# Ramirez v. Commissioner of Social Security

> District Court, E.D. New York · September 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10308441

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308441

## How later opinions describe it (automated extraction)

- noting that the ALJ must “explicitly consider” factors
- discussing the treating physician rule
- noting that failure “to provide good reasons for not crediting the opinion of a claimant’s treating physician is a ground for remand” (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998))

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
HAYDEE A. RAMIREZ f/k/a HAYDEE A.
GARCIA,

Plaintiff, MEMORANDUM & ORDER
20-CV-4073 (MKB)
v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
---------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiff Haydee A. Ramirez, formerly known as Haydee A. Garcia, commenced the
above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) denying her claim
for Social Security disability insurance benefits (“DIB”) under the Social Security Act (the
“SSA”). (Compl., Docket Entry No. 1.) Plaintiff moves for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that Administrative Law Judge
Brien Horan (the “ALJ”) committed error in his determination that Plaintiff is not entitled to DIB
under Title II of the SSA because his assessment that she was not disabled was not supported by
substantial evidence and he failed to properly evaluate her subjective complaints. (Pl.’s Mot. for
J. on the Pleadings (“Pl.’s Mot.”), Docket Entry No. 19; Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s
Mem.”) 1, annexed to Pl.’s Mot., Docket Entry No. 19-1.) The Commissioner cross-moves for
judgment on the pleadings, arguing that substantial evidence supported the ALJ’s findings and
that the ALJ properly evaluated Plaintiff’s subjective complaints. (Comm’r’s Mot. for J. on the
Pleadings (“Comm’r’s Mot.”), Docket Entry No. 17; Comm’r’s Mem. in Supp. of Comm’r’s
Mot. (“Comm’r’s Mem.”) 1, annexed to Comm’r’s Mot., Docket Entry No. 17-1.)
For the reasons set forth below, the Court grants Plaintiff’s motion and denies the
Commissioner’s cross-motion.

I. Background
Plaintiff was born in 1964. (Certified Admin. R. (“R.”) 21, Docket Entry No. 12.)
Plaintiff has a high school education, (R. 191), and worked at an airline for almost thirty years,
the last fifteen of which she spent as a customer service representative and gate attendant, (R.
39–40).
On December 12, 2016, Plaintiff applied for DIB, alleging that she has suffered from a
disability since September 9, 2015, when she was fifty-one years old. (R. 13, 156–57.) In her
disability report, Plaintiff alleged disability due to back and neck problems and bilateral carpal
tunnel syndrome. (R. 156, 190.) On March 17, 2017, the Social Security Administration denied
Plaintiff’s claim, and Plaintiff subsequently requested a hearing. (R. 66–74, 106–07.) On May

13, 2019, Plaintiff appeared with an attorney and testified before the ALJ. (R. 28–65.) By
decision dated June 5, 2019, the ALJ determined that Plaintiff was not disabled from September
9, 2015, Plaintiff’s alleged onset date, through the date of the decision. (R. 10–22.) On June 29,
2020, the Social Security Administration Appeals Council denied Plaintiff’s request for review
of the ALJ’s determination, rendering his decision final. (R. 1–4.) Plaintiff timely appealed to
this Court. (See Compl.)
a. Hearing before the ALJ
At the May 13, 2019 administrative hearing, Plaintiff testified that while she initially
worked as a baggage clerk, the airline reassigned her after spinal surgery to a customer service
role, which required her to use both hands to open and close heavy doors and frequently check or
carry luggage from the boarding gate to the plane. (R. 39–42.) Plaintiff experiences burning and
tingling in both hands like “pins and needles.” (R. 43.) She also experiences hand weakness and
frequently drops things. (R. 43.) Plaintiff’s doctor instructed her to wear wrist bands to combat

the pain and weakness in her arms. (R. 44.) Plaintiff has pain radiating from her neck into her
arms, and she cannot lift heavy items. (R. 44–45.) She has neck and back pain during humid
rainy weather. (R. 44.) She also has back pain radiating down into her legs, which become
numb if she walks for one hour. (R. 44–45.) She can only stand for fifteen minutes or less, and
she cannot ride a bicycle because she cannot properly grasp the handles. (R. 45–46.) Although
surgical procedures eased some of the pain, Plaintiff still experiences tingling in both hands. (R.
52.) She drops silverware and plates and has since substituted them with disposable plastic
wares. (R. 48.) Plaintiff did not receive treatment after 2018 because her worker’s
compensation benefits ended. (R. 54.) Plaintiff uses hot and cold compresses rather than pain
medication, (R. 48), and lies down to rest two to three times per day, (R. 49).

