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1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 

4 AMENDED SUMMARY ORDER

5 

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL

7 EFFECT.    CITATION TO A SUMMARY ORDER FILED ON OR AFTER

8 JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

9 OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.

10 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH

11 THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX

12 OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY

13 ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

14 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.    15 

16 At a stated term of the United States Court of Appeals for the Second

17 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 30 18 th day of July, two thousand fourteen.

19 

20 PRESENT: JOHN M. WALKER, JR.,

21                          DENNY CHIN,

22            CHRISTOPHER F. DRONEY,

23      Circuit Judges.

24 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

25 

26 MICHAEL MARIANI,

27 

28     Plaintiff‐Appellant,

29 

30                                       v. No. 13‐1941

31    

32 CAROLYN W. COLVIN, COMMISSIONER SOCIAL

33 SECURITY ADMINISTRATION,

34 

35     Defendant‐Appellee.

36 

37 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

38 

39 
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1 

2 APPEARING FOR APPELLANT: CHRISTOPHER J. BOWES, ESQ., LAW OFFICE OF

3 CHRISTOPHER  BOWES, Shoreham, New

4 York.

5    

6 APPEARING FOR APPELLEE:  NATALIE N. KUEHLER (John E. Gura, Jr. and

7 Emily E. Daughtry, on the brief), Assistant

8 United States Attorneys, for Preet Bharara,

9 United States Attorney for the Southern

10 District of New York, New York, New

11 York.

12    

13 Appeal from a judgment of the United States District Court for the

14 Southern District of New York (Hellerstein, J.).

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

16 ADJUDGED, AND DECREED that the judgment of the district court is

17 VACATED and the case is REMANDED with instructions.

18 Plaintiff‐appellant Michael Mariani appeals from the district court’s

19 judgment entered March 22, 2013, upholding the Commissioner of Social

20 Security’s (the “Commissioner”) denial of disability benefits under the Social

21 Security Act (“SSA”).  The judgment was based on the district court’s order

22 granting judgment on the pleadings in favor of defendant‐appellee

23 Commissioner.  Mariani v. Astrue, No. 12 Civ. 1282 (S.D.N.Y. March 20, 2013).  
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1 We assume the parties’ familiarity with the underlying facts and procedural

2 history of the case, as well as the issues presented for review.

3 “[W]e conduct a plenary review of the administrative record to determine

4 if there is substantial evidence, considering the record as a whole, to support the

5 Commissioner’s decision and if the correct legal standards have been applied.”  

6 Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks

7 omitted).  “Substantial evidence means more than a mere scintilla.  It means such

8 relevant evidence as a reasonable mind might accept as adequate to support a

9 conclusion.”  Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation

10 marks omitted).   

11 Under the SSA, “disability” means an “inability to engage in any

12 substantial gainful activity by reason of any medically determinable physical or

13 mental impairment . . . which has lasted or can be expected to last for a

14 continuous period of not less than 12 months.”  42 U.S.C. § 423(d)(1)(A).  “The

15 impairment must be of ‘such severity that [the claimant] is not only unable to do

16 his previous work but cannot, considering his age, education, and work

17 experience, engage in any other kind of substantial gainful work which exists in
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1 the national economy.’”  Shaw v. Chater, 221 F.3d 126, 131‐32 (2d Cir. 2000)

2 (quoting 42 U.S.C. § 423(d)(2)(A)).  “Pursuant to regulations promulgated by the

3 Commissioner, a five‐step sequential evaluation process is used to determine

4 whether the claimant’s condition meets the Act’s definition of disability.”  

5 Burgess, 537 F.3d at 120 (citing 20 C.F.R. § 404.1520).  

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

7 is not working, (2) that he has a severe impairment, (3)

8 that the impairment is not one that conclusively

9 requires a determination of disability, and (4) that the

10 claimant is not capable of continuing in his prior type of

11 work, the Commissioner must find him disabled if (5)

12 there is not another type of work the claimant can do.

13 

14 Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (internal quotation marks

15 omitted).

