Gonzalez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LIZETTE GONZALEZ,

Plaintiff,

-against- MEMORANDUM AND ORDER

19-CV-2848(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Lizette Gonzalez (“plaintiff”) appeals the

final decision of the Commissioner of the Social Security

Administration (“defendant” or the “Commissioner”), which found

that plaintiff was not disabled, and therefore not entitled to

disability insurance benefits under Title II of the Social

Security Act (the “Act”). Plaintiff and the Commissioner both

moved for judgment on the pleadings.

For the reasons herein, plaintiff’s motion for

judgment on the pleadings is GRANTED, the Commissioner’s motion

is DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order.

Background

The parties in this case have filed a joint

stipulation of facts that appear in the record, which the court

incorporates by reference. (See generally ECF No. 15-1, Joint

Stipulation of Facts (“Stip.”).) The court will briefly recount

the factual background here only to the extent such facts are

relevant to the parties’ pending motions.

On May 19, 2015, plaintiff went to the emergency room,

complaining of left shoulder and knee pain after falling out of

a car. (Id. at 4.) At the hospital, x-rays revealed minimal

subacromial osteophytosis, also known as “bone spurs.” (Id.)

On February 3, 2015, plaintiff began treatment with

Dr. Laximidhar Diwan, a board-certified physician, who observed

restrictions in plaintiff’s range of motion in both her cervical

spine and left shoulder. (Id.) More specifically, Dr. Diwan’s

examination notes revealed tenderness at the C4-C5 and C5-C6

levels in plaintiff’s spine, with a cervical range of motion in

all planes of 25 degrees (with 45 degrees being normal). (Id.)

Furthermore, Dr. Diwan noted tenderness in plaintiff’s left

shoulder, where flexion was 100 degrees (170 being normal) and

abduction was 100 degrees (180 being normal). (Id.) Dr. Diwan

referred plaintiff for an MRI of her left shoulder, which

revealed cuff tendinosis/tendonitis of the infraspinatus and

supraspinatus tendons. (Id. at 5.) Based on the February 2015

examination, Dr. Diwan opined that plaintiff was totally

disabled, and Dr. Diwan maintained that opinion over the course

of various examinations of plaintiff through January 13, 2016.

(Id. at 4-5.)

Beginning on June 29, 2015, plaintiff sought treatment

from Dr. Perry Drucker, a board-certified physician. (Id. at

5.) Dr. Drucker found tenderness in plaintiff’s shoulder and

reduced flexion, extension, abduction, and internal rotation

strength. (Id.) Dr. Drucker reaffirmed these findings in

August 2015 and September 2015. (Id. at 6.) On November 18,

2015, Dr. Drucker administered a steroid injection into

plaintiff’s shoulder. (Id.) Dr. Jack D’Angelo, a physician in

the same practice with Dr. Drucker, administered a trigger point

injection on February 16, 2016. (Id.) On December 6, 2017, Dr.

Drucker completed a Disability Impairment Questionnaire. (Id.)

He reported that he treated plaintiff monthly, between July 1,

2015 and December 6, 2017. (Id.) Dr. Drucker opined that

plaintiff was restricted to sitting for one to two hours in an

eight-hour workday, and standing or walking for one to two hours

in an eight-hour workday. (Id. at 7.) Dr. Drucker further

opined that plaintiff should never lift or carry more than five

pounds, and that plaintiff could never grasp, turn, or twist

objects with her left hand, never use her left hand or fingers

for fine manipulations, but could occasionally use her right

hand and fingers for fine manipulations and for reaching. (Id.)

Contemporaneous treatment notes showed tenderness in plaintiff’s

shoulder upon palpitation, reduced flexion, rotation, extension,

and strength in her left shoulder, and reduced flexion

extension, and rotation in her cervical spine. (Id.) Dr.

Drucker noted similar findings as of January 3, 2018. (Id.)

From March 2017 through November 2017, plaintiff

sought treatment from Dr. Mohammed Ibrahim. (Id.) Dr. Ibrahim

opined that plaintiff had limitations in terms of sitting,

standing, walking, lifting, and carrying; that she could never

use her arms for grasping, turning, twisting, or fine

manipulation; and could never use her left arm for reaching, but

could occasionally use her right arm for reaching. (Id. at 8.)

Dr. Ibrahim further opined that plaintiff would need to take

unscheduled thirty-minute breaks every hour, and would likely

miss work three times per month due to her impairments or

related treatments. (Id.)

