Opinion
6:20-CV-06596 EAW
2022-03-22
STEVEN C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, Melissa Marie Kubiak, Law Offices of Kenneth Hiller, PLLC, Rochester, NY, for Plaintiff. Graham Morrison, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, Melissa Marie Kubiak, Law Offices of Kenneth Hiller, PLLC, Rochester, NY, for Plaintiff.
Graham Morrison, Social Security Administration Office of General Counsel, New York, NY, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Steven C. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 14; Dkt. 15), and Plaintiff's reply (Dkt. 17). For the reasons discussed below, Plaintiff's motion (Dkt. 14) is granted, the Commissioner's motion (Dkt. 15) is denied, and the matter is remanded to the Commissioner solely for the calculation and payment of benefits.
BACKGROUND
Plaintiff protectively filed his application for DIB on April 30, 2013. (Dkt. 13 at 101-02). In his application, Plaintiff alleged disability beginning September 2, 2012, due to the following impairments: chest pain; chronic obstructive pulmonary disease ; cluster headache ; degeneration of cervical intervertebral disc; depression; diabetes mellitus ; displacement of cervical intervertebral disc without myelopathy ; drug abuse; hypertension ; nicotine dependence; opiate dependence ; peripheral neuropathy ; psychiatric issues; and thyroid cyst. (Id. at 80-81, 93-94). Plaintiff's application was initially denied on July 30, 2013. (Id. at 124-28). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") John P. Costello in Rochester, New York, on March 9, 2015. (Id. at 63-79). On April 24, 2015, the ALJ issued an unfavorable decision. (Id. at 103-14). Plaintiff requested Appeals Council review; his request was granted on November 17, 2016, and the Appeals Council remanded the case to the ALJ. (Id. at 118-22).
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
The ALJ held a second hearing in Rochester, New York, on November 18, 2017. (Id. at 38-61). On February 26, 2018, the ALJ issued an unfavorable decision. (Id. at 13-26). Plaintiff appealed the decision to the United States District Court for the Western District of New York and on November 18, 2019, the parties stipulated that the case be remanded to the Commissioner for further administrative proceedings. (Id. at 1625-26). The Appeals Council remanded the case to ALJ Michael Devlin on December 20, 2019. (Id. at 1630-31).
On April 9, 2020, the ALJ held a teleconference hearing in Rochester, New York. (Id. at 1548-60). Plaintiff appeared by telephone. (Id. ). During the hearing, Plaintiff amended his alleged onset date to March 1, 2012. (Id. at 1529). The ALJ issued an unfavorable decision on April 29, 2020. (Id. at 1526-40). This action followed.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on September 30, 2012. (Dkt. 13 at 1531). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity from March 1, 2012, through his date last insured of September 30, 2012. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "diabetes mellitus with neuropathy ; degenerative disc disease in the cervical spine; cluster headaches; chronic obstructive pulmonary disease ; emphysema ; major depressive disorder ; and panic disorder with agoraphobia." (Id. at 1531-32). The ALJ further found that Plaintiff's medically determinable impairments of hypertension, optical issues, and a history of substance use disorder were non-severe. ( Id. at 1532). With respect to Plaintiff's representation that he suffered from right carpal tunnel syndrome, the ALJ concluded that this was not a medically determinable impairment. (Id. ).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. ). The ALJ particularly considered the criteria of Listings 1.02, 1.04, 3.02, 3.03, 9.00, 12.04, and 12.06 in reaching his conclusion. (Id. at 1532-34).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the additional limitations that Plaintiff:
occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk up to two hours in an eight hour day; sit about six hours in an eight hour day; occasionally push and/or pull 10 pounds; occasionally climb ramps and/or stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders/ropes/scaffolds; frequently reach, handle, and finger bilaterally; frequently turn the head to the left and to the right; avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and other respiratory irritants; avoid concentrated exposure to extreme cold and extreme heat; understand, remember, and carry out simple instructions and tasks; occasionally interact with co-workers and supervisors; little to no contact with the general public; able to work in a low stress work environment (i.e. no supervisory duties, no independent decision-making required, no strict production quotas, minimal changes in work routine and processes, etc.); and able to consistently maintain concentration and focus for up to two hours at a time.
