Garrow v. Commissioner of Social Security

Filing 11

OPINION AND ORDER granting 9 MOTION for Order Reversing the Decision of the Commissioner; denying 10 MOTION for Order Affirming the Decision of the Commissioner. Signed by Chief Judge Geoffrey W. Crawford on 2/4/2019. (esb)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
FRANKG.,
Plaintiff,
V.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 5:l 7-cv-103

OPINION AND ORDER
(Docs. 9, 10)

Plaintiff Frank G. brings this action under 42 U.S.C. § 405(g), requesting reversal of the
decision of the Commissioner of Social Security denying his application for disability insurance
benefits (DIB). 1 (Doc. 1; Doc. 9 at 1.) Currently pending is Plaintiffs motion to reverse the
decision of the Commissioner (Doc. 9) and the Commissioner's motion to affirm (Doc. 10). For
the reasons stated below, Plaintiffs motion is GRANTED, and the Commissioner's motion is
DENIED.
Background

Plaintiff was 50 years old on his alleged disability onset date of February 1, 2014.
(AR 64.) He states that he is unable to work due to spinal stenosis and depression. (AR 187.)
Plaintiff has a GED level of education. (AR 36, 188.) He lives with his girlfriend and her
mother. (AR 36.) He previously worked in bridge construction and as a loader operator. (AR 46,
188, 194.) He was laid off from his job as a loader operator at the end of 2013.

1

The Complaint states that Plaintiff also unsuccessfully applied for Supplemental
Security Income. (Doc. 1 at 1-2.) However, the record shows that Plaintiff only applied for DIB.
(AR 172.)

In 2013, Plaintiff sought medical advice for low back pain that radiated into his legs,
neck pain and stiffness, right shoulder pain, weakness in his arms and fingers, and headaches.
(AR 44, 256.) He received discectomy and fusion surgery at C5-6 and C6-7 on February 6, 2014.
(AR 274-75.) Plaintiff testified that the surgery did not help with his symptoms. (AR 45.) He
testified that his headaches start at the back of his head and radiate over the top of his head,
causing him to experience "a dull ache all day long." (Id.) When asked whether certain activities
trigger or exacerbate these headaches, he replied, "If I try to pick something heavy up, you know,
just picking stuff up, moving my neck all the time it makes my arms weak." (Id.) Plaintiff also
testified that he suffers from back problems, including an inability to bend over or stand up
straight. (Id.) He testified that he experiences pain in his lower back that radiates down his leg,
occasionally resulting in a "sharp pain" in his knee that makes him fall, particularly on the stairs.
(AR 45--46.) In a memorandum submitted to the administrative law judge before the hearing,
Plaintiff alleged that "neck issues will limit him from frequent movements with his head." (AR
237.)
Plaintiff has not worked since his alleged onset date. However, he testified that he
occasionally performs "odd jobs" at the place where he lives, such as laying floor tile, painting
and putting down baseboard, in exchange for reduced rent. (AR 37-38.)
Plaintiff protectively filed an application for DIB on July 8, 2014. (AR 82-83.) His claim
was denied initially on October 2, 2014 (AR 98), and on reconsideration on December 16, 2014
(AR 109). He requested a hearing on January 12, 2015. (AR 109.) Administrative Law Judge
(ALJ) Matthew Levin conducted a hearing on June 21, 2016. (AR 57.) Vocational Expert (VE)
Louie Laplant also testified. (AR 54-61.) ALJ Levin issued an unfavorable decision on

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September 15, 2016. (AR 20-28.) The Appeals Council denied Plaintiffs request for review
(AR 1), and he appealed to this court on May 15, 2017 (Doc. 1).