Plaintiff first filed applications for Social Security

Disability and Supplemental Security Income benefits on October

8, 2015, with an alleged onset date of May 19, 2015 (i.e., the

date she first went to the emergency room). (Id. at 1.) On

November 24, 2015, Dr. Sujit Chakrabarti conducted a

consultative examination of plaintiff. (Id. at 8.) Dr.

Chakrabarti assessed a dislocated shoulder with possible

internal derangement of the left shoulder, but offered no

opinion regarding plaintiff’s functional limitations. (Id.)

Dr. Chakrabarti did not review any x-ray reports as part of the

examination. (Id.)

Plaintiff’s claim for benefits was denied, and on

January 13, 2016, plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”). (Id. at 1.) A hearing was

before ALJ Dina R. Loewy on February 1, 2018 in Jersey City, New

Jersey, at which plaintiff and a vocational expert testified.

(Id.) In a decision dated March 29, 2018, the ALJ found that

plaintiff was not disabled. (Id.) Thereafter, on March 19,

2019, the Appeals Council denied plaintiff’s request for review

of the ALJ’s decision, which rendered the ALJ’s decision the

final decision of the Commissioner. (Id. at 2.) This action in

federal court followed. (See generally ECF No. 1, Complaint.)

Standard of Review

A claimant must be “disabled” within the meaning of

the Act to receive disability benefits. See 42 U.S.C. §§

423(a), (d). A claimant qualifies as disabled when she 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 v. Chater, 221 F.3d 126,

131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do her previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A).

The regulations promulgated by the Commissioner set

forth a five-step sequential evaluation process for determining

whether a claimant meets the Act’s definition of disabled. See

20 C.F.R. § 404.1520. The Commissioner’s process is essentially

as follows:

[I]f the Commissioner determines (1) that the claimant

is not working, (2) that [s]he has a ‘severe impairment,’

(3) that the impairment is not one [listed in Appendix

1 of the regulations] that conclusively requires a

determination of disability, and (4) that the claimant

is not capable of continuing in [her] prior type of work,

the Commissioner must find [her] disabled if (5) there

is not another type of work the claimant can do.

Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003));

accord 20 C.F.R. § 404.1520(a)(4). If the ALJ determines that

the claimant is or is not disabled at any step, the analysis

stops.

“The claimant has the general burden of proving . . .

his or her case at steps one through four of the sequential

five-step framework established in the SSA regulations.”

Burgess, 537 F.3d at 128 (quotation and citations omitted).

“However, because a hearing on disability benefits is a

nonadversarial proceeding, the ALJ generally has an affirmative

obligation to develop the administrative record.” Id.

(quotation and alteration omitted). “The burden falls upon the

Commissioner at the fifth step of the disability evaluation

process to prove that the claimant, if unable to perform her

past relevant work [and considering his residual functional

capacity, age, education, and work experience], 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)). If

the Commissioner finds a combination of impairments, the

Commissioner must also consider whether “the combined effect of

all of [a claimant’s] impairment[s]” establish the claimant’s

eligibility for Social Security benefits. 20 C.F.R. §

404.1523(c); see also id. § 416.945(a)(2).

Unsuccessful claimants for disability benefits may

bring an action in federal court seeking judicial review of the

Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),

1383(c)(3). 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). Rather, “[a] district court may set aside the

Commissioner’s determination that a claimant is not disabled

only if the factual findings are not supported by ‘substantial

evidence’ or if the decision is based on legal error.’”

Burgess, 537 F.3d at 127 (quoting Shaw, 221 F.3d at 131

(citation omitted)). “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.’” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d

Cir. 2012) (citations omitted, emphasis in original). 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) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d

Cir. 1990) (second alteration in original)).

Discussion

I. The ALJ’s Decision

The ALJ in this matter followed the five-step

sequential process, as mandated by the Act’s implementing

regulations, to determine whether plaintiff was disabled.

At step one, the ALJ found that plaintiff had not

engaged in substantial gainful activity since May 19, 2015, the

alleged onset date. (ECF No. 16, Administrative Transcript

(“Tr.”), at 12.) At step two, the ALJ determined that plaintiff

had the following severe impairments: degenerative changes of

the left shoulder and degenerative disc disease of the cervical

spine. (Id.)

At step three, the ALJ determined that from the

alleged onset date in 2015 through the date of the decision,

plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of one of

the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.

at 13.) The ALJ found that plaintiff’s shoulder impairment did

not meet the criteria in listing 1.02(B) because there was no

evidence of significant limitation with regard to her right

shoulder. (Id.) Furthermore, the ALJ found that plaintiff’s

spine impairment did not meet the criteria in the listing

because the objective evidence in the record did not indicate

compromise of a nerve root. (Id.)