16 Where, as here, a claimant’s impairments are not per se disabling under

17 SSA regulations, the Commissioner must ascertain the claimant’s residual

18 functional capacity (“RFC”).  See 20 C.F.R. § 404.1520(a)(4).  “A claimantʹs RFC is

19 ‘the most [he] can still do despite [his] limitations.’”  Genier v. Astrue, 606 F.3d 46,

20 49 (2d Cir. 2010) (per curiam) (alteration in original) (quoting 20 C.F.R. §
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1 416.945(a)(1)).  This RFC is then used at step four to determine whether the

2 claimant can perform his past work and at step five to determine if the claimant

3 can perform other available work. See 20 C.F.R. § 404.1520(e).  The claimant bears

4 the burden of proof as to the first four steps. Cichocki v. Astrue, 729 F.3d 172, 176

5 (2d Cir. 2013) (per curiam).  At step five, the Commissioner has the “limited

6 burden” of “show[ing] that there is work in the national economy that the

7 claimant can do.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam).

8 The Administrative Law Judge (“ALJ”) found that Mariani retained a RFC

9 to “perform fine manipulation/fingering 50% of the time with his dominant right

10 upper extremity during a typical work day.”  Social Security Administration

11 Administrative Record at 13, Mariani v. Astrue, No. 12 Civ. 1282 (S.D.N.Y. March

12 22, 2013).  The appellant contends that this finding and the consequent decision

13 that he could perform certain sedentary occupations, and thus was not disabled

14 under the SSA, were not supported by substantial evidence.  We agree because

15 the record provides no evidence for the ALJ’s specific finding that Mariani could

16 use his dominant right hand for fifty percent of the workday.  We therefore

17 remand to the ALJ for further factfinding as to the extent of Mariani’s hand
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1 impairment and whether there are jobs in the economy he can perform with that

2 degree of impairment.

3 Mariani argues that the ALJ should have given controlling weight to his

4 treating physician’s opinion that he had “no use” of his right hand.  Id. at 404.  A

5 treating physician’s opinion need not be given controlling weight where it is not

6 well‐supported or is not consistent with the opinions of other medical experts

7 that are sufficiently substantial evidence to undermine the opinion of the treating

8 physician.  See Burgess, 537 F.3d at 128.  Having found there was substantial

9 evidence that was inconsistent with Mariani’s treating physician’s opinion, the

10 ALJ did not err in declining to give his opinion controlling weight.  However, the

11 ALJ was not then permitted to “arbitrarily substitute his own judgment for

12 competent medical opinion.”  McBrayer v. Sec’y of Health & Human Servs., 712

13 F.2d 795, 799 (2d Cir. 1983); see id. (“[W]hile an administrative law judge is free to

14 resolve issues of credibility as to lay testimony or to choose between properly

15 submitted medical opinions, he is not free to set his own expertise against that of

16 a physician who testified before him.” (internal quotation marks omitted));

17 Balsamo v. Chater, 142 F.3d 75, 80‐81 (2d Cir. 1998).  
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1 Rejecting the treating physician’s conclusion that Mariani could not use his

2 hand at all, the ALJ found that he could use his hand fifty percent of the time.  

3 There is not substantial evidence in the record for this alternative conclusion.

4 Admittedly, the evidence of the severity of Mariani’s hand impairment is

5 inconsistent, ranging from total loss of function to the consulting physician’s

6 conclusion that Mariani’s hand and finger dexterity were “intact.”  Social

7 Security Administration Administrative Record at 328, Mariani v. Astrue, No. 12

8 Civ. 1282 (S.D.N.Y. March 22, 2013). Medical evidence at both ends of the

9 spectrum, however, is not substantial evidence for a finding that the extent of the

10 disability is fifty percent capacity.  Cf. Ferraris v. Heckler, 728 F.2d 582, 586‐87 (2d

11 Cir. 1984) (holding that where there was no consensus among physicians’

12 opinions, the ALJ should have set forth specific findings of exactly what the

13 claimant could do, “especially with reference to his ability to sit and for how