The vocational expert Joseph Goodman (the “VE”) testified that an individual with
Plaintiff’s age, education, and past work experience, and with a full range of light work except
frequent balancing, stooping, kneeling, crouching, crawling and climbing ramps and stairs, no
climbing of ladders, ropes and scaffolds, frequent pushing and pulling with the right upper
extremity, frequent handling and fingering with the bilateral upper extremity, and occasional
exposure to humidity, could perform Plaintiff’s past work as a customer service representative/
gate attendant if it did not include exposure to extreme cold and heat. (R. 55–56.) The VE also
identified other unskilled light and sedentary work that the individual could perform, such as
extrusion operator, sub assembler, and sorter. (R. 57, 60.) If such an individual were limited to
occasional handling and fingering with the bilateral hands, there would be no past work, nor any
light work, but there would be available sedentary work such as a surveillance system monitor or
call-out operator, (R. 56–60), and if limited to less than occasional fingering and handling with
the bilateral hands, there would be no work, (R. 63). In addition, if such an individual were

absent two or more days per month or were off task more than ten percent of the workday due to
pain issues, there would be no work. (R. 60–61.)
b. Function report
In a written function report dated January 18, 2017, Plaintiff stated that she needed
assistance getting dressed depending on the clothing, her daughter helped her bathe and perform
hair care, and she had difficulty using a knife when feeding herself. (R. 200.) Plaintiff’s
daughter did the shopping and prepared her food, but Plaintiff could make her bed and perform
light household chores. (R. 201–02.) Plaintiff could not lift due to hand pain and lack of
strength, and standing and walking caused leg cramping such that she could walk one mile
before requiring rest. (R. 204–05.) Plaintiff took over-the-counter pain medication that relieved

her pain within twenty minutes and that lasted for a few hours. (R. 207.) Plaintiff did not have
any issues paying attention, finishing tasks, or following written or verbal instructions. (R. 205–
06.) She drove, ventured out alone, went to church, read, ate, and slept. (R. 199, 202–03.)
c. The ALJ’s decision
The ALJ conducted the five-step sequential analysis required by the SSA.1 20 C.F.R.
§ 416.920(a). At step one, the ALJ found that Plaintiff has not engaged in substantial gainful

1 The five-step sequential process outlined by the SSA considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
activity since September 9, 2015, the alleged disability onset date. (R. 15.) At step two, he
found that Plaintiff has the severe impairments of major joints disfunction and spine disorder.
(R. 15.) At step three, he found that Plaintiff’s impairments do not meet or medically equal the
severity of any of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.

(R. 15–16.) At step four, he concluded that Plaintiff has the residual functional capacity (“RFC”)
to perform light work except “(1) frequent balancing, stooping, kneeling, crouching, crawling
and climbing of ramps or stairs and no climbing of ladders, ropes or scaffolds; (2) frequent
pushing and pulling with the right upper extremity; and (3) no more than frequent handling and
fingering with the bilateral upper extremities.” (R. 16.) The ALJ found that, given this
assessment, Plaintiff retains the RFC to perform past relevant work as a gate attendant, as well as
serve in other sedentary roles including surveillance system monitor and call-out operator, which
require skills acquired in the claimant’s past relevant work but no additional skills. (R. 20–21.)
Accordingly, the ALJ concluded that Plaintiff was “not disabled.” (R. 21.)
II. Discussion

a. Standard of review
“In reviewing a final decision of the Commissioner, a district court must determine
whether the correct legal standards were applied and whether substantial evidence supports the
decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (citing Machadio v. Apfel, 276

equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a ‘residual functional capacity’
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the
claimant can perform given the claimant’s residual functional
capacity, age, education, and work experience.
Demars v. Comm’r of Soc. Sec., 841 F. App’x 258, 260–61 (2d Cir. 2021) (quoting Estrella v.
Berryhill, 925 F.3d 90, 94 (2d Cir. 2019)).
F.3d 103, 108 (2d Cir. 2002)), as amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005); see
also Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (per curiam). “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.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir.