At step four, the ALJ concluded that the plaintiff was

unable to perform any of her past relevant work as a laundry

attendant, based on the vocational expert’s report that a person

with plaintiff’s residual functional capacity (“RFC”) could not

perform her past work. (Id. at 15.)

Furthermore, the ALJ determined that plaintiff had the

RFC to perform “light work,” as defined by the Act’s

regulations.1 (Id. at 13.) The ALJ determined that plaintiff

could perform “light work” with the following limitations: the

ability to lift and carry up to ten pounds; the ability to push

and pull less than ten pounds of force; the ability to

occasionally climb ramps and stairs; the inability to climb

ladders, ropes or scaffolds; the ability to occasionally balance

and stoop; the inability to kneel, crouch, or crawl; the ability

to occasionally reach with the left arm; the inability to reach

overhead with the left arm; the ability to occasionally handle

and finger and frequently feel; and the need to avoid all

exposure to hazardous machinery, unprotected heights, and

operational control of moving machinery. (Id.)

1 Under the regulations, 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.” 20

C.F.R. § 404.1567(b).

In reaching the RFC determination, the ALJ considered,

inter alia, the medical opinion evidence proffered by the three

treating physicians from whom plaintiff sought treatment (Dr.

Diwan, Dr. Drucker, and Dr. Ibrahim). (Id. at 14-15.) The ALJ

accorded “little weight” to Dr. Diwan’s “consistent[]” opinion

that plaintiff was totally disabled, finding it to be overly

broad given the moderate objective findings and range of motion

limitations. (Id. at 15.) The ALJ found that Dr. Diwan’s exam

notes appeared consistent with a finding that plaintiff could

lift and carry. (Id.) Furthermore, the ALJ found no support in

Dr. Diwan’s notes for limitations on sitting, standing, or

walking that might preclude light exertion. (Id.) The ALJ also

accorded “little weight” to the opinions of Dr. Drucker and Dr.

Ibrahim, finding that both opinions were inconsistent with the

record, and that, although plaintiff would be “significantly

limited in lifting and carrying,” the evidence did not support

Dr. Drucker’s and Dr. Ibrahim’s respective opinions that she had

significant limitations in sitting and standing or walking.

(Id.) Finally, the ALJ noted that Dr. Chakrabarti did not opine

on plaintiff’s functional limitations in connection with the

consultative examination. (Id.)

At step five, the ALJ concluded that there were jobs

that existed in significant numbers in the national economy that

plaintiff could perform despite her restrictions. (Id. at 16.)

The testifying vocational expert, supplied with the above

information, determined that plaintiff could perform the

requirements of representative occupations such as furniture

rental clerk, counter clerk, and surveillance system monitor.

(Id.) Accordingly, the ALJ found that plaintiff was not

“disabled,” and thus not entitled to benefits under the Act.

(Id. at 17.)

II. The ALJ Failed to Fill in the Gaps Before Assigning

“Little Weight” to the Opinions of Treating Physicians

Plaintiff contends that the ALJ failed to follow the

treating physician rule when weighing the medical opinion

evidence and that, as a result, the ALJ’s RFC determination was

not supported by substantial evidence. (See ECF No. 12,

Plaintiff’s Memorandum in Support, at 11-14.) The Commissioner

contends that the ALJ properly discounted the treating

physicians’ opinions, which were either unsupported or

inconsistent with evidence showing that certain of plaintiff’s

limitations were mild. (ECF No. 14, Defendant’s Memorandum in

Support, at 7-10.)

Under the regulations in place at the time plaintiff

filed her claim,2 the ALJ was to “defer ‘to the views of the

2 The Commissioner has revised its rules to eliminate the treating physician

rule, and ALJs are now to weigh all medical evaluations, regardless of their

sources, based on how well-supported they are, and their consistency with the

remainder of the record. See 20 C.F.R. §§ 404.1520b; 416.920c. Claims filed

before March 27, 2017, however, are still subject to the treating physician

rule. See id. § 404.1527(c)(2). Plaintiff filed her claim on October 8,

physician who has engaged in the primary treatment of the

claimant.’” Cichocki v. Astrue, 534 F. Appx. 71, 74 (2d Cir.

2013) (quoting Green–Younger, 335 F.3d at 106). “However, ‘[a]

treating physician’s statement that the claimant is disabled

cannot itself be determinative.’” Id. (quoting Snell v. Apfel,

177 F.3d 128, 133 (2d Cir. 1999)). “Rather, ‘a treating

source’s opinion on the issue(s) of the nature and severity of

[a claimant’s] impairment(s)’ will be given ‘controlling weight’

if the opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the

claimant’s] case record.’” Id. (quoting 20 C.F.R. §

404.1527(c)(2)).

