Laborgne v. Commissioner of Social Security
Filing
19
DECISION AND ORDER: For the reasons stated in the attached Decision and Order, the decision of the Commissioner is vacated and this matter is remanded for further administrative proceedings. It is further ordered that plaintiff's 13 motion for judgment on the pleadings is granted in part and denied in part and the Commissioner's 16 motion for judgment on the pleadings is denied. The Clerk shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/14/2021. (LAS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JESSICA J. L.,
Plaintiff,
v.
ANDREW SAUL, 1
Acting Commissioner of Social Security,
DECISION AND ORDER
18-CV-399-A
Defendant.
____________________________________
Plaintiff seeks review of the Commissioner of Social Security’s final decision
denying her application for Supplemental Security Income (“SSI”) disability benefits
under the Social Security Act. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and 42 U.S.C. § 1383(c)(3).
The parties have filed cross-motions for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. Nos. 13, 16), and Plaintiff filed a
reply (Dkt. No. 18). The Court assumes the parties’ familiarity with the administrative
record, the parties’ arguments, and the standard of review, to which the Court refers
only as necessary to explain its decision. See Schaal v. Apfel, 134 F.3d 496, 500-501
(2d Cir. 1998) (summarizing the standard of review and the five-step sequential
evaluation process that Administrative Law Judges [ALJs] are required to use in making
disability determinations); Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (same).
Andrew Saul is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Andrew Saul is substituted for Acting Commissioner Nancy A. Berryhill as the
defendant in this suit.
1
For the reasons stated below, the Commissioner’s motion is denied, Plaintiff’s motion is
granted in part and denied in part, the Commissioner’s final decision is vacated, and the
case is remanded for further proceedings consistent with this Decision and Order
The Court must “determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner’s decision and if the correct legal
standards have been applied.” Sczepanski v. Saul, 946 F.3d 152, 157 (2d Cir. 2020)
(quotation marks omitted); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial
evidence “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion” and is more than a “mere scintilla.” Sczepanski, 946
F.3d at 157.
DISCUSSION
Plaintiff’s primary argument is that the ALJ failed to consider or improperly
weighed relevant evidence, which resulted in a Residual Functional Capacity (RFC)
finding that was not supported by substantial evidence, warranting remand.
An individual’s RFC is “what an individual can still do despite his or her
limitations”, or in other words his or her “maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis[.] [T]he
RFC assessment must include a discussion of the individual’s abilities on that basis. A
‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent
work schedule.” Melville v. Apfel, 198 F.3d 45, 53 (2d Cir. 1999), quoting SSR 96-8p,
1996 SSR LEXIS 5 at *5, 1996 WL 374184, *2 (S.S.A. July 2, 1996). “It is well-settled
that when making an RFC assessment, an ALJ must consider all the relevant evidence,
including medical opinions and facts, claimant’s physical and mental abilities, non-
2
severe impairments, and subjective evidence of symptoms that could interfere with work
activities on a regular and continuing basis.” Williams v. Comm’r of Soc. Sec., 2020
U.S. Dist. LEXIS 151236, *7 (W.D.N.Y. Aug. 20, 2020), citing 20 C.F.R. §§ 404.1545(a)(e) and Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir. 1984).
Here, the ALJ determined that Plaintiff has the RFC to perform sedentary work, 2
except frequently understand, remember, and carry out complex and detailed tasks, and
avoid temperature extremes. (T. 799-800). 3
Sedentary work is defined by agency regulations as follows: “Sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a).
“‘[S]edentary work’ generally involves six hours of sitting and two hours of standing or
walking during [an eight-hour] workday.” Acevedo v. Berryhill, 2017 U.S. Dist. LEXIS
189899, *11 (W.D.N.Y. Nov. 16, 2017), citing Social Security Ruling (“SSR”) 83-10,
1983 SSR LEXIS 30, *13 and SSR 96-9p, 1996 SSR LEXIS 6, *8-9.
“By its very nature, work performed primarily in a seated position entails no
significant stooping. Most unskilled sedentary jobs require good use of the hands and
fingers for repetitive hand-finger actions.” SSR 83-10, 1983 SSR LEXIS 30, *13. “The
2 “An individual’s exertional capability refers to the performance of ‘sedentary,’ ‘light,’ ‘medium,’ ‘heavy,’
and ‘very heavy’ work.” Wright v. Saul, 2019 U.S. Dist. LEXIS 178337, *9, 2019 WL 5157026 (W.D.N.Y.
Oct. 15, 2019).
3
Numerals preceded by “T.” refer to pages of the administrative transcript.
3
SSA rulings indicate that an ability to bend at least occasionally is required for both light
and sedentary work.” Burton v. Colvin, 2014 U.S. Dist. LEXIS 75154, *26-27 (W.D.N.Y.
June 2, 2014) (citations omitted).
A.
Physical RFC finding
In assessing Plaintiff’s RFC, the ALJ placed “great weight” on the opinion of
consultative examiner John Schwab, D.O., rendered in October 2011. (T. 802; see T.
