Mohammed v. Saul

Filing 18

ORDER: 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 t he 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. Signed by Magistrate Judge David E. Peebles on February 18, 2021. [Transcript attached] (kmc)

Case 6:19-cv-01471-DEP Document 18 Filed 02/18/21 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
BAHAR M.,
v.

Plaintiff,

Civil Action No.
6:19-CV-1471 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
LEGAL AID SOCIETY OF
OF MID-NEW YORK, INC.
221 S. Warren St., Suite 310
Syracuse, NY 13202

ELIZABETH V. KRUPER, ESQ.

FOR DEFENDANT
HON. ANTOINETTE BACON
Acting United States Attorney
for the Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198

LUIS PERE, ESQ.
Special Assistant U.S. Attorney

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ORDER
Currently pending before the court in this action, in which plaintiff

Case 6:19-cv-01471-DEP Document 18 Filed 02/18/21 Page 2 of 14

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. 1 Oral argument was conducted in connection with those
motions on February 11, 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
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

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.

1

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Case 6:19-cv-01471-DEP Document 18 Filed 02/18/21 Page 3 of 14

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:

February 18, 2021
Syracuse, NY

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Case 6:19-cv-01471-DEP Document 18 Filed 02/18/21 Page 4 of 14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
BAHAR M.,
Plaintiff,
-v-

6:19-CV-1471

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. PEEBLES
February 11, 2021
100 South Clinton Street, Syracuse, New York

For the Plaintiff:
(Appearance by telephone)
LEGAL AID SOCIETY OF MID-NEW YORK, INC.
221 South Warren Street
Suite 310
Syracuse, New York 13202
BY: ELIZABETH V. KRUPAR, ESQ.
For the Defendant:
(Appearance by telephone)
SOCIAL SECURITY ADMINISTRATION
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, Massachusetts 02203
BY: LUIS PERE, ESQ.

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

Case 6:19-cv-01471-DEP Document 18 Filed 02/18/21 Page 5 of 14
BAHAR M. v. COMMISSIONER OF SOCIAL SECURITY
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(The Court and all counsel present by telephone.
Time noted:

11:24 a.m.)

THE COURT:

Let me begin by thanking counsel for

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excellent presentations.

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interesting and slightly different from some that the Court

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faces in these types of challenges.

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The issues raised in this case are

I have before me a challenge by the plaintiff to the

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determination of the Commissioner of Social Security that

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plaintiff was not disabled at the relevant times and therefore

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ineligible for the benefits sought.

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

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The challenge is brought

The background is as follows:

Plaintiff was born in

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July of 1967.

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5'1" -- between 5'1" and 5'4" in height depending upon the point

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in the Administrative Transcript that you refer to, and has

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weighed at various times between 154 to 165 pounds.

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is divorced and lives in an apartment in Utica, New York with a

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daughter who is now 18 years of age.

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She is currently 53 years of age.

She stands

Plaintiff

Plaintiff attended regular classes while in school

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and has four years of college education all in Iraq.

Plaintiff

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is currently attending Mohawk Valley Community College and

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pursuing a criminal justice Associate's degree.

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receives As and Bs.

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Wednesday, and Friday and three hours on Tuesdays and Thursdays.

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Plaintiff is right-handed.

She reports she

She attends class one hour per day Monday,

She has a driver's license, but

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
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BAHAR M. v. COMMISSIONER OF SOCIAL SECURITY

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testified that she only drives on a limited basis.

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that she has been involved in more than one motor vehicle

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accident.

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It appears

Plaintiff is able to take public transportation.
Plaintiff last worked in June of 2014, although her

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last significant work was in 2012.

While working, she served as

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an interpreter for the United States Army interpreting primarily

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conversations and oral statements into English or from English

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to Arabic.

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After coming to the United States, she worked from 2010 to 2012

She also was a news television employee in Iraq.

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in Austin, Texas at a Goodwill location as a clothes sorter.

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She has also been a substitute teacher.

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Plaintiff suffers from several physical impairments

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including migraines, neck pain, lower back pain, leg pain, a

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foot issue, hypertension, carpal tunnel syndrome of the left

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hand -- although she has refused surgery for that condition -- a

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left shoulder issue which surgery has been postponed for, and a

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loss of high frequency hearing based upon testing that occurred

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in January of 2018.

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Mentally, she suffers from major depressive disorder

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without psychotic features, anxiety, and depression.

