Cummings v. Berryhill

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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HERMAN CUMMINGS,

Plaintiff,

MEMORANDUM AND ORDER

v.

19-cv-2071(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Herman

Cummings (“plaintiff”) appeals the final decision of the

Commissioner of Social Security (“defendant”), which found that

plaintiff was not eligible for Supplemental Security Income

(“SSI”) disability benefits under Title XVI of the Social

Security Act (“the Act”), on the basis that plaintiff is not

disabled within the meaning of the Act. Plaintiff alleges that

he is disabled under the Act and is thus entitled to receive the

aforementioned benefits.

Presently before the court is plaintiff’s motion for

judgment on the pleadings (ECF No. 17, “Pl. Mot.”, and ECF No.

18, “Pl. Mem.”), defendant’s cross-motion for judgment on the

pleadings (ECF No. 19, “Def. Cross-Mot.”, and ECF No. 20, “Def.

Mem.”), and plaintiff’s reply to defendant’s cross-motion (ECF

No. 21, “Pl. Reply”.) For the reasons stated below, plaintiff’s

motion is GRANTED, defendant’s cross-motion is respectfully

DENIED, and the case is remanded for further proceedings

consistent with this Memorandum and Order.

BACKGROUND

I. Procedural History

In January 2010, plaintiff Herman Cummings first

applied for SSI disability benefits and was found to be

disabled. (ECF No. 1, Complaint (“Compl.”).) He was paid SSI

disability benefits from February 2010 to September 2014. (Id.)

In September 2014, the Social Security Administration (“SSA”)

discontinued plaintiff’s SSI benefits, allegedly asserting that

he had requested to withdraw his request for a hearing. (Id.)

On October 1, 2014, plaintiff refiled an application for Title

XVI disability insurance benefits. (ECF No. 22, Administrative

Transcript (“Tr.”) 16.) The date of alleged onset of

plaintiff’s disability is September 2, 2009 (id.), and plaintiff

claims that he has been disabled as a result of bilateral

shoulder impingement, an essential tremor, depression, and

anemia. (ECF No. 1, Compl.) On March 17, 2016, plaintiff’s

claim was denied. (Tr. 16.)

On April 7, 2015, plaintiff requested a hearing before

an Administrative Law Judge (“ALJ”). (Id.) On September 12,

2017, plaintiff appeared, along with his attorney, Mr. Bose, and

testified before ALJ Margaret Donaghy. (Tr. 15-16.) Vocational

expert (“VE”) Jeffrey Barrett also testified. By a decision

dated October 24, 2017, the ALJ determined that plaintiff was

not disabled within the meaning of the Act and was thereby not

entitled to benefits. (Tr. 13-23.)

On December 27, 2017, plaintiff appealed the ALJ’s

decision to the Appeals Council. (Tr. 224-25.) On February 6,

2019, the Appeals Council denied review of the decision, thereby

rendering final the ALJ decision. (Tr. 1-5.) On April 9, 2019,

plaintiff filed the instant action and his motion for leave to

proceed in forma pauperis in federal court. (ECF Nos. 1 and 2.)

On April 12, 2019, the court granted plaintiff’s motion to

proceed in forma pauperis and issued a scheduling order for the

case. (Dkt. Order dated 4/12/19.)

On April 17, 2019, the court amended the scheduling

order. (Dkt. Order dated 4/17/19.) On September 9, 2019,

plaintiff filed a motion for extension of time to file his

motion for judgment on the pleadings. (ECF No. 11, Letter

Motion for Extension of Time to File.) On September 10, 2019,

the court granted in part and denied in part plaintiff’s motion,

granting plaintiff’s consent motion and denying the parties’

inclusion of a sur-reply by defendant. (Dkt. Order dated

9/10/2019.) On October 9, 2019, plaintiff again filed a motion

for extension of time to file his motion for judgment on the

pleadings. (ECF No. 12, Letter Motion for Extension of time to

File.) Once more, on October 10, 2019, the court granted in

part and denied in part plaintiff’s motion for the same reasons

stated above. (Dkt. Order dated 10/10/2019.) On October 17,

2019, plaintiff filed once again a motion for extension of time

to file his motion for judgment on the pleadings. (ECF No. 13,

Letter Motion for Extension of Time to File.) On October 17,

2019, the court granted plaintiff’s motion for extension of time

to file. (Dkt. Order dated 10/17/2019.)