(Id. at 1534). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 1538).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of table worker and addresser. (Id. at 1539). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 1540).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner for calculation and payment of benefits, arguing that (1) the ALJ failed to follow the Appeals Council's remand order relating to the assessment of the 2013 opinion offered by consultative examiner Harbinder Toor, M.D., and (2) remand for calculation and payment of benefits is warranted. (Dkt. 14-1 at 1, 14-22). As further explained below, the Court finds the ALJ failed to follow the Appeals Council's remand order relating to the assessment of Dr. Toor's opinion, and remand solely for calculation and payment of benefits is warranted.
A. The Appeals Council's Remand Order and Assessment of Dr. Toor's Opinion
The Commissioner's regulations require an ALJ considering a matter on remand to "take any action that is ordered by the Appeals Council[.]" 20 C.F.R. § 416.1477(b). "Accordingly, ‘an ALJ's failure to comply with the Appeals Council's order constitutes legal error, and necessitates a remand.’ " Tracy v. Colvin , No. 1:15-CV-00980 (MAT), 2017 WL 279556, at *2 (W.D.N.Y. Jan. 23, 2017) (alteration omitted) (quoting Scott v. Barnhart , 592 F. Supp. 2d 360, 371 (W.D.N.Y. 2009) ); see also King v. Colvin , No. 18-CV-6586-MJP, 2020 WL 1080411, at *3 (W.D.N.Y. Mar. 6, 2020) ("An [ALJ]’s failure to comply with the Appeals Council's remand order ... constitutes reversible error." (collecting cases)).
As explained above, on December 20, 2019, the Appeals Council remanded the case to the ALJ. The remand order contains the following instruction:
The hearing decision is not fully compliant with the November 17, 2016 Appeals Council remand order (Exhibit B6A). The Appeals Council previously remanded, in part, because in the prior decision the ALJ assigned "great weight" to the July 2013 opinion of examining physician Harbinder Toor, M.D. (Exhibit B10F), but without explanation did not adopt all of the limitations opined by Dr. Toor (Exhibit B6A, pages 3-4).
In the current decision, the ALJ assigned "significant weight" to the [July] 2013 opinion of Dr. Toor (Decision, pages 8-9), but again, without explanation, does not adopt all of the limitations opined by Dr. Toor. Specifically, Dr. Toor opined in part that the claimant has a moderate limitation with sitting for a long time (Exhibit B10F, page 4). This limitation is inconsistent with the claimant's "sedentary" residual functional capacity assessed in the decision, which does not include any limitations with the claimant's ability to sit and also does not contain a sit/stand option (Finding Number 5). However, the ALJ did not provide any rationale explaining why this portion of Dr. Toor's opinion is not accepted, and instead indicates that the opinion is consistent with the examination findings, is supported with explanation, and the opinion is consistent with the medical evidence of record (Decision, pages 8-9).
Therefore, further consideration of Dr. Toor's opinion is necessary.
(Dkt. 13 at 1630). The Appeals Council ordered that on remand, the ALJ should "[g]ive further consideration to the opinions from examining source Dr. Toor pursuant to the provisions of 20 CFR 404.1527, and explain the weight given to such opinion evidence," and also noted that the ALJ may "request the examining source provide additional evidence and/or further clarification of the opinions." (Id. at 1631).