“An ‘ALJ who refuses to accord controlling weight to

the medical opinion of a treating physician must consider

various factors to determine how much weight to give to the

opinion,’ including: ‘(i) the frequency of examination and the

length, nature and extent of the treatment relationship; (ii)

the evidence in support of the treating physician’s opinion;

(iii) the consistency of the opinion with the record as a whole;

(iv) whether the opinion is from a specialist; and (v) other

factors brought to the Social Security Administration’s

2015. Accordingly, the court applies the treating physician rule in the

instant case. See, e.g., Conetta v. Berryhill, 365 F. Supp. 3d 383, 395 n.5

(S.D.N.Y. 2019).

attention that tend to support or contradict the opinion.’” Id.

(quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).

“The ALJ must then ‘comprehensively set forth his reasons for

the weight assigned to a treating physician’s opinion.’” Id.

(quoting Burgess, 537 F.3d at 129). The regulations also

require that the ALJ “always give good reasons” in determining

the weight assigned to the claimant’s treating source’s opinion.

See 20 C.F.R. § 416.927(c)(2); see also Schaal v. Apfel, 134

F.3d 496, 503 (2d Cir. 1998). The ALJ is not required to cite

each factor explicitly in the decision but must apply the

substance of the rule. Halloran, 362 F.3d at 32.

Here, the ALJ accorded “little weight” to the opinion

of Dr. Diwan, a board-certified physician who treated plaintiff

over the course of three years. The ALJ found that Dr. Diwan’s

opinion that plaintiff was totally disabled was “overly broad

given the moderate objective findings and range of motion

limitations,” because Dr. Diwan’s “exam notes appear[ed]

consistent with a finding that [plaintiff] can lift and carry,”

and there was “no support in Dr. Diwan’s notes for limitations

on sitting, standing, or walking that would preclude light

exertion.” (Tr. at 15.)

The court agrees with the Commissioner that there was

little support in the record for plaintiff’s purported

limitations on sitting, standing, and walking. The record

indicates that issues with plaintiff’s spine were generally

considered “mild,” while the more severe limitations stemmed

from issues with her left shoulder. (See, e.g., id. at 291

(noting “[m]ild degenerative disk disease . . . in the thoracic

spine”).) Moreover, Dr. Diwan’s opinion that plaintiff was

totally disabled was conclusory, and not dispositive.

Contradictions in the record regarding Dr. Diwan’s observed

limitations on sitting, standing, and walking could provide a

sufficient basis upon which to accord less weight to the

opinion.

The existence of contradictions, however, do not end

the court’s inquiry. It is well-established that “an ALJ cannot

reject a treating physician’s diagnosis without first attempting

to fill any clear gaps in the administrative record.” Burgess,

537 F.3d at 129 (quoting Rosa v. Callahan, 168 F.3d 72, 79 (2d

Cir.1999)). Here, there appear to be significant gaps in the

record as to the limitations identified by the treating

physicians regarding plaintiff’s ability to sit and stand.

At a February 3, 2015 examination, Dr. Diwan noted

“tenderness in the C4-C5, C5-C6 levels” of plaintiff’s “cervical

spine.” (Tr. at 335.) Dr. Diwan further observed that

plaintiff’s spine had 25-degree ranges of motion in all planes

(with 45 degrees being normal). (Id.) There appears to be a

gap between Dr. Diwan’s opinion that plaintiff was totally

disabled, and that she was extremely limited in her ability to

sit and stand (which was supported in part by the limited range

of motion in her spine), and the other limited evidence in the

record that the limitations of her spine were “mild.” Before

rejecting Dr. Diwan’s opinion, the ALJ should first have

attempted to fill the gap created by the relatively limited

evidence in the record regarding plaintiff’s spine.

In addition to Dr. Diwan, Dr. Drucker, a board-

certified physician, and Dr. Ibrahim, a physical therapist, were

plaintiff’s treating physicians for three years and one year,

respectively. (Stip. at 5-8.) The ALJ accorded Dr. Drucker’s

and Dr. Ibrahim’s opinions “little weight,” finding that “even

though [plaintiff] would be significantly limited in lifting and

carrying due to her shoulder pain, the mild evidence regarding

her spine impairment d[id] not support the degree of limitation

of limitation in sitting, standing, and walking.” (Tr. at 15.)

Again, the evidence of plaintiff’s mild spine impairments could

provide a valid basis upon which to discount the physicians’

opinions. But the ALJ must first affirmatively attempt to fill

the gap.