On January 15, 2020, plaintiff filed his notice of

motion and memorandum of law in support of plaintiff’s motion

for judgment on the pleadings. (ECF Nos. 17 and 18.) On that

same day, defendant filed its cross-motion and memorandum of law

in support of defendant’s cross-motion for judgment on the

pleadings and in opposition of plaintiff’s motion for judgment

on the pleadings. (ECF Nos. 19 and 20.) Later that same day,

plaintiff filed his reply memorandum of law. (ECF No. 21, Pl.

Reply.)

II. Medical and Non-Medical Evidence

On January 15, 2019, the parties submitted Joint

Stipulated Facts. (ECF No. 20-1, Joint Stipulation of Relevant

Facts (“Facts”).) The court incorporates the facts contained

therein.

a. Relevant Medical Evidence

On March 9, 2015, at the request of the SSA, plaintiff

was examined by Dr. Lyudmila Trimba. (Tr. 334-37.) Plaintiff’s

chief complaint was bilateral shoulder pain and right foot pain.

(Tr. 334.) Plaintiff stated that he had bilateral shoulder pain

since 2009 which worsens with movement, lifting, and overhead

activities. (Id.) In 2009, he had arthroscopic surgery of his

bilateral shoulder at the Long Island Jewish Hospital and, since

then, he reported 5/10 on the pain scale from one to ten. (Id.)

He does not take pain medication for his shoulder pain, but he

did physical therapy after the surgery. (Id.) He also stated

that he had right foot pain for two years. (Id.) In October

2013, plaintiff had right foot surgery for osteoarthritis at

Brooklyn Hospital and, since then, he reported 5/10 on the pain

scale from one to ten. (Id.) Plaintiff further stated that the

foot pain gets worse with walking and standing, and he can only

walk one to two blocks and one flight of steps. (Id.) Finally,

plaintiff complained of bilateral hand benign tremors for which

he is taking medication. (Id.)

Dr. Trimba examined plaintiff and concluded that

plaintiff was in no acute distress and had a normal gait. (Tr.

335.) Dr. Trimba reported that plaintiff “[c]an walk on heels

and toes complaining of pain in the right foot. He can do a

full squat. Stance is normal . . . Needed no help changing for

exam or getting on and off exam table. Able to rise from chair

without difficulty.” (Id.)

On September 15, 2015, plaintiff was examined by Nurse

Practitioner (“NP”) Keran Hill at Brightpoint Health for an

initial evaluation. (Tr. 393-97.) NP Hill reported that

plaintiff was taking Propranolol daily for involuntary tremors

that he has had since childhood. (Tr. 396.) Plaintiff stated

that he did not have any pain. (Tr. 393.) NP Hill concluded

that he was in a “good general state of health, denies changes

in ap[p]etite or weight, denies: fever, fatigue, weakness, is

able to do usual activities, good exercise tolerance.” (Tr.

394.) He reported “no muscle or joint pain, no

neck/backache/shoulder pain, no swelling or redness in joints,

no limitation in motion, no muscle weakness.” (Id.)

On September 29, 2015, plaintiff saw NP Hill again for

a lab review. (Tr. 390-92.) NP Hill assessed that plaintiff

had prediabetes, anemia and latent tuberculosis infection

(“LTBI”). (Tr. 391.) NP Hill prescribed plaintiff Isoniazid

for LTBI, iron tablets for his anemia, and advised plaintiff on

dietary considerations for the prediabetes. (Id.)

On October 13, 2015, plaintiff returned to see NP Hill

for a follow-up. (Tr. 387-89.) NP Hill reported that “100%

adherence to TB medications encouraged with side/adverse affects

discussed.” (Tr. 388.) NP Hill also assessed plaintiff’s rare

disorder that causes involuntary movements and spasms. (Id.)

NP Hill advised plaintiff to continue taking Propranolol to

manage symptoms. (Id.) Finally, plaintiff was advised to

consider quitting smoking. (Id.)

On October 27, 2015, plaintiff returned to see NP Hill

for another follow-up. (Tr. 384-86.) Plaintiff reported that he

was taking his prescribed medication and denied missing any

doses. (Tr. 384.) He also denied any concerns or issues at

that time. (Id.) NP Hill concluded that he was in a good

general state of health and he reported no pain. (Id.)

On October 29, 2015, plaintiff was seen by NP Thomas

Perron for a psychiatric and psychosocial evaluation. (Tr. 381-

83.) Plaintiff stated that he was “depressed for past 3-4

months.” (Tr. 381.) He reported having little interest or

pleasure in doing things, feeling down, and feeling hopeless.

(Id.) NP Perron assessed plaintiff as having adjustment

disorder with depressed mood. (Tr. 382.) NP Perron advised

plaintiff to continue taking his prescribed medication and

recommended psychotherapy. (Tr. 381-82.)