Dr. Toor examined Plaintiff on July 15, 2013. (Id. at 510-14). Upon examination, Dr. Toor found that Plaintiff was in moderate pain. (Id. at 512). He had an abnormal gait and was slightly unsteady. (Id. ). He declined heel-to-toe walking and squatting. (Id. ). His stance was normal and he used no assistive devices, but he had difficulty changing for the examination, declined to lay down on the examination table, and had difficulty getting out of his chair. (Id. ). He had reduced range of motion in his cervical and lumbar spine, tingling and numbness in his legs, feet, arms, and hands, and tenderness in his extremities. (Id. at 512-13). As to the fine motor activity of his hands, Dr. Toor opined: "[h]and and finger dexterity is not intact bilaterally. Grip strength 3/5 bilaterally. He has moderate difficulty grasping, holding, writing, tying the shoelace, zipping the zipper, buttoning the button, manipulating the coin, or holding objects." (Id. at 513). His prognosis was guarded. (Id. ). Dr. Toor offered the following medical source statement:
He has moderate to severe limitations standing, walking. Pain interferes with his balance. He has moderate limitation sitting a long time. He has moderate limitation pushing, pulling, reaching, lifting, grasping, holding, writing, tying the shoelace, zipping the zipper, buttoning
the button, manipulating the coin, holding objects, or twisting of the cervical spine. Pain and headache can interfere with his physical routine sometimes with the balance.
(Id. ).
The ALJ discussed in the written determination his assessment of Dr. Toor's opinions:
The undersigned also considered Harbinder Toor, M.D.’s opinion from July 2013 that the claimant had moderate to severe limitations in his ability to stand and walk, in addition to having moderate limitations in his ability to sit for a long time, push, pull, reach, lift, grasp, write, perform manipulative tasks, hold objects, and twist his cervical spine. (Ex. B10F, p. 4). The undersigned gives this opinion significant weight because it is generally consistent with Dr. Toor's consultative examination findings and the totality of the medical evidence of record. (Ex. B10F, pgs. 1-4). In addition, in October 2012, Dr. Toor opined that the claimant retained the ability to perform a reduced range of sedentary work, but that he was very limited in his ability to walk, stand, and climb stairs for 1-2 hours and that he was moderately limited in his ability to push, pull, bend, see, hear, speak, and use his hands for 2-4 hours. (Ex. B14F, p. 4). Further, Dr. Toor opined that the claimant was unable to participate in any activities except for treatment or rehabilitation. (Ex. B14F, p. 5). The undersigned gives this opinion some weight because a sedentary exertion is supported by the claimant's combination of impairments and the totality of the medical evidence of record. (Ex. B2F, p. 7; B5F, p. 2; B15F, p. 58; B20F, p. 27; B23F, p. 6; B24F, p. 34). However, the undersigned gives the remainder of Dr. Toor's opinion less weight because it is too-restrictive, as the opined limitation that the claimant could walk and stand for 1-2 hours is not supported or consistent with treatment records, which reflect that the claimant ambulated with a normal gait without the use of an assistive device and that his stance was also normal. (Ex. B19F, pgs. 3, 27, 282; B23F, p. 37). In addition, the opined limitation that the claimant could see, speak and hear for 2-4 hours is not consistent or supported by any visual or auditory impairments. (Ex. B1F-B24F).
(Id. at 1537-38).
Plaintiff challenges the ALJ's assessment of Dr. Toor's 2013 opinion, arguing (1) the ALJ's finding that Plaintiff can stand/walk for up to two hours, and sit for about six hours in an eight-hour day, conflicts with Dr. Toor's opinion that Plaintiff has moderate to severe limitations for standing and walking, and moderate limitations for sitting for a long period of time, and (2) the ALJ's finding that Plaintiff is capable of frequent reaching, handling, fingering bilaterally, and turning his head to the left and to the right, conflicts with Dr. Toor's opinion that Plaintiff has moderate limitations for reaching, grasping, writing, performing manipulative tasks, holding objects, and twisting his cervical spine. (Dkt. 14-1 at 16, 18). In response, the Commissioner contends that the ALJ fully considered Dr. Toor's opinion, explained his analysis of the opinion, and the RFC is supported by Dr. Toor's opinion. (Dkt. 15-1 at 8-13).