14 long”).  There is no other evidence in the administrative record that provides

substantial evidence for the ALJ’s fifty percent finding.1 15 

 

1 In addition to the opinions of Mariani’s treating physician and the consulting physician, the

record includes: (1) Dr. Walia’s diagnosis that the appellant “clearly has complex regional pain

syndrome [‘CRPS’] involving his right hand that seems to be spreading to involve lower

forearm now,” Social Security Administration Administrative Record at 396, Mariani v. Astrue,
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1 The appellant’s own description of his limitation does not provide

2 substantial evidence for the ALJ’s fifty percent finding and the ALJ’s failure to

3 credit that testimony appears to have been based on a misreading of the

evidence.2 4   See Genier, 606 F.3d at 50 (remanding to the ALJ “[b]ecause the ALJ’s

5 adverse credibility finding, which was crucial to his rejection of [the] claim, was

6 based on a misreading of the evidence”).  On remand, therefore, the ALJ’s

7 assessment of Mariani’s credibility should be based on accurate depictions of the

8 representations made by Mariani.

 

No. 12 Civ. 1282 (S.D.N.Y. March 22, 2013); (2) an electromygram [“EMG”] that showed that

Mariani suffered from very mild right median mononeuropathy at the wrist; (3) Dr. Rudnick’s

findings in 2008 that Mariani suffered from a “slight decrease sensation” in the fourth and fifth

digit of his right hand as well as “decreased range of motion right wrist secondary to pain” and

“decreased grip right hand,” id. at 350, 377‐78; (4) Dr. Arcuri’s determination that Mariani’s

sensation and reflexes for his upper extremities were intact, and his motor strength and find

motor skills were normal.  

  

2 Contrary to the ALJ’s findings that Mariani “had no problems going shopping in stores,”

Mariani indicated that he did not shop independently and that he could only hold things with

his left hand.  Social Security Administration Administrative Record at 16, 229, Mariani v.

Astrue, No. 12 Civ. 1282 (S.D.N.Y. March 22, 2013).  While the ALJ found that Mariani had

conceded that “he was still able . . . to prepare small meals, to perform light cleaning and to do

laundry,” Mariani indicated that he would “attempt to do daily household chores” and that he

needed help to do light cleaning and the laundry, and was unable to carry laundry baskets.  Id.

at 226‐28.  According to the appellant, preparing meals took three times as long as it used to

because he would drop things and had difficulty opening bottles or jars.  
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1 Because there is not substantial evidence for the ALJ’s finding that Mariani

2 had a RFC to perform fine manipulation/fingering fifty percent of the time with

3 his dominant right upper extremity during a typical workday, we cannot uphold

4 the ALJ’s decision to reject Mariani’s claim for disability benefits.  Further

5 findings would “plainly help to assure the proper disposition” of Mariani’s

6 claim; therefore, remand for further factfinding as to the extent of Mariani’s hand

impairment is the appropriate remedy. 3 7   Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir.

8 1999).

9 Conclusion

10 For the reasons stated above, we vacate and remand to the district court

11 with instructions to remand the matter to the Commissioner so that it can further

12 develop the evidence as to the extent of Mariani’s right hand impairment and

13 whether there are jobs in the economy Mariani can perform with that degree of

14 impairment.  In light of the need to remand for further factfinding, we express no

 

3 Mariani contends that “reversal, with remand solely for the calculation of benefits is the

appropriate remedy in this case.”  Appellant’s Br. 58.  This is not a case, however, where

“remand for further evidentiary proceedings would serve no purpose.”  Parker v. Harris, 626

F.2d 225, 235 (2d Cir. 1980).  Nor is delay alone a sufficient basis on which to remand solely for

benefits. Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).  
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1 opinion at this time as to whether the ALJ’s reliance on vocational expert

2 testimony was in error.

3       FOR THE COURT:

4       Catherine O’Hagan Wolfe, Clerk of Court

5 

6