2020) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Once an ALJ finds facts, the
court “can reject those facts only if a reasonable factfinder would have to conclude otherwise.”
Talyosef v. Saul, 848 F. App’x 47, 48 (2d Cir. 2021) (quoting Brault v. Soc. Sec. Admin., 683
F.3d 443, 448 (2d Cir. 2012)). In deciding whether substantial evidence exists, the court will
“defer to the Commissioner’s resolution of conflicting evidence.” Smith v. Berryhill, 740 F.
App’x 721, 726 (2d Cir. 2018) (quoting Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.
2012)). If, however, the Commissioner’s decision is not supported by substantial evidence or is
based on legal error, a court may set aside the Commissioner’s decision. See Ewen v. Saul, No.
19-CV-9394, 2021 WL 1143288, at *11 (S.D.N.Y. Mar. 23, 2021) (citing Moran, 569 F.3d at
112); see also Prince v. Astrue, 514 F. App’x 18, 19–20 (2d Cir. 2013) (citing Burgess v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008)).
b. The ALJ failed to properly weigh the opinion evidence
Plaintiff argues that the ALJ’s step-four finding is not supported by substantial evidence
because he failed to properly weigh the opinion evidence. (Pl.’s Mem. 11.) In support, Plaintiff
contends that the ALJ provided no specific reasons nor explanation for why the opinions of
orthopedic surgeon Mitchell Keschner, M.D., were “not incorporated into the RFC,” (id. at 13),
and if the ALJ implicitly disregarded Dr. Keschner’s opinions, then the finding disregards Dr.
Keschner’s post-operative statements and objective findings of manipulative and exertional
limitations, (id. at 14). Plaintiff also contends that the ALJ did not provide any explanation or
cite to any particular treatment records in rejecting the opinion of consultative examiner Syeda
Asad, M.D., regarding Plaintiff’s manipulative limitations. (Id. at 17.) In addition, Plaintiff
argues that the ALJ failed to properly evaluate Plaintiff’s subjective complaints. (Id. at 19–23.)
The Commissioner argues that substantial evidence supports the ALJ’s RFC finding

because the ALJ implicitly rejected Dr. Keschner’s opinion when he examined “subsequent
evidence reflecting post-surgical treatment, examination findings, and additional medical
opinions more probative of Plaintiff[’s] functional limitations and abilities after surgical
intervention.” (Comm’r’s Mem. 12.) The Commissioner also contends that the ALJ properly
discussed medical findings and opinions by Dr. Asad. (Id. at 13.) Finally, the Commissioner
argues that the ALJ properly assessed Plaintiff’s subjective complaints and properly found them
“not entirely consistent with the medical and other evidence.” (Id. at 16.)
“[A] treating physician’s statement that the claimant is disabled cannot itself be
determinative.” Micheli v. Astrue, 501 F. App’x 26, 28 (2d Cir. 2012) (quoting Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999)); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)

(same). However, an ALJ “must follow” specific procedures “in determining the appropriate
weight to assign a treating physician’s opinion.”2 Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019); see also Ferraro v. Saul, 806 F. App’x 13, 14 (2d Cir. 2020) (holding that “[u]nder

2 On January 18, 2017, the Social Security Administration published a final rule that
changed the protocol for evaluating medical opinion evidence. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (codified at 20
C.F.R. §§ 404 & 416). The “new regulations apply only to claims filed on or after March 27,
2017.” Smith v. Comm’r of Soc. Sec., 731 F. App’x 28, 30 n.1 (2d Cir. 2018). Because
Plaintiff’s claim was filed prior to that date, the Court refers to versions of the regulations that
were in effect prior to March 27, 2017. See White v. Berryhill, No. 17-CV-4524, 2018 WL
4783974, at *4 n.4 (E.D.N.Y. Sept. 30, 2018) (“While the Act was amended effective March 27,
2017, the [c]ourt reviews the ALJ’s decision under the earlier regulations because the
[p]laintiff’s application was filed before the new regulations went into effect.”).
Second Circuit precedent and the applicable regulations,” the ALJ must follow the two-step
procedure laid out in Estrella to determine the appropriate weight to assign to the opinion of a
treating physician). “First, the ALJ must decide whether the opinion is entitled to controlling
weight.” Estrella, 925 F.3d at 95. “[T]he opinion of a claimant’s treating physician as to the