In its remand order, the Appeals Council took issue with the fact that the prior ALJ on Plaintiff's case had assigned "significant weight" to Dr. Toor's 2013 opinion, but without explanation failed to adopt in the RFC all of Dr. Toor's assessed limitations. The Appeals Council cited specifically to Dr. Toor's opinion that Plaintiff had a moderate limitation for sitting for a long period of time, explaining that this opinion was inconsistent with the "sedentary" RFC assessed by the ALJ, which did not include any limitations on Plaintiff's ability to sit, and also did not contain a sit/stand option. (See Dkt. 13 at 1630). The Appeals Council directed that the ALJ on remand give "further consideration" to the opinion and provide "appropriate rationale with specific references to evidence of record in support of the assessed limitations." (Id. at 1630-31). On remand, the ALJ again assigned "significant weight" to Dr. Toor's 2013 opinion because it was consistent with his examination findings and other medical evidence in the record. (Id. at 1537). Then, the ALJ assessed an RFC consistent with sedentary work, requiring that Plaintiff stand and/or walk for up to two hours in an eight-hour day, and sit for about six hours in an eight-hour day. (Id. at 1534).
The Court finds that the ALJ failed comply with the Appeals Council's remand order, which required him to further explain how Dr. Toor's 2013 opinion supports an RFC requiring sedentary work. Although the Commissioner argues that "it is clear from the administrative decision that the ALJ made definite findings and determined precisely how many hours per day that Plaintiff would be able to engage in sitting, stand[ing] and walking respectively" (Dkt. 15-1 at 11), "[s]edentary work ... generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day," Perez v. Chater , 77 F.3d 41, 46 (2d Cir. 1996) ; see also Jessica J. L. v. Saul , No. 18-CV-339-A, 2021 WL 1405788, at *2 (W.D.N.Y. Apr. 14, 2021) (same). Accordingly, the most recent RFC—which requires that Plaintiff stand and/or walk up to two hours in an eight-hour day and to sit for about six hours in an eight-hour day—is not more specific or restrictive than the prior RFC, which required that Plaintiff perform "sedentary work." Further, the ALJ provided no additional explanation as to how he arrived at these specific limitations, nor did he otherwise explain how the limitations are supported by Dr. Toor's assessment of Plaintiff's ability to sit, stand, and walk.
"Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." See 20 C.F.R. § 404.1567(a). The Court notes initially, and Plaintiff appears to agree, that sedentary work is not necessarily precluded by an opinion that a claimant has moderate limitations for sitting. (See Dkt. 14-1 at 16 ("An assessment of a moderate limitation for prolonged sitting alone is not inconsistent with a finding that a claimant can perform sedentary work.")). "As courts within this Circuit have repeatedly recognized, moderate limitations in sitting are not necessarily inconsistent with the ability to perform the six hours of sitting needed for sedentary work." Marty S. v. Comm'r of Soc. Sec. , No. 20-CV-932, 2022 WL 472566, at *6 (W.D.N.Y. Feb. 16, 2022) ; Josielewski v. Berryhill , No. 1:15-CV-00728-MAT, 2018 WL 903471, at *5 (W.D.N.Y. Feb. 15, 2018) ("this Court has previously held that an assessment of moderate to marked limitations for prolonged sitting is consistent with a finding that a claimant can perform sedentary work"). However, Dr. Toor also assessed that Plaintiff has "moderate to severe" limitations for standing and walking which, coupled with the sitting limitation, are not consistent with an RFC requiring Plaintiff to perform sedentary work. See, e.g., Thurman v. Comm'r of Soc. Sec. , No. 17-CV-474-FPG, 2018 WL 4940726, at *4 (W.D.N.Y. Oct. 12, 2018) (where doctor opined that the plaintiff "could not engage in prolonged sitting, standing, and walking due to ‘moderate limitation’ in those areas," noting that "[t]his opinion, if credited, might preclude [the plaintiff] from performing even sedentary work and thus render him disabled"); Knorr v. Colvin , No. 6:15-cv-06702(MAT), 2016 WL 4746252, at *13 (W.D.N.Y. Sept. 13, 2016) (moderate limitations in sitting, standing, and walking are "not necessarily consistent with a sedentary RFC"); Seignious v. Colvin , No. 6:15-CV-06065(MAT), 2016 WL 96219, at *3 (W.D.N.Y. Jan. 8, 2016) (explaining that Dr. Toor's opinion that Plaintiff had moderate to severe limitations was too vague on its face to support an RFC requiring sedentary work, and noting that "courts have found that even ‘moderate’ limitations raise questions as to a claimant's ability to perform prolonged sitting or standing").