ALJ Decision
Social Security Administration regulations set forth a five-step, sequential evaluation
process to determine whether a claimant is disabled. McIntyre v. Colvin, 758 F.3d 146, 150
(2d Cir. 2014). First, the Commissioner considers "whether the claimant is currently engaged in
substantial gainful activity." Id Second, if the claimant is not currently engaged in substantial
gainful activity, then the Commissioner considers "whether the claimant has a severe impairment
or combination of impairments." Id Third, if the claimant does suffer from such an impairment,
the inquiry is "whether the impairment meets or equals the severity of the specified impairments
in the Listing of Impairments." Id Fourth, if the claimant does not have a listed impairment, the
Commissioner determines, "based on a 'residual functional capacity' assessment, whether the
claimant can perform any of his or her past relevant work despite the impairment." Id. •
Finally, if the claimant is unable to perform past work, the Commissioner determines
"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."
Id.; see 20 C.F.R. § 404.1520. The claimant bears the burden of proving his case at steps one
through four. McIntyre, 758 F.3d at 150. At step five, there is a "limited burden shift to the
Commissioner" to "show that there is work in the national economy that the claimant can do."
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).
Employing that sequential analysis in his May 12, 2016 decision, ALJ Matthew Levin
first determined Plaintiff has not engaged in substantial gainful activity since February 1, 2014.
(AR 22.) At step two, the ALJ found that Plaintiff has the following severe impairment:

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degenerative changes of the spine, status post cervical fusion surgery. (Id.) The ALJ also found
that Plaintiff has other non-severe impairments, including: chronic headaches, a rash on his
hands, and depression. At step three, the ALJ found that none of Plaintiffs impairments, alone or
in combination, meets or medically equals a listed impairment.
Next, the ALJ determined that Plaintiff has the residual functional capacity (RFC) to
perform light work as defined in 20 C.F.R. § 404.1567(b) 2 with the following exceptions:
[He] is limited from lifting/carrying more than 10 pounds frequently and [sic]
occasionally. He must avoid all ladders/ropes/scaffold, but he can occasionally
climb stairs. He has no limitations on balancing, kneeling and crouching, but he can
only occasionally crawl and stoop. He is limited to no more than frequent bilateral
overhead, forward and lateral reaching. He should avoid all hazards.
(AR 25.) At step four, the ALJ found that Plaintiff is unable to perform any past relevant work.
(AR26.)
At step five, the ALJ followed the Medical-Vocational Guidelines (the "Grid Rules")
contained in 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ found that Plaintiff was
50 years old when he allegedly became disabled and identified Plaintiff as "an individual closely
approaching advanced age." (AR 26.) The ALJ found that Plaintiff has at least a high school
education and is able to communicate in English and that "[t]ransferability of job skills is
dispositive in this case." (Id.) After considering Plaintiffs age, education, work experience, and

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The regulations include the following definition of light 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. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.
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RFC, the ALJ found that there are jobs in significant numbers in the national economy that
Plaintiff could perform, including assembler of plastic hospital parts, ticket taker/seller, and toll
collector. (AR 27.) The ALJ accordingly concluded that Plaintiff has not been under a disability,
as defined in the Social Security Act, from February 1, 2014 through the date of the decision.
(Id.)

Standard of Review
The Social Security Act defines disability, in pertinent part, 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." 42 U.S.C. § 423(d)(l)(A). Under the
Act, a claimant will only be found disabled if it is determined that his "impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy." Id. § 423(d)(2)(A).
In considering the Commissioner's disability decision, the court conducts '"a plenary
review of the administrative record to determine ifthere 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., Comm 'r, 683 F.3d 443,447 (2d Cir. 2012)
(per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42 U.S.C.
§ 405(g). "Substantial evidence means 'more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' Poupore,
566 F.3d at 305 (quoting Consol. Edison Co. ofNY v. Nat'! Labor Relations Bd., 305 U.S. 197,

229 (1938)). The "substantial evidence" standard is even more deferential than the "clearly

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erroneous" standard; facts found by the ALJ can be rejected "only if a reasonable factfinder
would have to conclude otherwise." Brault, 683 F.3d at 448 (quoting Warren v. Shalala, 29 F.3d
1287, 1290 (8th Cir. 1994)). The court is mindful that the Social Security Act is "a remedial
statute to be broadly construed and liberally applied." Dousewicz v. Harris, 646 F.2d 771, 773
(2d Cir. 1981 ).
Analysis