On November 24, 2015, plaintiff returned to see NP

Hill for another follow-up. (Tr. 378-80.) NB Hill reported

that plaintiff was taking his current medications as prescribed

and denied any side effects or symptoms of TB. (Tr. 378.)

Plaintiff was also treated for acid reflux and was advised on

diet modifications. (Tr. 378-79.) Plaintiff was also counseled

on the dangers of smoking and he was urged to quit. (Tr. 379.)

On December 3, 2015, plaintiff was seen by NP Hill for

treatment for the common cold. (Tr. 375-77.) On December 24,

2015, plaintiff again saw NP Hill for an upper respiratory

infection. (Tr. 372-74.) Plaintiff was prescribed medication

and was advised again to stop smoking. (Tr. 373.) NP Hill also

reported that plaintiff was in a good general state of health,

was able to do usual activities, and had good exercise

tolerance. (Tr. 372.)

On February 23, 2016, plaintiff was seen by NP Hill

for a follow-up. (Tr. 367-71.) Plaintiff complained of body

aches, coughing, and yellow phlegm. (Tr. 367.) He also stated

that his tremors improved, but he was out of medication. (Id.)

NP Hill renewed plaintiff’s prescription and reported that he

was in good general state of health, was able to do usual

activities, and had good exercise tolerance. (Tr. 367, 370.)

On March 16, 2016, plaintiff was seen by NP Hill for

another follow-up. (Tr. 364-66.) NP Hill reported that

plaintiff “reports tremor with intention. He reports taking

propranolol daily, but he does not believe medication is

working. He reports belief tremor is worsening. Denied pain.”

(Tr. 364.) NP concluded that plaintiff was in a good general

state of health and was in no acute distress. (Id.) NP Hill

referred him to a doctor because of his involuntary bilateral

tremor in his hands that was not improving with the prescribed

medication. (Tr. 365-66.)

On April 13, 2016, plaintiff was seen by NP Hill for a

follow-up. (Tr. 361-63.) Plaintiff reported that he was

generally feeling well but sometimes he had a headache. (Tr.

361.) Additionally, plaintiff stated that his upper respiratory

symptoms have cleared up. (Id.)

On May 4, 2016, plaintiff was seen by NP Hill for a

sore throat. (Tr. 357-60.) During this examination, plaintiff

reported that his tremors were stable and that he had a follow-

up with a neurologist later in the month. (Tr. 358.) NP Hill

concluded that plaintiff was in a good general state of health

with no acute distress. (Tr. 357.)

On November 28, 2016, plaintiff was seen by Jonathan

Zellan, M.D. for his annual physical. (Tr. 348-56.) Dr. Zellan

noted that “Patient reports that he has a tremor when he wakes

up in the morning. He has had this for years. The only way he

can get the tremor to [] stop is by drinking. He drinks a

couple of beers and it gets better. He was getting propranolol

and it helps a little.” (Tr. 349.) Dr. Zellan concluded that

plaintiff was in a good general state of health, was able to do

usual activities, had good exercise tolerance, and was in no

acute distress. (Id.)

On December 14, 2016, plaintiff was seen by NP Vanna

Kham for a follow-up. (Tr. 344-47.) Plaintiff stated that he

had tremors in his hands. (Tr. 345.) He also reported to

“drinking 2 bottles of 40 ounce beer daily. [S]tates he has

enrolled in detox prog[ram]s in past with no effect.

[R]efuse[s] detox at this time.” (Tr. 344.) Plaintiff was

counseled on reducing his alcohol consumption and again on

quitting smoking. (Tr. 346.) NP Kham also noted that plaintiff

“was given referral in past to neurologist. [N]o [appointments]

made. [W]ill re-refer.” (Id.) NP Kham concluded that

plaintiff was in a good general state of health. (Tr. 345.)

On December 22, 2016, plaintiff returned to see NP

Kham for a painful lump to his right axilla. (Tr. 342-43.)

Plaintiff was advised to place a warm compress on it and if it

grew any larger or more painful, to go to the emergency room.

(Tr. 343.) Dr. Kham concluded that plaintiff was in no acute

distress and that he was in a good general state of health.

(Tr. 342-43.)

On February 28, 2017, plaintiff was seen by NP Hill

for a follow-up. (Tr. 339-41.) Plaintiff reported that when he

holds any objects, his tremor is “uncontrollable.” (Tr. 339.)

NP Hill noted that “Patient reports that he drinks a 6-pack beer

every day. Patient said that he has been consuming 2 years.