Likewise, Dr. Toor's opinion that Plaintiff has moderate limitations for grasping, holding, writing, tying shoelaces, zipping, buttoning, manipulating coins, holding objects, and twisting his cervical spine, is inconsistent with the RFC, which requires that Plaintiff "frequently" reach, handle, and finger bilaterally, and "frequently" turn his head to the left and to the right. "[C]ourts in this district have found mild to moderate hand limitations to be inconsistent with the ability to frequently reach, handle, and finger." James B. v. Saul , No. 19-CV-6493F, 2021 WL 615855, at *5 (W.D.N.Y. Feb. 17, 2021) (citation omitted); see also Carlin v. Comm'r of Soc. Sec. , No. 19-CV-6312-LJV, 2020 WL 5995181, at *3 (W.D.N.Y. Oct. 9, 2020) (same); McFarland-Deida v. Berryhill , No. 17-CV-6534-FPG, 2018 WL 1575273, at *4 (W.D.N.Y. Apr. 2, 2018) (remand required where the ALJ "afforded ‘significant weight’ to Dr. Toor's opinion that [the plaintiff] had mild hand limitations, but failed to explain his finding that [the plaintiff] can nonetheless frequently reach, handle, and finger bilaterally").
As explained above, the ALJ gave the July 2013 opinion offered by Dr. Toor "significant weight" (see Dkt. 13 at 1537 (giving opinion "significant weight because it is generally consistent with Dr. Toor's consultative examination findings and the totality of the medical evidence of record")), but the ALJ then failed to explain how these limitations were accounted for the RFC. The ALJ's failure to do so was in direct contravention of the Appeals Council's remand order. Because an ALJ's failure to comply with such an order constitutes legal error, see Tracy , 2017 WL 279556, at *2, remand is required on this basis.
B. Remedy
Plaintiff argues that the Court should remand his case to the Commissioner solely for the calculation and payment of benefits. In support of this contention, Plaintiff argues that the record is fully developed and persuasively demonstrates disability, and also that Plaintiff is currently receiving Title XVI benefits and has met his burden of demonstrating disability. (Dkt. 14-1 at 20-21).
The district court has the power to affirm, modify, or reverse the Commissioner's decision, with or without remanding for a rehearing. See 42 U.S.C. § 405(g). "The standard for directing a remand for calculation of benefits is met where the record persuasively demonstrates the claimant's disability, and there is no reason to conclude that the additional evidence might support the Commissioner's claim that the claimant is not disabled." Destefano v. Berryhill , No. 6:17-cv-06651(MAT), 2018 WL 5489574, at *5 (W.D.N.Y. Oct. 29, 2018) (internal citations omitted); see also Harbot v. Berryhill , 335 F. Supp. 3d 382, 388 (W.D.N.Y. 2018) ("Remand for the purpose of calculation of benefits is warranted where the record demonstrates the claimant's disability, and where there is no reason to conclude that there is additional evidence to support the Commissioner's claim that a claimant is not disabled."). Further, where a claim has previously been remanded and the Commissioner has been afforded multiple opportunities to carry his burden, remand for calculation and payment of benefits may be appropriate. Steficek v. Barnhart , 462 F. Supp. 2d 415, 421 (W.D.N.Y. 2006) (finding that case should be remanded for calculation and payment of benefits where "[t]he Commissioner has already had one opportunity to correct the errors that occurred in connection with the first hearing, and has failed to do so; in fact, the ALJ committed the exact same errors the second time around"); see also Torres v. Colvin , No. 3:16-CV-00809(JAM), 2017 WL 1734020, at *4 (D. Conn. May 3, 2017) ("Plaintiff's claim has been pending for more than seven years and was already remanded by the District Court once before. I am not persuaded that the Commissioner deserves a third opportunity to carry her burden.").