Plaintiff raises two arguments on appeal. First, he claims that substantial evidence does
not support the ALJ's credibility determination. (Doc. 9 at 4.) Second, he contends that the ALJ
failed to adequately accommodate all the limitations relating to his cervical spine impairment
when determining his RFC. 3 (Id at 8.) The Commissioner maintains that the ALJ's decision is
supported by substantial evidence and complies with applicable legal standards. (Doc. 10 at 1.)
The court begins with Plaintiff's second argument. Plaintiff claims that the ALJ erred in
assessing his RFC by failing to consider his allegations relating to his limited ability to move his
head and neck. (Doc. 9 at 8.) As a result, Plaintiff contends that the RFC hypotheticals posed to
the VE were not supported by substantial evidence, and therefore the VE's responses cannot
support the ALJ's findings at step five. (Id at 8-9.) "An ALJ may rely on a vocational expert's
testimony regarding a hypothetical as long as the facts of the hypothetical are based on
substantial evidence, and accurately reflect the limitations and capabilities of the claimant
involved." Calabrese v. Astrue, 358 F. App'x 274,276 (2d Cir. 2009) (summary order) (citation
omitted). Accordingly, the court focuses on whether substantial evidence supports the ALJ's

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Although the record includes materials relating to Plaintiff's mental health, the court
perceives Plaintiffs arguments on appeal to be focused on impairments stemming from his
physical condition. The court has considered all of the evidence as part of its review, but focuses
here on Plaintiff's physical functioning.
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RFC determination. If it does not, the ALJ improperly relied on the VE's testimony. Hofsommer
v. Berryhill, 322 F. Supp. 3d 519, 533 (S.D.N.Y. 2018).

The RFC is a "function-by-function assessment based upon all of the relevant evidence of
an individual's ability to do work-related activities." Titles II & XVI: Assessing Residual
Functional Capacity in Initial Claims, SSR 96-8P, 1996 WL 374184 (July 2, 1996). "The RFC

assessment must include a discussion of why reported symptom-related functional limitations
and restrictions can or cannot reasonably be accepted as consistent with the medical and other
evidence." SSR 96-8P. While "an explicit function-by-function analysis" is not required, the
RFC determination must "afford[] an adequate basis for meaningful judicial review, appl[y] the
proper legal standards, and [be] supported by substantial evidence such that additional analysis
would be unnecessary or superfluous .... " Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
"Remand may be appropriate, however, where an ALJ fails to assess a claimant's capacity to
perform relevant functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful review." Id.
As an initial matter, the court finds that head and neck movement is a relevant function in
this case. The Commissioner argues that the ALJ was not "required to impose greater RFC
limitations ... in order to account for [Plaintiffs] cervical spinal impairment." (Doc. 10 at 7.)
However, an "RFC does not represent the least an individual can do despite his or her limitations
or restrictions, but the most." SSR 96-8P; see also 20 C.F.R. § 404.1545(a). To the extent that the
Commissioner claims the ALJ exhaustively addressed the functions relevant to Plaintiffs RFC,
the court notes that non-exertional limitations restricting head and neck movement may
significantly diminish an individual's work capacity. See, e.g., Rowe v. Colvin, 166 F. Supp. 3d

234, 239-40 (N.D.N.Y. 2016) (ALJ erred by failing to address medical opinion that claimant had

