Sager v. Saul

Filing 20

ORDER: that Plaintiff's 11 motion for judgment on the pleadings is Granted; that 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, i s Vacated; that the matter is hereby Remanded to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination; and that the Clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 11/19/2021. (hmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
ANGELA S.,
v.

Plaintiff,

Civil Action No.
3:20-cv-0922 (DEP)

KILOLO KIJAKAZI, Acting Commissioner
of Social Security, 1
Defendant.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
LACHMAN GORTON LAW FIRM
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089

PETER A. GORTON, ESQ.

FOR DEFENDANT
SOCIAL SECURITY ADMIN.
625 JFK Building
15 New Sudbury St
Boston, MA 02203

RAMI VANEGAS, ESQ.

Plaintiff’s complaint named Andrew M. Saul, in his official capacity as the
Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi
took office as the Acting Social Security Commissioner. She has therefore been
substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the
Federal Rules of Civil Procedure, and no further action is required in order to effectuate
this change. See 42 U.S.C. § 405(g).
1

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C.
'§ 405(g) and 1383(c)(3), are cross-motions for judgment on the
pleadings. 2 Oral argument was conducted in connection with those
motions on November 16, 2021, 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

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. Under that General Order once issue has been joined, an action such as
this is considered procedurally, as if cross-motions for judgment on the pleadings had
been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
2

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reference, it is hereby
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,

without a directed finding of disability, for further proceedings consistent
with this determination.
4)

The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner
pursuant to sentence four of 42 U.S.C. ' 405(g) and closing this case.

Dated:

November 19, 2021
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
ANGELA S.,
Plaintiff,
-v-

20-CV-922

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. PEEBLES
November 16, 2021
100 South Clinton Street, Syracuse, New York

For the Plaintiff:
(Appearance by telephone)
LACHMAN & GORTON LAW OFFICE
P.O. Box 89
1500 East Main Street
Endicott, New York 13761
BY: PETER A. GORTON, ESQ.
For the Defendant:
(Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
15 New Sudburty Street
Boston, Massachusetts 02203
BY: RAMI VANEGAS, ESQ.

Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY
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(The Court and all parties present by telephone.
Time noted:

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11:17 a.m.)

THE COURT:

Let me begin by thanking you both for

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excellent presentations, both in writing and verbally.

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given me a great deal to think about.

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found this to be an extremely close case written by an

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Administrative Law Judge who I have a great deal of respect for.

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You've

I have to say that I

I have before me a decision from the Commissioner of
Social Security finding that plaintiff was not disabled at the

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relevant times.

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42, United States Code, Sections 405(g) and 1383(c)(3).

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background is as follows:

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and is currently 40 years of age.

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alleged onset of her disability which she identifies as

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April 20, 2013.

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approximately 240 pounds.

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in Binghamton, New York where there's a washer and dryer in her

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basement.

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calculations, is currently approximately 19 years old, a

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daughter who is approximately 15 years of age, and twin

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daughters, 13 years of age.

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Plaintiff challenges that determination under
The

Plaintiff was born September of 1981
She was 33 years old at the

Plaintiff stands 5'6" in height and weighs
Plaintiff lives in a two-story house

She lives with her son who is nonverbal and, by my

Plaintiff has a high school diploma and a Bachelor's

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degree in Liberal Arts.

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Master's education.

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classes.

She also underwent one semester of

While in school, plaintiff was in regular

She's right-handed.

Plaintiff has a driver's license,

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY
1

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but testified that she rarely drives.

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The evidence in the record is somewhat equivocal as

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to when she stopped working.

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of 2017.

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working, she was employed by Catholic Charities assisting four

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autistic clients.

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worked as a counsellor, a corrections officer, a loss prevention

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employee, a shelf stocker, and a marketing manager.

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significant gaps in her employment history.

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At 319, the indication is November

Elsewhere, it's identified as April 20, 2013.

It was a full-time position.

While

She also has

There are

Physically, plaintiff suffers from vertigo, dizziness

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of an unknown etiology.

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to six dizzy spells per day that can last between 20 minutes and

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four hours.

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function bilaterally, diabetes, obesity, and leukocytosis,

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which, as I understand it, is a condition in which the white

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blood cell count is above the normal range in the blood.

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plaintiff has tried vestibular therapy, although she claims that

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it has made her dizzy.

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conditions.

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She testified that she experiences five

She has an unspecified disorder of the vestibular

The

She does not report any mental

Plaintiff's primary physician is Dr. Andrea Hsue who

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she treated with from 2016 to 2018, and Dr. Khaula Rehman who

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she began seeing in December 2018.

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neurologist, Dr. Aamir Rasheed, and others, including a

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rheumatologist.

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Metformin, Amitriptyline -- although she could not tolerate

She also has seen

Plaintiff has been prescribed over time

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY

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it -- Topamax, and she also takes Meclizine, which I understand

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is a form of Bonine or the generic for Bonine.

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Plaintiff can cook, clean, do laundry, shop, care for

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her children, shower, dress.

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television, she reads, she runs, she plays softball.

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She listens to the radio, watches

Procedurally, plaintiff applied for Title II and

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Title XVI benefits on July 25, 2017, alleging an onset date of

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April 20, 2013.

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leukocytosis, chronic fatigue and malaise, severe vertigo and

She claimed disability based upon her

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dizziness, an autoimmune disorder, a disorder of the vestibular

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function bilaterally, and diabetes.

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Administrative Law Judge Robyn Hoffman conducted a hearing to

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address plaintiff's applications.

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determination on September 13, 2019.

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determination of the Commissioner on June 16, 2020, when the

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Social Security Administration Appeals Council denied

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plaintiff's request for a review.

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August 13, 2020, and is timely.

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On July 24, 2019,

ALJ Hoffman issued an adverse
That became a final

This action was commenced on

In her decision, ALJ Hoffman applied the familiar

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five step sequential test for determining disability.

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noted that plaintiff's last date of insured status was June 30,

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2017, which actually predated the date of her applications on

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July 25, 2017.

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engaged in substantial gainful activity since April 20, 2013.

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She first

She found at step one that plaintiff had not

At step two, ALJ Hoffman concluded that plaintiff

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY
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does suffer from severe impairments that impose more than

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minimal limitations on her ability to perform basic work

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functions, including an unspecified disorder of the vestibular

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function bilaterally.

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At step three, ALJ Hoffman concluded that plaintiff's

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condition did not meet or medically equal any of the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations, specifically considering listings

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2.07, 7.18, and 14.07.

ALJ Hoffman then concluded based upon

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the entirety of the record that plaintiff was capable of

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performing a full range of light work as defined in the

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regulations with avoiding working at unprotected heights,

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climbing ladders, ropes, or scaffolds, and working in close

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proximity to dangerous machinery or moving mechanical parts of

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equipment.

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At step four, based upon that RFC determination, ALJ

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Hoffman concluded that there was insufficient evidence in the

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record regarding plaintiff's past relevant work and therefore

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proceeded to step five where, of course, the burden of proof

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shifts to the Commissioner.

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At step five, ALJ Hoffman concluded that if plaintiff

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were capable of performing a full range of light work, a finding

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of no disability would be compelled under Medical-Vocational

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Guideline Rule 202.21.

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limitations set forth in the RFC would not significantly effect

She found that the additional

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY
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plaintiff's ability to perform unskilled light work and that

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S.S.R. 85-15 therefore directed a finding of no disability and

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that testimony of a vocational expert was not necessary.

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As you know, the Court's function in this case is

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limited to determining whether correct legal principles were

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applied and the supporting -- and the resulting determination is

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supported by substantial evidence, defined as such relevant

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evidence as a reasonable mind would find sufficient to support a

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conclusion.

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In this case, plaintiff raises three basic

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contentions which lead to the fourth, which is that the step

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five determination is not supported and that a vocational

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expert's testimony was required.

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residual functional capacity did not account for her dizziness

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and the result of being off task or absent based upon the

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dizziness or vertigo.

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the opinion of Dr. Rehman concerning plaintiff being off task or

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absent and argues that there is no competing medical opinion and

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therefore the resulting rationale must meet the overwhelmingly

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compelling standard that seems to be applied in the Second

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Circuit.

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relied on plaintiff's activities of daily living which did not

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take into account that they could be performed while she was not

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experiencing an episode, but perhaps not performed when she was

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experiencing an episode of vertigo or dizziness.

She first argues that the

Second, she challenges the rejection of

And the third argument is that the ALJ improperly

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY
1

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The first order of business, of course, for an

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Administrative Law Judge is to determine plaintiff's residual

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functional capacity, which represents the range of tasks that

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the plaintiff's capable of performing notwithstanding her

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impairments.

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ability to perform sustained work activities in an ordinary

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setting on a regular and continuing basis, meaning eight hours a

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day for five days a week or an equivalent schedule, Tankisi v.

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Commissioner of Social Security, 521 F. App’x 29 at 33, Second

Ordinarily, an RFC represents a claimant's maximum

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Circuit 2013.

The resulting RFC must be supported by

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substantial evidence, of course.

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Addressing first the off task and absences.

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are several cases that plaintiff has cited, and many others that

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follow this line of cases, that talk about an episodic

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impairment such as multiple sclerosis, dizziness and vertigo,

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and require an evaluation of the frequency and duration of such

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impairments and their interruption of the ability to perform

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work functions.

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Circuit, 1990, is one example.

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Colvin, from the Western District of New York, October 7, 2013.

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The Westlaw cite is 2013 WL 5533571.

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including those, that have been cited by plaintiff's counsel.

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There

Wilcox v. Sullivan, 917 F.2d 272 from the Sixth
Closer to home is Peck v.

And there are others,

Plaintiff testified, again to reiterate, that she

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experiences five to six episodes per day that can last

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20 minutes to four hours and that she is only dizzy free four to

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY

8

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five days per month.

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impliedly rejected the dizziness claims and their effect on her

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ability to perform work-related functions, including based on

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activities of daily living and the report of Dr. Abueg who

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issued an opinion on October 24, 2017, after reviewing

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plaintiff's medical records, but not examining the plaintiff, in

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that he concluded at page 63 there's insufficient evidence in

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the file to find claimant disabled prior to the date of last

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insured.

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The Administrative Law Judge seems to have

The opinion of Dr. Jenouri is also relied on.

And

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based on a one-time examination, Dr. Jenouri found on

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September 29, 2017, that plaintiff has no restrictions based

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upon the findings of today's evaluation.

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Obviously with an episodic condition, her doctors have been

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unable to identify the origin or the etiology of plaintiff's

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dizziness, but certainly her reports have been consistent over

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time that she does experience debilitating dizziness, in one

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instance requiring her to present herself to an emergency room.

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That's at page 511.

I would expect that the Administrative Law Judge

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would have a more fulsome discussion of such a potentially

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debilitating and disabling condition, and that she would make an

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assessment of the frequency and the severity and the duration of

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the dizziness episodes and their effect, if any, on the ability

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to perform work functions on a continuing basis and,

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consequently, the impact on both absenteeism and being off task.

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

ANGELA S. v. COMMISSIONER OF SOCIAL SECURITY

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I don't find it, other than if you read between the lines, but

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it deprives the Court of meaningful judicial review not to know

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the thinking of the Administrative Law Judge when she apparently

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rejects that plaintiff would be absent or off task to an extent

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that would preclude her from performing light work available in

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the national economy.

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Again, I find this to be a close case, and I do

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respect Judge Hoffman, but I think this should be remanded for

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proper consideration and evaluation of plaintiff's dizziness and

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vertigo and the impact on her ability to perform work on a

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full-time basis, so I will grant judgment on the pleadings to

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plaintiff.

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so I will order that the matter be remanded for further

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consideration.

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I do not find persuasive evidence of disability, and

Thank you both for excellent presentations.

I hope

you have a good afternoon and a happy Thanksgiving.

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MR. GORTON:

Thank you, your Honor.

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MS. VANEGAS:

Thank you, your Honor.

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(Time noted:

11:33 a.m.)

You, as well.

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HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR,

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NYRCR, Official U.S. Court Reporter, in and for the United

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States District Court for the Northern District of New York, DO

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HEREBY CERTIFY that pursuant to Section 753, Title 28, United

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States Code, that the foregoing is a true and correct transcript

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of the stenographically reported proceedings held in the

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above-entitled matter and that the transcript page format is in

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conformance with the regulations of the Judicial Conference of

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the United States.

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Dated this 19th day of November, 2021.

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s/ Hannah F. Cavanaugh______________________

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HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR

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Official U.S. Court Reporter

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