McClement v. Commissioner of Social Security
Filing
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ORDER: It is Ordered that Plaintiff's Motion for Judgment on the Pleadings is GRANTED. The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Ac t is VACATED. The matter related to the # 1 Complaint filed by Susan McClement is hereby REMANDED to the Commissioner, with a directed finding of disability, for the purposes of calculating benefits owing to the plaintiff. The Clerk is directed to enter Judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 USC 405(g) and closing this case. Copy of the Transcript of the Telephone Conference held on 2/13/2015 attached. Signed by Magistrate Judge David E. Peebles on 2/13/2015. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
SUSAN McCLEMENT,
Plaintiff,
v.
Civil Action No.
1:13-CV-1450 (DEP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF
BUCKLEY, MENDLESON LAW OFFICE IRA MENDLESON, III, ESQ.
29 Wards Lane
Albany, NY 12204
FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
JASON P. PECK, ESQ.
Special Assistant U.S. Attorney
ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Commissioner, pursuant to 42 U.S.C. ' 405(g), are cross-motions for
judgment on the pleadings. 1 Oral argument was conducted in connection
with those motions on February 13, 2015 during a telephone conference,
held on the record. At the close of argument I issued a bench decision in
which, after applying the requisite deferential review standard, I found that
the Commissioner=s determination did not result from the application of
proper legal principles and is not supported by substantial evidence,
providing further detail regarding my reasoning and addressing the specific
issues raised by the plaintiff in this appeal.
After due deliberation, and based upon the court=s oral bench
decision, a transcript of which is attached and incorporated herein by
reference, it is hereby
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This matter, which is before me on consent of the parties pursuant to 28
U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General
Order No. 18 (formerly, General Order No. 43) which was issued by the Hon. Ralph W.
Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and
subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on
September 12, 2003. Under that General Order an action such as this is considered
procedurally, once issue has been joined, as if cross-motions for judgment on the
pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
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ORDERED, as follows:
1)
Plaintiff=s motion for judgment on the pleadings is GRANTED.
2)
The Commissioner=s determination that plaintiff was not
disabled at the relevant times, and thus is not entitled to benefits under the
Social Security Act, is VACATED.
3)
The matter is hereby REMANDED to the Commissioner, with a
directed finding of disability, for the purpose of calculating benefits owing to
the plaintiff.
4)
The clerk is directed to enter judgment, based upon this
determination, remanding the matter to the Commissioner pursuant to
IT
sentence four of 42 U.S.C. ' 405(g) and closing this case.
___
Dav
U.S
Dat
Dated: February 13, 2015
Syracuse, New York
___________________________
David E. Peebles
U.S. Magistrate Judge
DENIED:
___________________________
David E. Peebles
U.S. Magistrate Judge
Dated: ____________________
Syracuse, NY
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
SUSAN McCLEMENT,
Plaintiff,
vs.
1:13-CV-1450
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Telephone Conference Decision
held on February 13, 2015, at the James Hanley
Federal Building, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES,
United States District Judge, Presiding.
A P P E A R A N C E S
(Via Telephone)
For Plaintiff:
BUCKLEY, MENDLESON LAW FIRM
Attorneys at Law
29 Wards Lane
Albany, New York 12204
BY: IRA MENDLESON, III, ESQ.
For Defendant:
SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: JASON P. PECK, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
(315) 234-8547
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(The following is an excerpt from the
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proceedings held on 2/13/15.)
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(In Chambers, Counsel present via telephone.)
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THE COURT:
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Very good.
I appreciate excellent
presentations by counsel.
I have before me a request for judicial review of a
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Commissioner's determination that the plaintiff in this
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action was not disabled at the relevant times and therefore
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ineligible for the benefits for which she applied.
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sought under 42 United States Code Section 405(g).
Review is
As everyone knows, under that provision, the
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court's task is fairly limited and it applies a very
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deferential standard.
