
On December 24, 2013, Dr. Williams, a clinical and forensic psychologist,
conducted a psychological evaluation of Plaintiff. Dr. Williams described Plaintiffs
15,2012 decision, she also stated at the June 5, 2012 hearing that Plaintiffs date oflast insured
was December 31, 2011. See AR 616 ("I am showing ... your date of last insured [as]
December 31, 2011[.]"). She referred to Plaintiffs date oflast insured as December 31,2010 in
the February 1, 2010 hearing and Plaintiffs counsel did not correct her when asked. The record
indicates December 31, 2011 as Plaintiffs date oflast insured. See AR 154 ("DIS DLI: 12/11 ");
AR 811 ("DLI 12/11 "). Any error regarding Plaintiffs date of last insured was thus inadvertent
and harmless as it does not impact the ALJ's ultimate conclusion. See Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008) ("[T]he court will not reverse an ALJ's decision for harmless
error, which exists when it is clear from the record that the ALJ's error was inconsequential to
the ultimate nondisability determination.") (internal quotation marks omitted); Hendricks v.
Barnhart, 154 F. App'x 529,531 (7th Cir. 2005) (finding "the doctrine ofharmless error spares
us from remanding this case for what would at most be an inconsequential error" for an
assessment ofthe date of last insured where "[t]he ALJ ... properly found [the plaintiff] not
disabled").

24

"behaviors and mannerisms" as "consistent with what would be expected from age
related peers who are depressed." (Doc. 16 at 3.) According to Dr. Williams, Plaintiff
"was not easily distracted and ... he did not present with obvious impulsive personality
traits. Having said this, [Plaintiff] did report that he tends to be impulsive in his
behaviors and decision making." !d. at 4. He described Plaintiffs "thoughts [as]
rationally based and reasonably well organized. He did not present with any tangential or
circumstantial thought processes." !d.
Dr. Williams described Plaintiffs intellectual abilities as "low average" and his
"immediate, midrange and long-term memory abilities were intact." !d. Dr. Williams
concluded that Plaintiff suffers from "major depressive disorder as well as alcohol
dependence." !d. at 5. He further found that Plaintiff"presents with the necessary
intellectual and mathematical abilities as coping skills to manage his financial affairs
responsibly at the current time." !d. at 6. Dr. Williams did not evaluate whether
Plaintiffs physical complaints would impair his ability to work, but instead
recommended that a medical doctor conduct such an evaluation.
Finally, on January 2, 2014, Dr. Shapiro, conducted a psychological and functional
assessment of Plaintiff. Dr. Shapiro found that Plaintiff"makes [a] credible c'ase for
ongoing depressive symptoms limiting social skills, and likely sustainability as well."
(Doc. 16-2 at 10.) Additionally, "[l]ongitudinal review suggests intact cognitive skills in
the low average range [and] he likely has reading and math limitations." !d. Dr. Shapiro
opined that Plaintiff could lift twenty pounds occasionally and ten pounds frequently,
stand or walk for up to three hours per day, and sit for about six hours per day. Dr.
Shapiro advised that Plaintiff can also occasionally climb stairs and ladders, occasionally
kneel, occasionally crawl, and has no restrictions on balancing and stooping. Dr. Shapiro
placed restrictions on Plaintiffs use of his left hand.
Dr. Shapiro found that Plaintiffs ability to remember locations and work
procedures as well as understand simple instructions was not significantly limited,
although Plaintiff had limited ability to remember detailed instructions, could only
complete one to three step tasks, and had difficulty concentrating. Dr. Shapiro further
25

opined that Plaintiff could be distracted by the presence of others and may not respond
appropriately to instruction or criticism from supervisors. Dr. Shapiro concluded that
Plaintiff"retains the adaptive skills to deal with routine changes and safety concerns."
!d. at 16. Dr. Shapiro recommended that Plaintiff be limited to sedentary work.

B.

Whether Plaintiff is Entitled to a Remand for Consideration of
New Evidence.