nature and severity of [an] impairment is given ‘controlling weight’ so long as it ‘is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” Id. (alterations in original)
(quoting Burgess, 537 F.3d at 128); see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015)
(discussing the treating physician rule); Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011)
(“The opinion of a treating physician is accorded extra weight because the continuity of
treatment he provides and the doctor/patient relationship he develops place[s] him in a unique
position to make a complete and accurate diagnosis of his patient.” (quoting Mongeur v. Heckler,
722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam))).
“Second, if the ALJ decides the opinion is not entitled to controlling weight, it must

determine how much weight, if any, to give it.” Estrella, 925 F.3d at 95. In deciding how much
weight to assign to the opinion, the ALJ “must ‘explicitly consider’ the following, nonexclusive
‘Burgess factors’: ‘(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining
medical evidence; and (4) whether the physician is a specialist.’” Id. at 95–96 (alteration in
original) (quoting Selian, 708 F.3d at 418); see also Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004) (per curiam) (citing 20 C.F.R. § 404.1527(d)(2)) (discussing the factors). “At both
steps, the ALJ must ‘give good reasons . . . for the weight [it gives the] treating source’s
[medical] opinion.’” Estrella, 925 F.3d at 96 (alterations in original) (quoting Halloran, 362
F.3d at 32). “An ALJ’s failure to ‘explicitly’ apply the Burgess factors when assigning weight at
step two is a procedural error.” Id. (quoting Selian, 708 F.3d at 419–20). “If ‘the Commissioner
has not [otherwise] provided ‘good reasons’ [for its weight assignment],’” the district court is
unable to conclude that the procedural error is harmless, and remand is therefore appropriate, so

that the ALJ can “comprehensively set forth [its] reasons.” Id. (alterations in original) (quoting
Halloran, 362 F.3d at 33); see also Sanders v. Comm’r of Soc. Sec., 506 F. App’x 74, 77 (2d Cir.
2012) (noting that failure “to provide good reasons for not crediting the opinion of a claimant’s
treating physician is a ground for remand” (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.
1998))); Halloran, 362 F.3d at 32–33 (“We do not hesitate to remand when the Commissioner
has not provided ‘good reasons’ for the weight given to a treating physician[’]s opinion . . . .”).
However, if a “searching review of the record” assures the court that the “substance of the
treating physician rule was not traversed,” the court will affirm. Estrella, 925 F.3d at 96
(quoting Halloran, 362 F.3d at 32).
Because the ALJ failed to explain why he did not assign any weight to Dr. Keschner’s

opinion, the ALJ violated the treating physician rule. Plaintiff met with Dr. Keschner on no less
than ten separate occasions between September of 2016 and April of 2017, and during these
visits Dr. Keschner performed four separate surgeries, including bilateral carpal tunnel release
procedures and right and left trigger thumb release procedures, as well as five physical
examinations, post-surgical examinations, and prepared a medical source statement.3 See
Fontanez v. Colvin, No. 16-CV-1300, 2017 WL 4334127, at *18 (E.D.N.Y. Sept. 28, 2017)
(finding that a physician the plaintiff “regularly met with . . . for numerous psychotherapy
sessions” was a treating physician). During these meetings, Plaintiff repeatedly complained of

3 (R. 328–29, 331, 372–73, 380–83, 398–401, 412–13, 440–45, 447–48.)
numbness and tingling in her hands, thumbs, and fingers, and Dr. Keschner noted on at least five
occasions that Plaintiff experienced limited wrist extension and flexion, tenderness to palpation
of the thumb CMC joint, decreased sensation to touch at the wrist nerve, and inability to flex the
IP joint. (See R. 329–30, 387, 399, 442–43, 448, 451, 455.) In a Medical Source Statement

(“MSS”) dated January 13, 2017, Dr. Keschner stated that Plaintiff is likely to be “off task”
approximately ten percent of the day. (R. 372.) Dr. Keschner also noted that, during flare ups,
which are rare, Plaintiff has no ability to work in a competitive work environment; could walk a
half mile; could sit or stand for two hours at a time for a total of four hours per day; could not
lift; could bend, stoop and balance occasionally; could never complete fine or gross manipulation
with either hand or fingers on either hand; could occasionally reach out and reach overhead with
both arms; and rarely needed to rest. (R. 373.) However, the ALJ did not attempt to make any
determination as to whether Dr. Keschner’s opinion was entitled to controlling weight. (See R.
16–20.) Nor did he explicitly consider the Burgess factors to determine how much weight
should be assigned to the opinion or the reasons for any weight assignment. (See id.) Because