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legal principles were applied and the ALJ and Commissioner's
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determination were supported by substantial evidence.
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Supreme Court has defined substantial evidence as such
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relevant evidence as a reasonable mind might accept as
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adequate to support a conclusion.
My role is to determine whether proper
The background for the case is as follows:
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The
The
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plaintiff was born in January of 1975 and is 40 years old.
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She's a high school graduate with some trade school training.
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She's right-hand dominant, she's divorced, last worked in
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July of 2009, where she was injured in a submarine shop
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setting.
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nursing home, as a cashier in a grocery and drugstore, and as
She's also worked as a certified nurse aide in a
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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a bank teller.
In July of 2009, she consulted with an orthopedist,
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Dr. Todd Shatynski, who saw her from then until roughly
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January of 2010.
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Group including Drs. Locke and Yoon who appear to be general
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practitioners.
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She has also treated with Latham Medical
In February of 2010, she saw Dr. Daniel T. Phelan,
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an orthopedic surgeon, who performed a SLAP repair of the
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plaintiff's left extremity on July 28, 2010.
After the
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surgery the plaintiff continued to complain of pain in her
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left shoulder.
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September and November of 2010.
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Dr. Kyle Flik for a second opinion on May 25, 2011.
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diagnosed her with suspected bicipital tendinitis and gave
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her a Lidocaine injection.
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plaintiff's complaints of pain.
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of the administrative transcript.
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the plaintiff would ever improve.
She went to physical therapy between
She was ultimately seen by
Dr. Flik
Didn't appear to question
His reports include page 259
He indicated he doubted
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She has seen several Workers' Compensation
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consultants, including Dr. Steven Hausmann, in 2010 diagnosed
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plaintiff with adhesive capsulitis, indicated she had a
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limited range of motion and no ability to lift with her left
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extremity.
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She was also consultatively seen by Dr. Louis
Benton in the Workers' Compensation setting on November 14th,
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
11
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2011, and again, September 8, 2012.
She was seen on behalf of the Commissioner, as
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plaintiff's counsel indicated, by Dr. Jose Corvalan on
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January 19, 2012.
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that is in the record.
He issued a medical source evaluation and
She was seen on September 24, 2012 by Dr. Andrew
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Dubin on referral from Dr. Phelan.
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plaintiff had a marked partial disability.
Plaintiff underwent a second surgery on April 24,
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He indicated that
2012.
Procedurally, plaintiff applied for Disability
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Insurance benefits on November 1, 2010, alleging an onset
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date of July 2, 2009.
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and December 15, 2011 by Administrative Law Judge Carl
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Stephan.
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Hearings were conducted on May 8, 2012
On May 18, 2012, ALJ Stephan issued a decision.
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The decision became a final determination of the Commissioner
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on October 1, 2013 when the Social Security Administration
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Appeals Council denied plaintiff's application for review of
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that determination.
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In his decision, the administrative law judge went
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through the now familiar five-step test for determining
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disability, found that the plaintiff was insured through
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December 31, 2014, at step one concluded she had not engaged
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in substantial gainful activity since July 2, 2009, noted
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
12
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that she suffers from severe -- at step two, severe
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conditions posing work-related limitations including left
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shoulder pain post-arthroscopic surgery and asthma.
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three he concluded, however, that she did not -- her
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conditions did not meet or equal medically any of the listed
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presumptively disabling conditions.
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musculoskeletal issues and her respiratory issues under
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Listings 1.00 and 3.00.
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At step
He considered both the
He next determined, after surveying the medical
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evidence, that she retains the residual functional capacity
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to work in a sedentary setting, except that she's limited to
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lifting and/or carrying 5 pounds occasionally and
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occasionally reaching in all directions with her nondominant
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left upper extremity but she has no restrictions with her
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dominant right upper extremity.
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ability -- no sit, stand, or walk limitations but cannot
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perform any climbing of ladders or scaffolds and no crawling.