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"marked limitations for ... neck motion"); Knighton v. Astrue, 861 F. Supp. 2d 59, 70
(N.D.N.Y. 2012) (finding reversible error where the ALJ failed to address non-exertional
limitations including "limited range of motion in [the claimant's] neck."); cf Cichocki, 729 F.3d
at 177 (noting that "the functions in paragraphs (b ), (c), and (d) of 20 CPR §§ 404.1545 ... are
only illustrative of the functions potentially relevant to an RFC assessment").
Moreover, the VE's testimony established that head movement is relevant to all potential
jobs that he testified someone with Plaintiffs RFC could perform. At the hearing, the ALJ
presented the VE with a hypothetical individual who presented the same functional limitations
the ALJ ultimately assessed for Plaintiff. (AR 58-59; cf AR 24-25.) The VE testified that such
an individual could work as an assembler of plastic hospital products, a ticket seller/taker, and a
toll collector. (AR 59.) Plaintiffs counsel then asked how frequently these three jobs might
require head movements. (AR 61.) The VE testified, "from observation I think it's fairly
consistent. I think it would be frequent head movement. That's my opinion. I've seen it at least
frequently." (Id.)
As the VE's testimony indicates, an individual restricted from frequent head movements
could not perform any of the three jobs that the VE identified for the ALJ. Put another way, nonexertional limitations regarding Plaintiffs ability to move his head and neck could completely
erode the occupational base of work that the VE testified he could perform. Plaintiffs functional
capacity to perform head movements is therefore relevant to his RFC assessment. Cf Ellis v.

Colvin, 29 F. Supp. 3d 288, 301-02 (W.D.N.Y. 2014) (finding non-exertional limitation
regarding use of hands relevant where attorney's questioning of VE showed that adding
restriction on repetitive hand movements to ALJ' s hypothetical "resulted in VE testifying that
such an individual could not perform any of the jobs in question.").

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When analyzing Plaintiffs RFC, however, the ALJ failed to adequately assess Plaintiffs
ability to perform head and neck movements. (See generally AR 24-26.) While an ALJ need
only discuss "reported symptom-related functional limitations;" SSR 96-8P (emphasis added);
the record shows that Plaintiff reported functional limitations related to difficulties moving his
head and neck. Plaintiff testified that "moving my neck all the time ... makes my arms weak."
(AR 45.) He also alleged in a memorandum submitted to the administrative law judge before the
hearing that "neck issues will limit him from frequent movements with his head." (AR 237.) In a
disability report dated October 22, 2014, he stated that a job requiring frequent "turning with
[my] head increas[es] pain in my neck." (AR 217.) Plaintiff later indicated in a disability report
dated May 11, 2015 that his condition had worsened since October 2014 because "my neck
hurt[s] anytime I turn my head." (AR 219.)
Whenever symptoms are alleged, "the RFC assessment must ... [c]ontain a thorough
discussion and analysis of the objective medical and other evidence, including the individual's
complaints of pain and other symptoms and ... [s]et forth a logical explanation of the effects of
the symptoms ... on the individual's ability to work." SSR 96-8P at *7; see also 20 C.F.R. §
404.1529(a) ("In determining whether you are disabled, we consider all your symptoms .... and
the extent to which your symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence."). Accordingly, the ALJ was required to determine
whether Plaintiffs alleged problems with head and neck movements gave rise to any functional
limitations.
The Commissioner argues that the ALJ was not required "to expressly evaluate
[additional] evidence relating to [Plaintiffs] cervical spinal impairment." (Doc. 10 at 7.) It is true

that "[a]n ALJ need not recite every piece of evidence that contributed to the decision, so long as

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the record 'permits us to glean the rationale of an ALJ' s decision."' Cichocki, 729 F .3d at 178
n.3 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). When assessing a
claimant's RFC, however, the ALJ must "specifically address limitations or conditions for which
there is substantial record evidence." Ellis v. Colvin, 29 F. Supp. 3d 288, 300-01 (W.D.N.Y.
2014) (citing Mason v. Barnhart, 96 F. App'x 30, 31-32 (2d Cir. 2004)); see also Sesa v. Colvin,
629 F. App'x 30, 33 (2d Cir. 2015) ("Although we do not require an ALJ explicitly to reconcile
every conflicting shred of medical evidence ... affirmatively determining an issue requires some
express discussion." (internal citations and quotation marks removed)).
In this case, there are numerous references in the medical records to Plaintiffs limited
range of motion in his cervical spine and difficulty with head movements. Under the regulations,
"objective medical evidence" includes "evidence of reduced joint motion, muscle spasm, [and]
sensory deficit." 20 C.F .R. § 404.1529( c)(2)). Physician Assistant Vivian Calobrisi reported on
October 21, 2013 that Plaintiffs symptoms of neck pain, neck stiffness, and shoulder pain "are
exacerbated by turning the head to the right, turning the head to the left, neck extension, and
neck movement." (AR 256.) On January 30, 2014, Dr. Scott Lollis evaluated Plaintiff for
cervical spinal steno sis and noted that Plaintiff "gets paresthesias4 in digits three through five
when he puts his neck in a certain position." (AR 304.) He found that "[s]ensory testing reveals
some hypesthesia5 in digits three to five as noted above," and stated that "it is reasonable to
suspect that his neck is playing a role in his symptoms." (AR 305.)