the ALJ must explicitly consider the otherwise valid opinion of a treating source, the ALJ failed
to comply with the treating physician rule, and therefore committed a procedural error. See
Ferraro, 806 F. App’x at 15 (holding that the ALJ failed to apply the Burgess factors or
otherwise provide “good reasons” for assigning a reduced weight because “merely
acknowledging the existence of treatment relationships is not the same as explicitly considering
‘the frequency, length, nature, and extent of treatment’” (quoting Estrella, 925 F.3d at 95));
Hornyak v. Saul, No. 18-CV-1950, 2020 WL 1910129, at *13 (D. Conn. Apr. 20, 2020) (“In his
decision, the ALJ failed to specify the weight he assigned to [the] treating physicians. . . . [and]
[f]ailure to do so is legal error.” (citing Dailey v. Barnhart, 277 F. Supp. 2d 226, 235 (W.D.N.Y.
2003))); Rivera v. Berryhill, No. 17-CV-991, 2018 WL 4328203, at *14–15 (S.D.N.Y. Sept. 11,
2018) (“Although the ALJ mentioned a few of [the treating physician’s] findings, his failure to
state expressly what weight, if any, he gave to them provides a separate basis for remand.” (first
citing McClean v. Astrue, 650 F. Supp. 2d 223, 228 (E.D.N.Y. 2009); and then citing Crothers v.

Colvin, No. 13-CV-4060, 2015 WL 1190167, at *2 (S.D.N.Y. Mar. 16, 2015))); Fontanez, 2017
WL 4334127, at *18 (“By failing to assign any weight to [the plaintiff’s] treating psychiatrist . .
. and by implicitly rejecting [his] diagnoses without providing any reasons for doing so, the ALJ
committed error that requires remand.” (collecting cases)); Crothers, 2015 WL 1190167, at *2
(remanding where the ALJ failed to assign any weight to the plaintiff’s treating physician’s
report); Dailey, 277 F. Supp. 2d at 235 (“The ALJ simply does not articulate the reasons for the
weight he assigned, if any, to the opinions of [the treating physicians]. This lapse alone
constitutes legal error and requires that the case be remanded.”).
The Commissioner’s assertion that while the ALJ did not specifically weigh Dr.
Keschner’s pre-surgery opinion, he did so implicitly by discussing evidence reflecting post-

surgical treatment, examination findings, and additional medical opinions, (see Comm’r’s Mem.
12), is insufficient to comply with the treating physician rule. The ALJ did not explicitly assign
weight to any component of Dr. Keschner’s opinion or provide an explanation for why no weight
was assigned under the Burgess factors. The ALJ’s “implicit” rejection of Dr. Keschner’s
opinion is insufficient. (Comm’r’s Mem. 12); see Ferraro, 806 F. App’x at 15 (“[M]erely
acknowledging the existence of treatment relationships is not the same as explicitly considering
‘the frequency, length, nature, and extent of treatment.’”); Estrella, 925 F.3d at 95 (noting that
the ALJ must “explicitly consider” factors). These assertions are also belied by the record. After
Dr. Keschner performed the bilateral carpal tunnel release procedures in October and November
of 2016, he noted on November 23, 2016, that Plaintiff’s left “wrist extension is [sixty-five]
degrees and flexion is [sixty] degrees” and right “wrist extension is [sixty] degrees and flexion is
[seventy-five] degrees,” “scar is tender to palpation,” “A1 pulley region of the thumb is tender,”
and “patient is unable to actively flex the IP joint,” (R. 330–31); and on January 4, 2017, that

Plaintiff’s left “wrist extension is [sixty] degrees and flexion is [sixty] degrees. . . . The thumb
CMC joint is tender to palpation” and right “wrist extension is [sixty] degrees and flexion is
[seventy] degrees . . . . The A1 pulley region of the thumb is tender. . . . The thumb CMC joint is
tender to palpation,” (R. 328–29). After Dr. Keschner performed locked right and left trigger
thumb release surgeries in March and April of 2017, respectively, he noted on April 5, 2017, that
Plaintiff displayed decreased range of motion of the right thumb MP and IP joints, tenderness to
the left thumb A1 pulley region, and decreased range of motion of the left thumb MP and IP
joints, (R. 444–45); and on April 24, 2017, that Plaintiff’s examination revealed residual range of
motion loss at the left thumb MP and IP joints, as well as in the right thumb MP and IP joints,
(R. 442–43).