States that [] the tremors ha[ve] been ongoing long before his

alcohol use.” (Tr. 340.) NP Hill advised plaintiff to follow

up with his neurology appointment and to reduce his alcohol

consumption. (Id.) NP Hill noted that the alcohol “may be a

factor for his tremors.” (Id.) NP Hill concluded that

plaintiff was in a good general state of health, had no

weakness, fatigue or fever, had a good exercise tolerance, was

able to do usual activities, and was in no acute distress. (Tr.

339.)

b. Relevant Non-Medical Evidence

Plaintiff was born on October 20, 1963. (Tr. 226.)

The highest grade of school he completed was the 8th grade which

took place in 1980. (Tr. 257.) Plaintiff did not receive a

GED, nor did he receive other vocational training or education.

(Tr. 120.) Plaintiff is not married, and he does not have any

children. (Tr. 121.) At the ALJ hearing, plaintiff testified

that he was living in a shelter since 2013 due to cessation of

his benefits. (Id.) Plaintiff had no significant past relevant

work. (Tr. 118.) He testified that he worked a summer job back

in the 1980s and in 2016 he cleaned for another shelter named

Bellview. (Tr. 122-23.) The cleaning job was part time, five

days a week from 8:00 a.m. to 4:00 p.m. (Tr. 123.) Plaintiff

stated that he did not recall the exact salary, but it was

around minimum wage. (Id.) He had some trouble with the

cleaning job whenever he was asked to move or shift something

around. (Tr. 130.) Plaintiff stopped working at the cleaning

job because it was for a six-month term of employment. (Tr.

124.) Plaintiff testified that, if the job had continued, he

would “not really” have been able to continue. (Id.) He stated

that he started having back and shoulder pain from his past

injuries and pain in his elbows during the night. (Id.)

Plaintiff also testified, however, that his problems with his

shoulders and right foot did not prevent him from doing the

cleaning work. (Tr. 136-37.) He has not had a job since the

cleaning job ended. (Tr. 124.)

Plaintiff testified that his tremors prevented him

from doing the kind of cleaning work that he was doing before

and also any other kind of work. (Tr. 125.) Plaintiff stated

“I wake up in the morning. I can’t hold water. I got to, I

can’t eat cereal, I can’t use forks because I’ll stick myself in

the mouth I tremor so bad.” (Id.) Instead, plaintiff has to

use spoons to eat so he doesn’t stick himself in the tongue or

in the mouth. (Tr. 133-34.) Plaintiff testified that he was

prescribed medication for the tremors, but the tremors only

slightly calmed down. (Id.)

In October 2014, when plaintiff applied for SSI, the

SSA claims representative noted that plaintiff “was presentable

and cooperative. He was visibly trembling and could not

complete the paper 3368 because of his tremors. Even when

separating documents he wanted to present, he had extreme

difficulties.” (Tr. 253.)

Plaintiff further testified that he also had back pain

and numbness in his hand at night. (Tr. 125.) He was

prescribed medication for the pain and had no side effects from

it. (Tr. 126.) He stated that he could only stand about an

hour or two and then he must sit due to bad kneecaps and his

legs beginning to give out. (Tr. 126-27.) Plaintiff stated

that he can walk, but not for long; a block or two, three at

most. (Tr. 127.) He stated that he can lift maybe 25 or 50

pounds. (Id.)

Plaintiff testified that he is in an outpatient

alcohol treatment program at his shelter and is no longer

consuming alcohol. (Tr. 127-28.) He stated that stopping

drinking has not improved his tremors and that he has had them

for years. (Tr. 134.) He started smoking cigarettes when he

was thirteen years old and smokes a pack daily. (Tr. 335.)

Plaintiff also attends a group psychiatrist meeting twice a

week, which he started attending about a month before the ALJ

hearing. (Tr. 128.) Plaintiff has no issues with taking public

transportation, personal care such as bathing, showering and

dressing, preparing meals for himself, and doing his own

laundry. (Tr. 129.) On a typical day, plaintiff stays inside

the shelter’s common room and watches television, or sits in the

yard. (Id.)

Additionally, plaintiff testified that he has had two

shoulder surgeries. (Tr. 134.) The first surgery was in 2009,

and the second was in 2013. (Id.) Plaintiff stated that he

believed that the elbow pain he began experiencing in the month

before the hearing is a result of one of the surgeries. (Tr.

134-35.) He stated that his shoulder pain prevents him from

being able to carry much, and as an example he said he could

only carry a gallon of milk from the store to the shelter, but

he “couldn’t carry it two or three blocks.” (Tr. 135.)

Plaintiff also stated that he has arthritis in his right foot,

and feels aches and pains when it rains or gets cold out. (Tr.