4

Paresthesia is defined as a "spontaneous abnormal usually nonpainful sensation (e.g.,
burning, pricking)." Stedman 's Medical Dictionary 653800 (28th ed. 2006) (Westlaw).
5
Hypesthesia is defined as "[d]iminished sensitivity to stimulation." Stedman 's Medical
Dictionary 427260 (28th ed. 2006) (Westlaw).
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The record indicates that Plaintiffs difficulties with head and neck movement continued
after February 1, 2014, his alleged disability onset date. After examining Plaintiffs cervical
spine on May 11, 2014, Dr. Robert Trembly noted that Plaintiffs "neck shows a somewhat
impaired range of motion of [sic] with a lot of accompanying muscle spasm." (AR 249.) PA
Calobrisi examined Plaintiffs cervical spine on June 11, 2015 and found a "[f]ull range of
motions" but noted that the "[r]ange of motion decreased and [m]ovements painful." (AR 454.)
On June 26, 2015, Dr. Trembly found that Plaintiffs "neck shows limited rotation and lateral
bending" and noted that he was "able to reproduce pain by loading the facet joints or with
flexion or extension." (AR 456.) Plaintiffs primary care physician Dr. Jessica Andrews
performed a physical examination of Plaintiff on January 12, 2016 and found that his neck had a
"very limited" range of movement. (AR 468.) Additionally, Plaintiffs physical therapy treatment
notes indicates he was unable to "increase painfree cervical ROM [range of motion] to WNL
[working normal levels]" by the time he ended physical therapy on May 6, 2016. (AR 506.)
Thus, the record contains at least some minimal objective signs of Plaintiffs difficulty with head
and neck movements.
However, nowhere did the ALJ properly consider the record evidence substantiating
Plaintiffs alleged difficulty with head and neck movements. (See generally AR 22-24.) "An
ALJ cannot recite only the evidence that supports his conclusion while ignoring contrary
evidence." Amy P. v. Comm 'r ofSoc. Sec., No. 2:17-CV-94, 2018 WL 2095345, at *6 (D. Vt.
May 7, 2018) (quoting Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir. 2016)); see also Kulesza v.
Barnhart, 232 F. Supp. 2d 44, 57 (W.D.N.Y. 2002)) ("The ALJ's failure to acknowledge

relevant evidence or to explain its implicit rejection is plain error." (quoting Pagan v.

Chater, 923 F. Supp. 547, 556 (S.D.N.Y. 1996)): When summarizing the medical evidence at

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step two, 6 the ALJ noted findings of tenderness in the cervical spine and referenced Dr.
Trembly's findings regarding Plaintiffs limited range of motion in his cervical spine. (AR 23.)
But merely mentioning this evidence in passing does not show that the ALJ properly considered
limitations caused by Plaintiffs difficulty with head movements in determining his RFC. See
Southgate v. Colvin, No. 2:14-CV-166, 2015 WL 6510412, at *6 (D. Vt. Oct. 28, 2015). And