Accordingly, because the ALJ failed to assign any weight to Dr. Keschner’s opinion or
provide an explanation as to why no weight was assigned, the ALJ failed to comply with the
treating physician rule.
c. The ALJ’s error was not harmless
The ALJ’s error in failing to assign weight to Dr. Keschner’s opinion was not harmless.
At the administrative hearing, the VE testified that an individual with Plaintiff’s age, education,
and the limitations assessed by the ALJ could perform Plaintiff’s past relevant work as a gate
attendant and serve in other sedentary roles including surveillance system monitor and call-out
operator, which require skills acquired in the claimant’s past relevant work but no additional
skills. (R. 21.) If such an individual were limited to less than occasional fingering and handling
with the bilateral hands, they could not perform any work. (R. 63.) In addition, if such an
individual were absent two or more days per month, or were off task more than ten percent of the
workday due to pain issues, they could not perform any work. (R. 60–61.) Because the ALJ

neither assigned any weight to Dr. Keschner’s medical opinion nor explained why no weight was
assigned, the Court cannot evaluate whether the ALJ properly determined Plaintiff’s capacity to
meet the fingering and handling limitations or properly evaluated whether Plaintiff could
perform any work depending on her need to be absent from work or off task as detailed by the
VE. Therefore, the ALJ’s error in discrediting the opinion of Plaintiff’s treating physician in this
regard was not harmless and requires remand. See Griffel v. Berryhill, No. 16-CV-1772, 2017
WL 4286254, at *10 (E.D.N.Y. Sept. 26, 2017) (holding that the ALJ’s failure to include a
treating physician’s uncontradicted opinion on the RFC determination was not harmless); see
also Lesterhuis, 805 F.3d at 88.4
Accordingly, because the ALJ’s violation of the treating physician rule was not harmless,

4 Because the Court finds that remand is proper on the basis that the ALJ erred in failing
to provide adequate justification for not crediting the opinion of Dr. Keschner, thereby failing to
abide by the treating physician rule, the Court does not address the arguments that the ALJ erred
by affording less weight to Dr. Asad’s opinion regarding Plaintiff’s manipulative limitations and
that the ALJ erred in disregarding Plaintiff’s hearing testimony. See Griffel v. Berryhill, No. 16-
CV-1772, 2017 WL 4286254, at *10 n.11 (E.D.N.Y. Sept. 26, 2017) (citing Foxman v.
Barnhart, 157 F. App’x 344, 347–48 (2d Cir. 2005)) (declining to address arguments presented
by the parties that were different from the bases underlying the Court’s decision to remand);
Christopher B. v. Saul, No. 19-CV-905, 2020 WL 5587266, at *20 (N.D.N.Y. Sept. 18, 2020)
(“[I]n light of the fact that the ALJ’s assessment of [the plaintiff’s] credibility is inextricably
intertwined with the ALJ’s evaluation of the treating physician, . . . the [c]ourt is unable to
conclude that the ALJ properly evaluated [the plaintiff’s] credibility.”); Daniel v. Astrue, No. 10-
CV-5397, 2012 WL 3537019, at *11 (E.D.N.Y. Aug. 14, 2012) (explaining that “[t]he ALJ’s
determination that [the plaintiff’s] allegations were inconsistent with the medical evidence was
tainted by the ALJ’s failure to properly evaluate the opinions of [the plaintiff’s] treating
physicians — a failure that would naturally have affected how the ALJ viewed the totality of the
medical evidence” (citing Sutherland v. Barnhart, 322 F. Supp. 2d 282, 291 (E.D.N.Y. 2004))).
the Court grants Plaintiff’s motion for remand. See Rodriguez v. Comm’r of Soc. Sec., No. 19-
CV-7062, 2021 WL 2219276, at *10–12 (E.D.N.Y. Mar. 29, 2021).
III. Conclusion
For the foregoing reasons, the Court grants Plaintiff’s motion for judgment on the

pleadings and denies the Commissioner’s cross-motion for judgment on the pleadings. The
Commissioner’s decision is vacated and this action is remanded for further administrative
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of Court is
directed to close this case.
Dated: September 12, 2022
Brooklyn, New York
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308441. Public record. Not legal advice.