Plaintiff seeks a remand under sentence six of 42 U.S.C. § 405(g) for
consideration of new evidence. "The court may ... any time order additional
evidence ... , but only upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record in a
prior proceeding[.]" 42 U.S.C. § 405(g). "[A]n appellant must show that the proffered
evidence is ( 1) new and not merely cumulative of what is already in the record and that it
is (2) material, that is, both relevant to the claimant's condition during the time period for
which benefits were denied and probative[.]" Lisa v. Sec y ofDep 't ofHealth & Human
Servs. of U.S., 940 F .2d 40, 43 (2d Cir. 1991) (citation and internal quotation marks

omitted). "Good cause for failing to present evidence in a prior proceeding exists
where ... the evidence surfaces after the Secretary's final decision and the claimant
could not have obtained the evidence during the pendency of that proceeding." !d. at 44.
(internal quotation marks omitted).
Plaintiffs proposed new evidence consists of medical evaluations by Dr.
Williams, Dr. Gluck, and Dr. Shapiro. As the Magistrate Judge observed, both Dr. Gluck
and Dr. Williams performed their evaluations ofPlaintiffin December 2013, eighteen
months after ALJ Sutker issued her most recent decision. Dr. Gluck's evaluation is less
favorable to Plaintiff than the ALJ's determination because his restrictions on Plaintiffs
ability to perform work are more limited. For example, Dr. Gluck determined Plaintiff
may stand for up to four hours per day, walk for three to four minutes at a time, and
occasionally carry up to fifty pounds. He also would place no limitations on Plaintiffs
sitting, posture, and "[m]anipulative activities[.]" (Doc. 16-1 at 6.) Dr. Gluck's report
did not state that Plaintiffs condition in December 2013 could be related back to
26

Plaintiffs condition on June 1, 2006, the date that Plaintiff alleges he became disabled.
In contrast, the ALJ limited Plaintiff to standing for "no more than 30 minutes at one
time" and noted that he should "avoid twisting with his left upper extremity." (AR 577.)
Similarly, Dr. Williams's report does not support Plaintiffs argument that he is
incapable of performing light work. Dr. Williams determined that Plaintiff"did not
present as someone who is easily confused or who experiences problems with
comprehension" and he "was not easily distracted[.]" (Doc. 16 at 4.) Dr. Williams's
assessment differed from Mr. Fine's assessment, on which the ALJ relied, in that he
scored Plaintiff with a twenty-five out of thirty on the Mini Mental Status Examination,
rather than thirty out of thirty. However, Dr. Williams declined to evaluate whether
Plaintiffs conditions would impact his ability to work and did not relate back his
assessment to June 1, 2006.
Finally, Dr. Shapiro's January 2014 evaluation of Plaintiff is arguably consistent
with the ALJ's determination. Although Dr. Shapiro restricted Plaintiff to sedentary
work, he noted that Plaintiff could stand or walk for up to three hours per day and sit for
up to six hours per day. Dr. Shapiro did not place limitations on Plaintiffs ability to push
or pull and operate hand and foot controls. He concluded that Plaintiff could
occasionally climb ladders and scaffolds. Dr. Shapiro limited Plaintiffs ability to
remember instructions and perform multi-step tasks, which is consistent with the ALJ's
determination that Plaintiff can only perform uncomplicated tasks. Dr. Shapiro's
evaluation was limited in time from September 30, 2013 to the present and did not relate
back to the date of disability.
As the Magistrate Judge pointed out, because Plaintiffs new evidence does not
address Plaintiffs condition on June 1, 2006, it does not provide a substantial ground for
concluding that the ALJ' s findings of fact and conclusions of law require reevaluation.
The court ADOPTS the R & R as its own Order for purposes of the sentence six remand,
finding it well-reasoned.

27

CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R as the court's Opinion and Order, DENIES Plaintiffs motion to remand
(Doc. 15), and GRANTS the Commissioner's motion for an order affirming the decision
of the Commissioner (Doc. 17). The court DENIES Plaintiffs motion for a reversal
based on his new arguments (Doc. 22).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

I 'I "day of July, 2015.

~.

Christina Reiss, Chief Judge
United States District Court

28