136.)

Plaintiff testified that back in 2010 when he was

granted benefits, he was found disabled from meeting listing

1.02. (Tr. 137.) From then up until the hearing, plaintiff

stated that his shoulders have not improved, but rather the pain

has gotten worse. (Tr. 137-38.) Additionally, the numbness in

his hands still occurs. (Tr. 138.)

c. Vocational Expert Opinion

At the ALJ hearing, VE Jeffrey Barrett testified.

(Tr. 138.) The VE identified plaintiff’s past cleaning work as

a “Cleaner, Commercial or Institutional. 381.687-014. It’s

heavy duty, SVP 2.” (Tr. 139.) The ALJ stated a hypothetical

situation:

If we consider an individual of the claimant’s

age which is currently 50-53 years old, the

same education which is through the 8th grade,

and consider no past relevant work experience.

Further assume this individual can lift and

carry 50 pounds occasionally, 25 pounds

frequently. This individual can stand and

walk for a total of six hours in an eight hour

day and sit for a total of six hours in an

eight hour day. And this individual could

frequently but not constantly handle and

finger. Would there be jobs that individual

could do?

Tr. 139. The VE stated that this hypothetical individual could

be a Bagger 920.687-014, which is medium duty, SVP 2, and that

705,660 individuals were engaged in that occupational cluster in

the national economy. (Tr. 140.) The VE also suggested a

General Helper 522.686-014, which is medium duty, SVP 2, and

that 58,070 individuals were engaged in that occupational

cluster in the national economy. (Id.) Finally, the VE

suggested a Cleaner II 919.687-014, which is medium duty, SVP 1,

and that 348,770 individuals were engaged in that occupational

cluster in the national economy. (Id.)

The ALJ then altered the hypothetical to reflect that

the individual could only occasionally handle and finger, and

asked if the results would change. (Id.) The VE testified that

“would eliminate all three of these.” (Tr, 141.) The VE

further stated that for occasional handling “we would not find

anything unskilled at medium duty.” (Id.)

LEGAL STANDARD

I. Substantial Evidence or Legal Error

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is ‘more than a mere scintilla,’” and must

be relevant evidence that a reasonable mind would accept as

adequate to support a conclusion. Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C § 405(g). Inquiry into legal

error “requires the court to ask whether ‘the claimant has had a

full hearing under the [Commissioner’s] regulations and in

accordance with the beneficent purposes of the [Social Security]

Act.’” Moran v Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The

reviewing court does not have the authority to conduct a de novo

review and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r, 692 F.3d 118, 122 (2d Cir. 2012).

Before determining whether the Commissioner’s final

decision is supported by substantial evidence under 42 U.S.C. §

405(g), “the court must first be satisfied that the ALJ provided

plaintiff with ‘a full hearing under the Secretary’s

regulations’ and also fully and completely developed the

administrative record.” Scott v. Astrue, No. 09-CV-3999 (KAM),

2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010) (quoting

Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755

(2d Cir. 1982)); see also Rodriguez v. Barnhart, No. 02-CV-5782

(FB), 2003 WL 22709204, at *3 (E.D.N.Y. Nov 7, 2003). The

purpose of the administrative review process should be

investigatory and beneficent, not adversarial. See 20 C.F.R. §

405.1(c)(1) (“In making a determination or decision on your

claim, we conduct the administrative review process in a non-

adversarial manner.”); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.

1996) (“The model is investigatory, or inquisitorial, rather

than adversarial”).

In social security appeals, the court must base its

review “upon the pleadings and transcript of the record.” 42

U.S.C. § 405(g). The court “may at any time order additional

evidence to be taken before the Commissioner of Social Security,

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.” Id. “[R]emand based on the need to review new

evidence requires ‘(1) a showing that there is new and material

evidence and (2) good cause for the failure to incorporate that

evidence into the record in a prior proceeding.’” Rose, 202 F.

Supp. 3d at 241 (quoting Skrodzki v. Comm’r, No. 11-CV-5173

(MKB) 2013 WL 55800, at *4 (E.D.N.Y. Jan. 3, 2013)).

New evidence is considered material if “(1) it is

relevant to the claimant’s condition during the time period for

which benefits were denied, (2) it is probative, and (3) there

is a reasonable possibility that the new evidence would have

influenced the [Commissioner] to decide claimant’s application

differently.” Williams v. Comm’r, 236 F. App’x 641, 644 (2d

Cir. 2007) (internal quotation marks and citation omitted). For

example, “subsequent evidence of the severity of a condition

suggest[ing] that the condition may have been more severe in the

past than previously thought” could be material. Id.