Given the length of treatment by the treating

physicians, the ALJ should also consider whether something more

than “little weight” should be accorded to the treating

physicians’ opinions. See Harris v. Berryhill, No. 17-cv-3968,

2018 WL 3966237, at *1 (E.D.N.Y. Aug. 17, 2018) (treating

physicians’ assessments are “entitled to some extra weight, even

if contradicted by substantial evidence, because the treating

source is inherently more familiar with a claimant’s medical

condition than are other sources”) (quoting Jones v. Sullivan,

949 F.2d 57, 59 (2d Cir. 1991)).

Because there is no indication that the ALJ

affirmatively attempted to fill in the gaps in the record before

rejecting the opinions of treating physicians, the court cannot

find that the ALJ’s RFC determination was supported by

substantial evidence. Remand is warranted where “there are gaps

in the administrative record or the ALJ has applied an improper

legal standard.” Rosa, 168 F.3d at 82–83 (quoting Pratts v.

Charter, 94 F.3d 34, 39 (2d Cir. 1996)). Remand is particularly

appropriate where further findings or explanation will clarify

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

On remand, if the ALJ determines that the opinions of Dr. Diwan,

Dr. Drucker, and Dr. Ibrahim are entitled to less than

controlling weight, the ALJ must provide sufficiently “good

reasons” for discounting the evidence underlying their opinions,

and more thoroughly explain how the record evidence contradicts

their findings regarding plaintiff’s spine.

III. The ALJ Provided an Improper Hypothetical to the

Vocational Expert

The ALJ also erred by presenting a hypothetical to the

testifying vocational expert that presumed that plaintiff was

able to perform light work.

At the last step of the disability determination, the

Commissioner has the burden to prove that plaintiff is capable

of performing other jobs existing in significant numbers in the

national economy in light of plaintiff’s RFC, age, education,

and past relevant work. 20 C.F.R. §§ 416.920, 416.960. In

relying on a vocational expert’s testimony to satisfy this

burden, posing a “hypothetical question that does not present

the full extent of a claimant’s impairments cannot provide a

sound basis for vocational expert testimony.” Gray v. Astrue,

2009 WL 790942, at *14 (N.D.N.Y. Mar. 20, 2009); see also De

Leon v. Sec’y of Health & Human Servs., 734 F.2d 930, 936 (2d

Cir. 1984) (“In positing hypothetical questions to the

vocational consultant,” the ALJ must “present the full extent of

[the claimant’s] disabilities.”).

In this case, the ALJ posed hypothetical questions to

the vocational expert that were based on the premise that the

hypothetical claimant could perform “light work.” (Tr. at 54

(“I’m going to ask you to assume that [the hypothetical

claimant] can do light work.”).) Such a hypothetical failed to

incorporate the limitations observed by plaintiff’s treating

physicians, and which were also corroborated elsewhere in the

record. See Melligan v. Chater, 1996 WL 1015417, at *8

(W.D.N.Y. Nov. 14, 1996) (“In order to rely on a vocational

expert’s opinion: ‘the hypothetical question posed to a

vocational expert must fully set forth a claimant’s

impairments.’”) (quoting Totz v. Sullivan, 961 F.2d 727, 730

(8th Cir.1992)). While the ALJ did go on to note certain of

plaintiff’s limitations (see id. at 54-56), the presumption that

plaintiff could perform “light work” did not fully account for

all of the limitations in the record, and rendered the

hypothetical flawed from the outset. Indeed, the definition of

“light work” includes “frequent lifting or carrying of objects

weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). Even if

the ALJ properly rejected the medical opinions regarding

plaintiff’s spine, the limitations shown in her shoulder

suggested that she would likely not be able to “frequent[ly]”

lift or carry ten pounds.

The court recognizes that, later in the hypothetical,

the ALJ did note plaintiff’s inability to lift ten pounds. (See

Tr. at 54-55.) The court, however, cannot find that the

vocational expert’s testimony provided substantial support for

the ultimate conclusion that plaintiff could perform certain

kinds of work, because it was based on a hypothetical premised

on the unsupported assumption that plaintiff could perform

“light work.” The ALJ should have accounted for plaintiff’s

limitations without any reference to an ability to perform light

work in the hypothetical.

Conclusion

For the reasons stated above, plaintiff’s motion for

judgment on the pleadings is GRANTED, and defendant’s cross-

motion for judgment on the pleadings is DENIED. This action is

REMANDED 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: Brooklyn, New York

October 19, 2020

/s/

HON. KIYO A. MATSUMOTO

United States District Judge