while the Commissioner stresses that "the ALJ noted numerous examination findings of normal
strength, intact sensation and reflexes, normal gait, and negative straight leg raise testing" (Doc.
10 at 4 (citing AR 23)), these findings address muscle strength and reflexes, not head and neck
mobility.
The ALJ did address Plaintiffs "alleged problems with weakness in his hands." (AR 25.)
However, the ALJ summarized Plaintiffs testimony, in relevant part, as "when he picks up
something heavy, it makes his arms weak." (Id.) The ALJ did not address Plaintiffs allegation
that "moving my neck all the time, it makes my arms weak." (AR 45 (emphasis added).)
The court notes that the ALJ began his RFC analysis by stating that he had "considered
all symptoms and the extent to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence, based on the requirements of20 CFR
404.1529 and SSR 96-4p." (AR 25.) However, "[s]uch boilerplate has been roundly condemned,
and is no substitute for specific reasons for discrediting specific allegations of restrictions or
limitations on one's ability to work." Smith v. Comm 'r ofSoc. Sec., No. 2:10-CV-176, 2011 WL

6

In this case, the ALJ unconventionally reviewed most of the medical evidence before
assessing Plaintiffs RFC. "The Court is not prevented, however, from looking elsewhere in the
ALJ's decision to determine what limitations the ALJ assessed [the claimant] as having." King v.
Colvin, No. 2:14-CV-184, 2015 WL 5554987, at *5 (D. Vt. Sept. 21, 2015).
12

6372792, at *10 (D. Vt. Dec. 20, 2011) (citing SSR 96-7p, 1996 WL 374186 (July 2, 1996);
SSR 96-8p; Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010)).
The Commissioner contends that the ALJ' s RFC determination is supported by the
medical opinions of State Agency reviewing physicians Dr. Geoffrey Knisely and Dr. John
Hassinger, who both assessed Plaintiffs RFC after reviewing the available medical records.
(Doc. 10 at 7.) In his RFC analysis, the ALJ afforded great weight to these opinions (AR 26),
neither of which assessed limitations on Plaintiffs ability to move his head and neck (see

generally AR 69-70, 90-92). The Commissioner emphasizes that "there is no RFC opinion of
record to compete with those of Drs. Knisely and Hassinger, who extensively considered
Plaintiffs cervical spinal impairment." (Doc. 10 at 7.)
The Commissioner essentially argues that because Dr. Knisely and Dr. Hassinger did not
assess limitations on Plaintiffs ability to move his head and neck, their opinions are therefore
consistent with the ALJ's RFC findings. However, the Second Circuit previously rejected a
similar argument in Rosa v. Callahan, 168 F.3d 72, 81 (2d Cir. 1999). In Rosa, the
Commissioner claimed "that the ALJ properly concluded that [the claimant] did not suffer from
any impairments unlisted by either of the consulting physicians." Id The Rosa court rejected this
contention because "the two consulting physicians' reports did not 'corroborate' one anothereach doctor identified certain physical limitations not identified by the other." Id. As a result, the
court held that "there was simply no basis for the ALJ to conclude that either doctor intended to
provide, or succeeded in providing, a full accounting of Plaintiffs physical impairments." Rosa,
168 F.3d at, 81.
Similarly, the record here reveals that Dr. Knisely's and Dr. Hassinger's opinions do not
corroborate one another. For example, while Dr. Knisely found no manipulative or

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environmental limitations (AR 79), Dr. Hassinger indicated that Plaintiff was limited to frequent
bilateral, overhead, forward, and lateral reaching and should "[a]void concentrated exposure" to
environmental hazards (AR 91-92.). Cf Gunter v. Comm 'r ofSoc. Sec., 361 F. App'x 197,200
(2d Cir. 2010) (opinions did not corroborate each other where one doctor "stated that plaintiffs
abilities in bending, lifting, and carrying were 'slightly limited'" and the other "claimed that
plaintiffs limitations were 'severe,' albeit 'not to the degree alleged."'). Given the discrepancies
between the two opinions, there was no basis for the ALJ to conclude that either doctor provided
a complete account of Plaintiffs limitations. See Rosa, 168 F .3d at 81.
Moreover, to the extent that the Commissioner claims the reviewing physicians' opinions
were consistent with a finding that Plaintiff could perform frequent head movements, the
opinions "were consistent with this conclusion ... only to the extent that they were silent on the
issue." Id. As already noted, neither opinion addressed whether Plaintiffs cervical spine
impairment limited his head and neck mobility. When evaluating Plaintiffs postural limitations,
Dr. Knisely and Dr. Hassinger only assessed his ability to climb ramps, stairs, ladders, ropes, and
scaffolds; balance; stoop (i.e. bend at the waist); kneel; crouch; and crawl. (AR 69-70, 91.) None
of these functional assessments indicate how often and to what extent Plaintiff can move his
head and neck. While there are no other medical opinions on the record assessing Plaintiffs
functional limitations,7 the absence of evidence indicating that Plaintiff can frequently move his
head during an eight-hour workday does not constitute substantial support for the ALJ's RFC
determination. See Rodgers v. Colvin, No. 16-CV-6739-CJS, 2018 WL 446220, at *3 (W.D.N.Y.
Jan. 17, 2018) (where consultative examiner did not address relevant functional abilities, the ALJ