Further, if there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C § 405(g). Inquiry into legal

error “requires the court to ask whether ‘the claimant has had a

full hearing under the [Commissioner’s] regulations and in

accordance with the beneficent purposes of the [Social Security]

Act.’” Moran v Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The

reviewing court does not have the authority to conduct a de novo

review and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r, 692 F.3d 118, 122 (2d Cir. 2012).

II. Five Step Sequential Evaluation

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant meets this requirement when he is

unable 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.” Id. § 423(d)(1)(A); Shaw, 221 F.3d at 131-32. The

impairment must be of “such severity” that the claimant is

unable to do his previous work or engage in any other kind of

substantial gainful work. 42 U.S.C. § 423(d)(2)(A).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s conditions meet the Act’s

definition of disability. See 20 C.F.R. § 404.1520. During

this five-step process, the Commissioner must consider whether

“the combined effect of any such impairment . . . would be of

sufficient severity to establish eligibility for Social Security

benefits.” 20 C.F.R. § 4040.1523. Further, if the Commissioner

does not find a combination of impairments, the combined impact

of the impairments, including those that are not severe (as

defined by the regulations), will be considered in the

determination process. 20 C.F.R. § 416.945(a)(2).

At steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving . .

. disability.” Burgess, 537 F.3d at 128. At step five, the

burden shifts from the claimant to the Commissioner, requiring

that the Commissioner show that, in light of the claimant’s

residual functional capacity, age, education, and work

experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

985 F. Supp 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

DISCUSSION

Plaintiff’s motion for judgment on the pleadings

contends that ALJ Margaret Donaghy’s residual functional

capacity (“RFC”) finding for medium work was not consistent with

established limitations related to his involuntary tremors, and

the RFC failed to account for limitations in reaching and

handling. (ECF No. 18, Pl. Mem.) Specifically, plaintiff

asserts that his “involuntary tremor should have led the ALJ to

conclude that [he] is unable to meet the grasping, holding, and

turning demands of medium work.” (Id. at 4.) In the

Commissioner’s cross-motion for judgment on the pleadings,

defendant contends that the RFC finding was supported by

substantial evidence and appropriately found that plaintiff

could perform medium work. (ECF No. 20, Def. Mem.) Plaintiff

submitted a reply memorandum, asserting again that plaintiff

lacks the capacity to perform medium work due to tremor

disorder, plaintiff’s history of bilateral shoulder surgery, and

the need to avoid overhead activities due to his arthritis.

(ECF No. 21, Pl. Reply.)

For the reasons set forth below, the court finds that

the ALJ’s decision was not supported by substantial evidence.

Thus, the court orders a remand for further findings on these

grounds.

I. The ALJ’s Disability Determination

Using the five-step sequential process mandated by 20

C.F.R. § 416.971 to determine whether plaintiff is disabled, the

ALJ determined at step one that plaintiff had engaged in

substantial gainful activity during the third and fourth

quarters of 2016 when he worked at Bellview shelter for six

months. (Tr. 18.) The ALJ concluded, however, that there had

been a continuous 12-month period during which plaintiff did not

engage in substantial gainful activity. (Tr. 19.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of anemia, bilateral shoulder internal

derangement, unspecified tremor, depressed mood, and substance

abuse. (Id.) The ALJ also considered that plaintiff had pre-

diabetes, latent tuberculosis and lipoma of the axilla, but

found those conditions were not severe impairments because

plaintiff did not complain of those problems and there was no

evidence that they caused any vocational limitations. (Id.)

At step three, the ALJ determined that plaintiff did

not have an impairment or combination of impairments that meets

or medically equals the severity of one of the listed

impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 (20

C.F.R. §§ 416.920(d), 416.925 and 416.926). (Id.) Specific

consideration was given to listing 1.02 (major dysfunction of a

joint due to any cause). The ALJ concluded that the record did

not establish the inability to perform fine and gross movements

effectively. (Id.) Specifically, the ALJ found that

plaintiff’s hand and finger dexterity was found to be intact

with grip strength and upper and lower extremities strength all

scored 5/5. (Id.) Further, the ALJ found that plaintiff’s

mental impairment did not meet or medically equal the criteria

of listing 12.04. (Id.)

At step four, the ALJ found that plaintiff had the RFC

to perform medium work with some additional restrictions. (Tr.