She has no

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hospitalization or significant mental health treatment.

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Plaintiff's primary treatment provider, at least since March of

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2014, is Dr. Naji El-Khoury.

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Dr. Lev Goldiner and Christopher Powers.

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Physician's Assistant Heidi Roloson.

For her foot issues, she has seen
She has seen

She had a benign cyst

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
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BAHAR M. v. COMMISSIONER OF SOCIAL SECURITY
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removed in May of 2016 by Dr. Dennis Blom.

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Ahmed Shatla, a neurologist.

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Dr. Deep Bharaj and Dr. John Sullivan.

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She has seen Dr.

Since June of 2013, she has seen

Plaintiff's activities of daily living include the

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ability to groom, dress, bathe, shop with her daughter, wash

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dishes, do some cooking.

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television.

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She likes to read and watch

Plaintiff has been prescribed various medications
including Cyclobenzaprine, Morphine, Naproxen, Paroxetine,

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Topamax, Neurontin, Flexeril, Verapamil, Omeprazole, Paxil,

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Cymbalta, and Imitrex.

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migraines.

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And I omitted when I -- oh, I did say

I'm sorry.
Procedurally, plaintiff applied for Title XVI

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benefits in August of 2015 alleging an onset date of June 1,

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2012, and claiming disability based on migraines, a left

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shoulder injury, and a disc in the neck injury.

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conducted on September 14, 2017, by Administrative Law Judge

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Roxanne Fuller.

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of which were adjourned in order to permit plaintiff to obtain

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representation.

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decision on November 28, 2017, finding that plaintiff was

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disabled effective when she turned 50 on July -- in July of 2017

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pursuant to Medical Vocational Guideline or Grid Rule 201.14.

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On January 16, 2018, the Social Security Administration Appeals

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Council issued a notice that it had reviewed, or was reviewing,

A hearing was

That came after two prior hearing dates, both

ALJ Fuller issued a partially favorable

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

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an order of remand with directions to address several issues

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that were found to be deficient in the Administrative Law

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Judge's determination.

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October 11, 2018, by Administrative Law Judge Jennifer Gale

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Smith.

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November 26, 2018.

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agency on October 17, 2019, when the Appeals Council denied

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plaintiff's application for a review.

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On May 3, 2018, the Appeals Council issued

A subsequent hearing was conducted on

The ALJ issued a fully unfavorable decision on
That became a final determination of the

This action was commenced

on November 25, 2019, and is timely.
In her decision, the Administrative Law Judge applied

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the familiar five-step sequential test for determining

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disability.

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in substantial gainful activity since the date of her

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application on August 24, 2015.

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She found initially that plaintiff had not engaged

At step two, she concluded that plaintiff suffers

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from severe impairments that impose more than minimal

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limitations on her ability to perform work functions, including

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cervical spine disorder, lumbar spine disorder, bilateral

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shoulder disorder, plantar fasciitis, left carpal tunnel

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disorder, left knee disorder, migraine headaches, depressive

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disorder, and anxiety disorder.

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At step three, Administrative Law Judge Smith

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concluded that plaintiff's conditions do not meet or medically

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equal any of the listed presumptively disabling conditions set

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
Official U.S. Court Reporter

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forth in the Commissioner's regulations, specifically

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considering listings 1.02, 1.04, 11.14, 12.04, and 12.06.

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ALJ Smith next concluded that plaintiff retains the

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residual functional capacity, or RFC, to perform sedentary work

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with additional limitations addressing both her physical and her

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mental impairments.

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the key issues raised by the plaintiff in this case, the

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residual functional capacity provides, quote, the claimant can

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tolerate no more than moderate levels of noise as defined in

When it comes to hearing, which was one of

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Appendix D of the Selected Characteristics of Occupations, 1993

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edition, closed quote.

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At step four, the Administrative Law Judge concluded

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that plaintiff is capable of performing her past relevant work

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as an interpreter/translator pursuant to testimony given by the

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vocational expert and, therefore, concluded that plaintiff was

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not disabled and found no need to proceed to step five of the

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sequential analysis.

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The Court's function in this case is to determine

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whether correct legal principles were applied and the resulting

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determination is supported by substantial evidence, which is

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defined as such relevant evidence as a reasonable mind would

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accept to support a conclusion.

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Appeals noted that this is a stringent test, it is highly

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deferential.

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Social Security Administration Commissioner, 683 F.3d 443, from

The Second Circuit Court of

That was noted in many cases, including Brault v.

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
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2012.

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The plaintiff has raised four basic contentions in

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support of her challenge to the Commissioner's determination,

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the first is the failure to reference and accommodate her

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hearing impairment, and woven into that or subsumed into that is

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the contention that the vocational expert and the ALJ both used

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incorrect DOT information and mischaracterized the nature of her

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prior work as an interpreter/translator; secondly, the plaintiff

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contends that the treating source rule was violated and that Dr.

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El-Khoury's opinions were not properly weighed and given

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controlling weight in this case; the third argument is that

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plaintiff's subjective complaints were improperly evaluated,

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what we previously referred to as the credibility analysis; and

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fourth, she contends there was a conflict in the vocational

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expert's testimony between the testimony and the Dictionary of

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Occupational Titles that went unresolved and therefore requires

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a remand.

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Addressing the first argument, the hearing loss

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argument, on January 11, 2018, a hearing test was conducted.

It

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was found that there was a moderate to profound high frequency

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sensorineural loss.

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Administrative Transcript.

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qualifies for bilateral hearing aids.

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Judge did not discuss or refer to the hearing result.

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Commissioner argues, clearly there is no duty to discuss every

The results appear at 1124 to 1125 of the
The notation also is that plaintiff
The Administrative Law
As the

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
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piece of evidence and it is also true that it is plaintiff's

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burden to show limitations and it is -- it is not sufficient to

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show a diagnosed impairment to carry that burden.

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It is clear to the Court that the vocational expert

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and the Administrative Law Judge did misclassify plaintiff's

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prior job.

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that it should have been analyzed under DOT 137.267-010,

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entitled interpreter.

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in relevant part, translates spoken passages from one language

From the testimony of what she did, it appears clear

The description of that position states,

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into another.

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this is exactly what the plaintiff did in her prior work in Iraq

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for the United States Army.

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when it addresses hearing, states, constant-exists two-thirds or

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more of the time.

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From the testimony, it's relatively clear that

Significantly, that DOT section,

So in plaintiff's position, one of the four elements

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would appear to be the ability to hear and to be able to

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translate spoken words.

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defendant's argument that plaintiff initially did not claim

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hearing loss as -- either initially or in her hearing as a basis

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for disability, and I also agree that there are -- many, many

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treatment notes from Dr. El-Khoury finding no hearing loss,

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including one from July of 2018 which postdates the hearing

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test.

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should have discussed this and should have explained why there

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was no limitation in the residual functional capacity and

In the Court's view, I understand

Nonetheless, in my view, the Administrative Law Judge

HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR
Official U.S. Court Reporter

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present it to a vocational expert as to whether this would

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impair the plaintiff's ability to perform her past relevant

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work.

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I understand the argument that the limitation to

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moderate levels of noise addresses this, but I don't accept it.

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I don't see how moderate levels of noise is sufficient to

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address a hearing loss and a potential inability to perform the

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past relevant work as a interpreter, so I do find error at the

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step four determination that plaintiff is capable of performing

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her past relevant work, and the failure to address and discuss

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the hearing loss reflected in the January 2018 testing, and so I

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am going to vacate the Commissioner's determination and order a

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remand to address this specific issue, including whether

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additional testing and/or a consultative expert opinion should

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be elicited.

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And I will add that although I don't foreclose the

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submission of the Equal Access to Justice Act petition for fees,

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I would in all likelihood find that the Commissioner's position

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in this case was substantially justified.

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very close case and I went back and forth, candidly, with regard

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to this issue, but in the end, I think it is so central -- the

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ability to hear is so central to the job that the plaintiff

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performed and it was the -- was pivotal to the finding of no

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disability that I think the hearing test should have been

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discussed and potentially a limitation in the residual

I found it to be a

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functional capacity should have resulted, so I will grant

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judgment on the pleadings to the plaintiff.

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persuasive evidence of disability and so the remand will be

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without a directed finding of disability.

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I don't find any

As previously stated, thank you both for excellent

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presentations and I hope you stay safe in this challenging

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environment.

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MS. KRUPER:

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MR. PERE:

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Thank you, your Honor.

Thank you, your Honor.

(Time noted:

11:41 a.m.)

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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 16th day of February, 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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