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He further found she should not be exposed to concentrated
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amounts of respiratory irritants.
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In addition, she has no
Applying that RFC, he next presented or --
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presented a hypothetical, two hypothetical questions, one of
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which tracked his RFC finding, to a vocational expert, who
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concluded and testified that plaintiff cannot perform her
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past relevant work, and that she is unable to perform in
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other capacities -- that she is able to perform, I'm sorry,
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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work available in the national and regional economies.
The second hypothetical which was far more
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restricted, as plaintiff's counsel indicated, resulted in a
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finding that plaintiff was not disabled.
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that if the grids were applied, a finding of no disability
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would be compelled by Rule 202.21, but he determined that
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with her nonexertional limitations, a vocational expert
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should be -- should testify based on the possibility of
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erosion of the job base on which the grids are predicated.
The ALJ also noted
When I look at the medical evidence, I have to
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conclude that the finding that plaintiff can occasionally
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lift with her left extremity is not supported by substantial
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evidence.
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testimony.
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to use her left arm.
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unable to lift above her waist with her left arm at 223 of
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the administrative transcript.
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able to work but cannot use her left extremity, left upper
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extremity for any meaningful work, that is at 276.
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that the administrative law judge claimed to have given great
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weight to the opinions of Dr. Benton.
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indicated that plaintiff has a marked limitation in her use
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of her left upper extremity, that is at 280.
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administrative law judge claims to have given at least some
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weight to Dr. Corvalan's opinions.
It is certainly contradicted by plaintiff's
At pages 38 and 50, she testified she is unable
Dr. Hausmann indicated that she is
Dr. Benton said that she is
I note
Dr. Corvalan also
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
The
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When the ALJ balanced the medical evidence, he
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focused on Dr. Locke and Dr. Yoon, these are generalists who
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were treating the plaintiff primarily prior to her even first
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surgery; Dr. Shatynski, who treated the plaintiff early on;
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and Dr. Flik, who saw her only once and even then found no
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reason to question her pain and gave her a Lidocaine
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injection.
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Her treating source unfortunately has really not
provided a medical source statement.
Dr. Phelan did,
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however, say that she was 100 percent disabled, and while it
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is certainly the law that his, his raw conclusion of
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disability is not acceptable and entitled to controlling
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weight since it addresses a matter reserved to the
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Commissioner, nonetheless, it certainly is an indication that
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Dr. Phelan concurs with these other opinions about her
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limitations.
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So I conclude that the vocational expert's
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testimony based on residual function -- the first
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hypothetical that tracks the residual functional capacity is
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flawed because the residual functional capacity is not
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supported by substantial evidence.
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second hypothetical, I would remand the matter with a
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direction that the matter be reconsidered.
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with the plaintiff that the second hypothetical does track
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the medical evidence and is supported and because the
And were it not for the
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
However, I agree
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vocational expert testified that given the limitations of the
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second hypothetical, plaintiff is unable to work in any
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capacity in any job available in the national and local
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economy, I conclude that there is persuasive proof of
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disability and I will therefore vacate the Commissioner's
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determination and remand with a directed finding of
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disability solely for purposes of calculating benefits.
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I thank you both for your excellent presentations
again and I hope you have a great weekend.
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MR. MENDLESON:
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THE COURT:
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Okay, thank you, your Honor.
Thank you.
(Proceedings Concluded, 10:28 a.m.)
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JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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CERTIFICATE OF OFFICIAL REPORTER
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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal
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Official Realtime Court Reporter, in and for the
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United States District Court for the Northern
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District of New York, DO HEREBY CERTIFY that
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pursuant to Section 753, Title 28, United States
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Code, that the foregoing is a true and correct
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transcript of the stenographically reported
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proceedings held in the above-entitled matter and
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that the transcript page format is in conformance
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with the regulations of the Judicial Conference of
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the United States.
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Dated this 13th day of February, 2015.
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/S/ JODI L. HIBBARD
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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter
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JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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