20.) Specifically, the ALJ found that plaintiff could

“lift/carry 50 pounds occasionally and 25 pounds frequently;

stand/walk 6 hours and sit 6 hours in an 8-hour workday; and,

can follow simple instructions, do simple tasks, and do some

detailed tasks.” (Id.) In arriving at this RFC, the ALJ stated

that she “considered all symptoms and the extent to which these

symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence” and “also

considered opinion evidence.” (Id.) The ALJ found that though

plaintiff’s “medically determinable impairments could reasonably

be expected to cause some symptoms[,] the evidence generally

does not support [plaintiff’s] alleged loss of functioning to

the degree a finding of complete disability is appropriate.”

(Id.) With respect to plaintiff’s mental health, the ALJ noted

that plaintiff reported a “brief” period of depression in 2015,

but the mental status examination and treatment notes from that

period also revealed that plaintiff was “alert to person, place,

time and situation and [had] good concentration, good fund of

knowledge, good short-term recall, good insight, good impulse

control, good recall/retention, good long-term recall, good

intellectual functioning, good judgment, and good ability to

abstract.” (Id.)

At step five, the ALJ found that plaintiff was capable

of performing work that was available in the national economy.

Specifically, the ALJ found that plaintiff’s “non-exertional

impairments allows [sic] him to perform the full range of

unskilled medium work, thereby allowing the direct application

of the Medical-Vocational Rules. Accordingly, considering the

claimant’s age, education, and work experience, a finding of

‘not disabled’ is directed by Medical-Vocational Rule 203.18

despite the presence of non-exertional limitations.” (Tr. 23.)

Thus, the ALJ concluded that plaintiff was not disabled within

the meaning of the Act, as defined in 20 C.F.R. § 416.920(g),

since October 1, 2014 through the date of the hearing. (Id.)

II. The ALJ’s Decision Was Not Supported by Substantial

Evidence and Incorrectly Concluded that Plaintiff Could

Perform Medium Work in the Economy

To support her findings that the record did not

support a finding that plaintiff suffered from disabling

limitations, the ALJ referred to a number of facts reflected in

the record and drew various inferences from them. (See Tr. 20-

22.) The ALJ concluded that “the claimant’s medically

determinable impairments could reasonably be expected to cause

some symptoms; however, the evidence generally does not support

the claimant’s alleged loss of functioning to the degree a

finding of complete disability is appropriate.” The ALJ relied

on evidence that, on one occasion, “the examiner did not notice

any hand tremors” and plaintiff’s grip strength was 5/5. (Tr.

21, 333-37.) The ALJ failed to mention, however, that on

numerous other occasions, it was noted by medical providers that

plaintiff had “uncontrollable” hand tremors. (See, e.g., Tr.

339.)

The ALJ determined that, subject to certain

limitations, plaintiff had the RFC to perform medium work and,

therefore, was not disabled under the Act. 20 C.F.R. §

404.1567(c) (defining “medium work”). Under Social Security

regulations, “medium work involves lifting no more than 50

pounds at a time with frequent lifting or carrying of objects

weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). For medium

work, a claimant must be able to “frequent[ly] lift[] or carry[]

objects weighing up to 25 pounds” and lift “no more than 50

pounds.” Id. Plaintiff asserts that he is unable “to meet the

grasping, holding, and turning demands of medium work.” (ECF

No. 18, Pl. Mem.) The ALJ noted that, although plaintiff

suffered from hand tremors, he was prescribed Propranolol, which

helped with the symptoms. (Tr. 21, 133.) The ALJ selectively

cited parts of the record where plaintiff reported that

Propranolol was effective, (see Tr. 349, 357), however, there

were numerous other instances in the record where plaintiff

reported that the medication was not effective in reducing his

tremors. (Tr. 339, 364, 398, 423.)

The ALJ also ignored parts of the record, wherein

plaintiff reported that the tremors prevented him from using a

fork, eating cereal, or holding a glass. (Tr. 125, 134.) The

ALJ also overlooked a statement written by the SSA claims

representative that plaintiff had difficulty writing because he

was “visibly trembling and could not complete the paper 3368

[forms] because of his tremors.” Furthermore, “[e]ven when

separating the documents he wanted to present, [plaintiff] had

extreme difficulties.” (Tr. 253.)

Additionally, the ALJ incorrectly concluded that

plaintiff could lift up to 50 pounds due to the following

testimony at the hearing:

ALJ: And what about lifting?

Plaintiff: I don’t, I can’t lift too much. Say like

maybe 25 or 50 pounds. Nothing over.

(Tr. 127.) The ALJ failed to mention, however, that later

during the hearing, plaintiff testified that he could not lift

25 to 50 pounds consistently throughout the day, and would only

be able to carry a gallon of milk, which weighs approximately

eight to nine pounds, two or three blocks before his shoulder

pain started to bother him. (Tr. 135-36.)