7

Although the record includes a medical opinion from Dr. Jessica Andrews, Plaintiffs
Primary Care Provider, she did not complete the provided questionnaire beyond describing
Plaintiffs general medical information. (AR 489-92.)
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could not assume there were no limitations); Jermyn v. Colvin, No. 13-CV-5093 (MKB), 2015
WL 1298997, at *20 (E.D.N.Y. Mar. 23, 2015) ("[T]he ALJ was not permitted to construe the
silence in the record as to Plaintiffs functional capacity as indicating support for his
determination as to Plaintiffs limitations."); cf Rosa, 168 F.3d at 81 ("[T]he Commissioner was
precluded from relying on the [consulting physicians'] omissions as the primary evidence
supporting its denial of benefits."). Therefore, the ALJ could not properly conclude that
Plaintiffs only limitations were those identified in the reviewing doctors' opinions.
For the reasons discussed above, the court concludes that the ALJ erred by failing to
assess Plaintiffs RFC in light of his alleged limitations with head and neck movements, and
consequently the VE's testimony cannot support the ALJ's decision to deny disability benefits.
See Calabrese, 358 F. App'x at 276; Hofsommer, 322 F. Supp. at 535. Neither the decision nor

the record show that the ALJ specifically addressed Plaintiffs alleged problems with head and
neck movements in his RFC assessment. As a result, the court cannot be certain the ALJ applied
the correct legal principles. The Second Circuit recognizes that where the court is "unable to
fathom the ALJ' s rationale in relation to evidence in the record, especially where credibility
determinations and inference drawing is required of the ALJ," it is appropriate to remand the
case "for further findings or a clearer explanation for the decision." Cichocki, 729 F.3d at 177
(quoting Berry v. Schweiker, 675 F.2d 464,469 (2d Cir. 1982)).
The court therefore finds remand is necessary. Accordingly, the court does not reach
Plaintiffs other arguments. Although the court is not addressing Plaintiffs arguments
concerning the ALJ's credibility assessment (or subjective symptom evaluation) 8 or

8

The regulations and sub-regulatory policy no longer use the term "credibility," since
"subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p,
2016 WL 1119029, at *1 (Mar. 16, 2016).
15

consideration of the opinion evidence, the ALJ may reconsider those issues on remand, and
should consider whether the evidence of record regarding Plaintiffs ability to move his head and
neck warrants including additional non-exertional limitations in the RFC assessment. "In
analyzing the record on remand, the ALJ remains free ... to develop the administrative record to
the extent necessary to make this and any other determinations on the extent and causes of
[Plaintiffs] symptoms." Padula v. Astrue, 514 F. App'x 49, 51 (2d Cir. 2013) (citing Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
Conclusion

Plaintiffs Motion to Reverse the Decision of the Commissioner (Doc. 9) is GRANTED,
and the Commissioner's Motion for Order Affirming the Commissioner's Decision (Doc. 10) is
DENIED. The case is REMANDED for further proceedings and a new decision.
Dated at Rutland, in the District of Vermont, this

t-{ day of February, 2019.

G e o f u e ~ h i e f Jud
United States District Court

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