The Appeals Council issued a remand order on November 17, 2016, which also found the ALJ had failed to explain why he gave Dr. Toor's 2013 opinion "great" weight, but then failed to include those limitations in the RFC. (See Dkt. 13 at 120-22 ("Dr. Toor opined that the claimant has moderate to severe limitations in standing and walking, that pain interferes with his balance, that he has a moderate limitation in sitting a long time and moderate limitations in performing various activities with his upper extremities, such as reaching, grasping, and manipulating. The decision did not include these limitations in the residual functional capacity or provide[ ] rationale for not including them.")). In other words, this is not the first time an ALJ has failed to comply with a remand order directing proper assessment of Dr. Toor's opinion.
As explained above, Plaintiff's claim was remanded for further administrative proceedings on two occasions—once by the Appeals Council in November 2016, and once by the District Court in November 2019. This represents the Commissioner's third opportunity to reconcile the RFC with Dr. Toor's assessed limitations in an opinion given "great" or "significant" weight. The Court concludes that given the three previous hearings on Plaintiff's claim, the record is already comprehensive, and would not benefit from further development if the Court were to remand the matter for a fourth hearing.
Dr. Toor's 2013 opinion is well supported by the record. For example, Dr. Toor's opinion that Plaintiff has moderate limitations for grasping, holding, writing, tying shoelaces, zipping, buttoning, manipulating coins, and holding objects is well-supported by his own examination of Plaintiff, wherein he found that Plaintiff's hand and finger dexterity were not intact and he had reduced grip strength, and during which he observed that Plaintiff had "moderate difficulty" performing these activities. (See Dkt. 13 at 513). Further, Dr. Toor's 2013 opinion was previously credited by the ALJs examining Plaintiff's claim. Both ALJs assigned to Plaintiff's case afforded Dr. Toor's 2013 opinion "great" or "significant weight," noting that it was consistent with Dr. Toor's examination and with other medical evidence in the record. (See id. at 1537 (April 29, 2020 written determination, explaining that Dr. Toor's opinion was entitled to "significant weight because it is generally consistent with Dr. Toor's consultative examination findings and the totality of the medical evidence of record"); id. at 23-24 (February 26, 2018 written determination, explaining that Dr. Toor's 2013 opinion was entitled to "significant weight," because it was "consistent with the doctor's examination findings and is supported with explanation," and "consistent with the medical evidence of record"); id. at 112 (April 24, 2015 written determination, explaining that Dr. Toor's 2013 opinion was entitled to "great weight," because it was "well supported by the medical record," and "parallel[ed] the medical record as a whole")).
At the most recent administrative hearing on April 9, 2020, the vocational expert testified that if Plaintiff was not able to "frequently" reach, handle, and finger bilaterally, but was only able to "occasionally" perform those activities, given the other limitations in the RFC there would be no work available. (Id. at 1558). As explained above, Dr. Toor's opinion does not support Plaintiff's ability to perform these activities frequently, and a limitation requiring that Plaintiff "occasionally" perform these activities would have resulted in a disability finding. Further, the vocational expert testified that if Plaintiff required a sit/stand option, no jobs would be available. (Id. at 1559).
Indeed, a moderate limitation may be consistent with the ability to perform a task only "occasionally." See, e.g., Brierley v. Saul , No. 1:18-CV-00708 CJS, 2020 WL 709609, at *5 (W.D.N.Y. Feb. 12, 2020) ("courts have endorsed the ... idea that a moderate limitation on a claimant's ability to perform a certain work-related activity may be accounted for by limiting the claimant to performing that activity only occasionally").
Had the ALJ properly credited the well-supported limitations assessed by Dr. Toor, he would have found Plaintiff disabled. The record before the Court therefore "persuasively demonstrates" Plaintiff's disability, and "there is no reason to conclude that additional evidence might support the Commissioner's claim that the claimant is not disabled." Destefano , 2018 WL 5489574, at *5 ; see also Steficek , 462 F. Supp. 2d at 421 (remanding for calculation and payment of benefits where medical evidence, including opinion evidence, supported conclusion that the plaintiff was disabled). Accordingly, Plaintiff's case is remanded to the Commissioner solely for the calculation and payment of benefits.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 14) is granted, and the Commissioner's motion for judgment on the pleadings (Dkt. 15) is denied. This matter is remanded to the Commissioner solely for the calculation and payment of benefits. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.