Incidentally, one of the main criteria of performing

medium work is the ability to frequently lift 25 pounds. 20

C.F.R. § 404.1567(c). Here, the record reflects that plaintiff

did not have the capacity to do so frequently, and the ALJ

committed legal error in crediting certain parts of the record

and not others, without explanation.

The ALJ also credits parts of Dr. Trimba’s opinion

while discounting other parts, without an adequate explanation.

For instance, the ALJ notes that Dr. Trimba reported “decreased

(but symmetrical) range of motion in [plaintiff’s] bilateral

shoulder,” but assigned little weight to Dr. Trimba’s opinion,

which found that plaintiff “has moderate limitations in his

ability to climb steps, push, pull, or carry heavy objects.”

(Tr. 337.) Dr. Trimba further opined that plaintiff “should

avoid overhead activities with his bilateral shoulders.” (Id.)

In assigning Dr. Trimba’s opinion little weight, (Tr. 22), the

ALJ did so in conclusory fashion, generally citing lengthy,

multipage exhibits, without referencing which pages or portions

of the record supported her findings. (Tr. 20-22.)

Based on substantial evidence of plaintiff’s

involuntary tremors, which were not reliably controlled with

medication, as well as evidence of plaintiff’s shoulder pain

that restricted his overhead movement, the court finds that the

ALJ cherry-picked parts of the medical evidence that supported

her conclusion, while overlooking the parts of the evidence that

contradicted her findings. See Artinian v. Berryhill, No. 16-

cv4404, 2018 WL 401186, at *8 (E.D.N.Y. Jan. 12, 2018) (“Federal

courts reviewing administrative social security decisions decry

‘cherry picking’ of relevan[t] evidence, which may be defined as

inappropriately crediting evidence that supports administrative

conclusions while disregarding differing evidence from the same

source.”) (collecting cases); Genier v. Astrue, 606 F.3d 46, 50

(2d Cir. 2010).

Additionally, when the ALJ posed a hypothetical to the

VE, involving an individual who could only occasionally handle

and finger, the VE stated that such an individual would not be

capable of medium work because “[h]andling is critical.” (Tr.

143-44.) The ALJ did not ask the VE whether medium work jobs

existed in the national economy for an individual who had the

exertional limitations and tremors that plaintiff has noted.

The ALJ did not adequately explain her findings that plaintiff

nevertheless could perform medium work.

Because the court is “unable to fathom the ALJ’s

rationale in relation to the evidence in the record,” the court

remands for further findings and a clearer justification for the

ALJ’s decision. Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.

1982). Here, the ALJ did not give any reason at all for the

selective cherry-picking of the record. See Clarke v. Colvin,

No. 15-cv-354, 2017 WL 1215362, at *9 (S.D.N.Y. Apr. 3, 2017)

(quoting Rodriguez v. Astrue, No. 07-cv-534, 2009 WL 637154, at

*25 (S.D.N.Y. Mar. 9, 2009) (An “ALJ may not ‘pick and choose

evidence which favors a finding that the claimant is not

disabled.’”).

On remand, the ALJ should consider and discuss the

whole record when determining whether plaintiff has the capacity

to perform medium work. Specifically, the ALJ should consider

whether plaintiff’s tremors and shoulder pain impose a

significant work-related limitation.

CONCLUSION

Federal regulations explicitly authorize a court, when

reviewing decisions of the SSA, to order further proceedings

when appropriate. “The court shall have power to enter, upon

the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is warranted

where “there are gaps in the administrative record or the ALJ

has applied an improper legal standard.” Rosa v. Callahan, 168

F.3d 72, 82–83 (2d Cir. 1999) (quoting Pratts, 94 F.3d 34, 39)

(internal quotation marks omitted). Remand is particularly

appropriate where further findings or explanation will clarify

the rationale for the ALJ’s decision. Pratts, 94 F.3d at 39.

If, however, the record before the court provides “persuasive

proof of disability and a remand for further evidentiary

proceedings would serve no purpose,” the court may reverse and

remand solely for the calculation and payment of benefits. See,

e.g., Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Kane

v. Astrue, 942 F. Supp. 2d 301, 314 (E.D.N.Y. 2013).

For the foregoing reasons, the court GRANTS

plaintiff’s motion for judgment on the pleadings; DENIES

defendant’s cross-motion for judgment on the pleadings; and

remands this case for further proceedings consistent with this

Memorandum and Order. The Clerk of Court is respectfully

directed to enter judgment in favor of plaintiff and close this

case.

SO ORDERED.

DATED: July 23, 2020

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge