Acquah v. Commissioner Social Security Administration
Filing
11
ORDER: that Plaintiff's motion for judgment on the pleadings is Granted; that the Acting 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; that the matter is hereby Remanded to the Acting 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 Acting Commissioner pursuant to sentence four of 42 U.S.C. 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 05/11/2017. (hmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
LESHONDA N. ACQUAH,
Plaintiff,
v.
Civil Action No.
5:16-CV-1352 (DEP)
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
LEGAL SERVICES OF CENTRAL
NEW YORK
221 S. Warren Street
Suite 300
Syracuse, NY 13202
CHRISTOPHER CADIN, ESQ.
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
REBECCA H. ESTELLE, ESQ.
Special Assistant U.S. Attorney
DAVID E. PEEBLES
CHIEF 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
Acting Commissioner, pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3), are
cross-motions for judgment on the pleadings. 1 Oral argument was
conducted in connection with those motions on May 9, 2017, 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 Acting 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
ORDERED, as follows:
1)
Plaintiff=s motion for judgment on the pleadings is GRANTED.
2)
The Acting Commissioner=s determination that plaintiff was not
1
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.
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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 Acting 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 Acting Commissioner
pursuant to sentence four of 42 U.S.C. ' 405(g) and closing this case.
Dated:
May 11, 2017
Syracuse, NY
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
LESHONDA N. ACQUAH,
Plaintiff,
vs.
5:16-CV-1352
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on May 9, 2017, at the James
Hanley Federal Building, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES,
United States Magistrate Judge, Presiding.
A P P E A R A N C E S
For Plaintiff:
LEGAL SERVICES OF CENTRAL NEW YORK
221 S. Warren Street
Suite 300
Syracuse, New York 13202
BY: CHRISTOPHER CADIN, ESQ.
For Defendant:
SOCIAL SECURITY ADMINISTRATION
Office of Regional Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: REBECCA H. ESTELLE, 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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(In Chambers, Counsel present by telephone.)
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THE COURT:
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All right.
I'll have to let that be
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the last word.
So I have before me a request for judicial
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review of an adverse determination of the Acting Commissioner
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pursuant to 42 United States Code Section 405(g) and
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1383(c)(3).
The background is as follows:
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The plaintiff was
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born in February of 1975, is currently 42 years old, was 37
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years old at the time of the alleged onset of her disability,
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and 39 at the time of the hearing in this matter.
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5-foot-8 in height and weighs 219 pounds.
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dominant.
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college education.
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has also had customer service training.
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She is
She's right-hand
She has a high school diploma and two years of
She has a CNA certificate as well.
She
She lives with her 17-year-old daughter in a
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two-family house on the first floor of that house.
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not drive and hasn't since 2012.
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October 24, 2012, except for an attempt at training at an
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Express Mart.
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stopped in that position in December of 2013.
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worked as a fast food worker, a certified nursing assistant,
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a customer service representative, she's worked in sales, as
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a factory worker, and a warehouse packer.
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324 of the administrative transcript.
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She does
She has not worked since
In her past, she was a hair stylist.
She
She has also
That's at 320 and
Physically, the plaintiff has been diagnosed with
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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multiple sclerosis with parathesis, that was in July of 2012.
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She suffers from numbness and pain from the waist down.
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also experiences migraine headaches approximately four times
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per week and fatigue.
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undergone infusions including in 2012 and twice in 2013.
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primary physician is Dr. Jianxin Ma.
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specialist, Dr. Megan Hyland.
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October 2012, July 2013, December 2013, and June 2014.
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are all contained in the record.
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She uses a cane to ambulate.
She
She has
Her
She was referred to a
She has had MRIs in
She also suffers from mental impairments.
Those
One of
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the sources or triggers was that her son was killed in
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February 2013.
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as suffering from depressive disorder at 323 and 292 and
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major depressive disorder at 534.
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for the mental conditions at the Syracuse Community Health
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Center where she sees Emily Stowell and Dr. Bill Hines.
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suffers, among other things, from crying spells.
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That's at 291 and 321.
She's been diagnosed
She's undergone treatment
She
Medically she's been treated with Wellbutrin,
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gabapentin, Gilenya, Topamax, tramadol, trazodone, hydroxy --
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hydroxyzine, Copaxone, and Amantadine.
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Procedurally, the plaintiff applied for Title II
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and Title XVI benefits on June 20, 2013 alleging an onset
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date of October 24, 2012.
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Administrative Law Judge Gregory Hamel on December 3, 2014.
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The administrative law judge issued a decision on January 30,
A hearing was conducted by
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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2015, and that became a final determination of the agency on
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September 20, 2016, when the appeals council rejected the
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request for review of that determination.
In his decision, ALJ Hamel applied the familiar
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five-step sequential test for determining disability.
At step one he concluded that the plaintiff had not
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engaged in substantial gainful activity since the alleged
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onset date.
At step two he found that she suffers from severe
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impairments including MS, headaches, obesity, and depressive
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disorder.
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At step three, he concluded that she did not meet
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or medically equal any of the listed presumptively disabling
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impairments.
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After surveying the medical records, the ALJ
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concluded that plaintiff retains the residual functional
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capacity or RFC to perform sedentary work with exceptions
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including, she can only occasionally climb stairs, balance,
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stoop, kneel, crouch and crawl, cannot climb ladders, ropes
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or scaffolds, cannot work in hazardous work environments, can
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use the hands for frequent but not constant handling,
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fingering and reaching, can do routine and repetitive tasks
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only and cannot do tasks requiring more than occasional
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public contact.
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Applying that RFC, the administrative law judge
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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concluded that plaintiff cannot meet the requirements of any
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of her past relevant work.
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medical vocational guidelines were to control, a finding of
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no disability would be required by Grid Rule 201.28.
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elicited the testimony of a vocational expert and concluded
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that plaintiff can perform as an addresser, a document
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preparer, and a cuff folder, and therefore is not disabled.
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He then indicated that if the
He
As you know, my task is limited to determining
whether correct legal principles were applied and substantial
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evidence supports the ALJ's determination.
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deferential standard.
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It is a highly
Obviously pivotal to the ALJ's finding was his
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rejection of the two opinions of Dr. Hyland and of Dr. Hines
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and Emily Stowell concerning absenteeism.
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doubt that the vocational expert concluded that if plaintiff
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was absent with the frequency opined by those individuals in
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their medical source statements, she would be disabled.
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would not -- there would not be any work available that she
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could perform in the national and local economy.
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for rejection of those appears at page 26, in the first
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paragraph.
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weight is given to Dr. Hyland's statements that the claimant
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would be absent from work more than four days per month as
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the ultimate question of disability is reserved to the
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Commissioner of Social Security Administration."
There isn't any
She
The reason
The administrative law judge states, "Little
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
And the
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second paragraph, Dr. Hines' and Ms. Stowell's opinions were
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rejected -- they weren't rejected, they were given "little
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weight" because, as noted, the ultimate question of
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disability is reserved for the Commissioner of Social
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Security Administration.
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When you look at the two regulations that control,
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20 C.F.R. Section 404.1527(d)(1) and (2), and also 20 C.F.R.
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Section 416.927(d)(1) and (2), the first relates to opinions
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that you are disabled and a statement that a claimant is
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disabled clearly is something that's reserved to the
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Commissioner.
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consideration of opinions of medical sources, whether they're
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treating or not treating, on issues such as whether listings
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are met, the residual functional capacity, or the application
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of vocational factors, although the final responsibility for
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deciding the issues clearly is reserved to the Commissioner.
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(d)(2) reserves -- does allow for
This is an extremely interesting issue, and I
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reviewed very carefully the cases both cited by plaintiff and
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cited by the Commissioner and also that I found.
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like Barry v. Colvin are consistent in my view with (d)(2),
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the regulation.
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binding on the Commissioner regarding such things as
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absenteeism, but it doesn't say they shouldn't be considered.
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Saulic is the same, Saulic v. Colvin from the Northern
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District of Ohio merely says that the opinion of a treating
So cases
It only says that the opinions are not
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
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source concerning absenteeism is not entitled to controlling
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weight, and of course that's a good decision because it notes
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the split of authority.
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of New York 2015 at footnote 5, same.
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cases like Lesterhuis v. Colvin from the Second Circuit 2015,
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Greek v. Colvin from the Second Circuit 2015, Rugless v.
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Commissioner, Second Circuit 2013, Gavazzi v. Berryhill from
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last month, Second Circuit, Smith v. Commissioner, the
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District of Vermont, 2011, Coleman v. Colvin, Eastern
Anderson v. Colvin, Western District
But when you look at
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District of New York, 2017, they all show that opinions
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concerning absenteeism at least should be considered.
And so in this case, the ALJ rejected them out of
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hand.
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Ms. Estelle give.
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not consider that opinion as indicating that the plaintiff
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could not perform gainful employment, if he had related it to
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treatment notes or related it to the type of disability or
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disabling -- I'm sorry, medical conditions that the plaintiff
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suffers from, then I would say that it was properly
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considered.
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he considered it, the ultimate question, and therefore
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rejected it out of hand.
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He didn't give the explanation that I heard
If he had, if he had explained why he did
But to me, it's pretty clear from page 26 that
On the other hand, I don't find necessarily that
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there is persuasive evidence of disability.
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matter that should be returned to the Commissioner for
JODI L. HIBBARD, RPR, CRR, CSR
(315) 234-8547
I think it's a
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further consideration of those opinions, and whether or not
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they should be rejected and if they are rejected or given
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little weight, there should be a fuller explanation for why.
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So I grant judgment on the pleadings to the
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plaintiff without a directed finding of disability, vacate
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the Commissioner's determination and remand the matter to the
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agency for further consideration.
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an interesting case and thank you for excellent
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presentations.
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MR. CADIN:
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MS. ESTELLE:
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MR. CADIN:
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Thank you both, this was
Thank you, your Honor.
Thank you.
And thank you, Counselor.
(Proceedings Adjourned, 2:35 p.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 9th day of May, 2017.
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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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