378-381). Dr. Schwab examined Plaintiff and noted that she had a normal gait, she
could walk on her heels and toes without difficulty, she performed a full squat, she used
no assistive devices and required no assistance getting on and off the examination
table, and she rose from her chair without difficulty. He found no abnormalities in her
musculoskeletal examination, with a full range of motion and, notably, no issues with
her lumbar spine. Dr. Schwab diagnosed Plaintiff with rheumatoid arthritis, Type I
diabetes mellitus, and tobacco abuse. He found 4.5/5 grip strength of her left hand, and
his “Medical Source Statement” was simply that she had a “mild restriction to gripping
objects in the left hand.”
It is undisputed that Dr. Schwab’s opinion is the only medical opinion in the
record regarding Plaintiff’s physical condition, and the ALJ’s decision was rendered in
January 2018, approximately six years thereafter. Because the ALJ’s decision was
issued after a previous remand from this Court, 4 the ALJ considered Plaintiff’s
voluminous exhibits that were added to the record, which included medical records
through 2017—many which Dr. Schwab did not review. (T. 793; see T. 809-812).
This Court previously remanded this case for the ALJ to determine, among other things, whether she
met Listing 12.05(c) (“Mental Retardation”) at step three of the five-step analysis. (T. 814-836). The ALJ
determined that she did not. (T. 799; see T. 386). Step three is not at issue on this appeal.
4
4
Plaintiff argues that Dr. Schwab’s opinion is stale because it was formed in
October 2011, and therefore does not take into account a large portion of medical
evidence in the record that is either contradictory or indicates that Plaintiff’s condition
worsened over time, including evidence that reflects Plaintiff’s two major surgeries (i.e.,
a lumbar fusion and a discectomy), which were unsuccessful. Plaintiff thus argues that
the ALJ erred in assigning Dr. Schwab’s opinion great weight and using it to support his
RFC finding. In a related fashion, Plaintiff contends that the ALJ improperly concluded
based on Dr. Schwab’s stale medical opinion that Plaintiff was capable of sedentary
work—and erred in effectively arriving at an RFC finding based on his own lay opinion.
In response, the Commissioner argues that Dr. Schwab’s opinion is not stale
based merely on its date, as no medical sources contradict his opinion about Plaintiff’s
minimal physical limitations and the opinion is supported elsewhere in the record. The
Commissioner points to the ALJ specifically mentioning Plaintiff’s two back surgeries
and significant walking and lifting limitations even after undergoing her back surgery, in
another portion of his decision (at step two of the five-step disability analysis). (T. 795796). Thus, the Commissioner reasons, it is apparent that the ALJ was fully aware of
Plaintiff’s later conditions when he weighed Dr. Schwab’s opinion.
“[M]edical source opinions that are conclusory, stale, and based on an
incomplete medical record may not be substantial evidence to support an ALJ finding.”
Camille v. Colvin, 104 F. Supp. 3d 329, 343 (W.D.N.Y. May 19, 2015). “A medical
opinion may be stale if it does not account for the claimant’s deteriorating condition.”
Reithel v. Comm’r of Soc. Sec., 330 F. Supp. 3d 904, 910 (W.D.N.Y. Aug. 27, 2018). It
is well-settled, however, that “a medical opinion is not stale simply based on its age. A
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more dated opinion may constitute substantial evidence if it is consistent with the record
as a whole.” Id.
The ALJ stated that he relied on the opinion of Dr. Schwab in assessing Plaintiff’s
RFC because that opinion was “supported elsewhere in the record.” (T. 802). The ALJ
did not explain, however, and it is not evident to the Court, how Plaintiff’s treatment
records support his assessment that Plaintiff has the ability to perform sedentary work.
Dr. Schwab’s opinion was based on an incomplete record, as it was rendered in
October 2011 before Plaintiff’s discectomy in June 2013, slip/ fall in December 2013
with back injury, and lumbar fusion in January 2015 for worsening chronic back pain.
(T. 1051, 1101, 1285, 1305, 1500). The latter surgery followed an MRI that noted “a L5S1 disc herniation encroaching upon the exiting right L5 nerve root and descending right
S1 nerve root.” (T. 1464, 1499). In October 2015, after the lumbar fusion, Plaintiff was
diagnosed with postlaminectomy syndrome in the lumbar region, meaning she had
continued pain following her latest back surgery. 5 (T. 1285-1287, 1699). Plaintiff’s
treatment records noted her recurrent issues with weakness and pain while walking,
limping, difficulty pushing off her right foot while walking up stairs, use of a cane at
home, and limited range of motion in her spine. (See e.g. T. 601, 1051-1056, 11221123, 1251-1252, 1266, 1305, 1704). Aside from the two surgeries, she underwent
multiple steroid injections in her lumbar spine and knees. (See e.g. T. 223, 230, 512,
516, 519-520, 522-523, 772, 1038 1251-1252). Throughout the years, she was
5 “Post-laminectomy syndrome is a condition caused by a back surgery that failed to properly treat pain
(also known as failed back surgery).” The condition can be caused by “damage to the spinal nerve root”,
formation of scar tissue as the body attempts to heal after surgery, or “a negative reaction to the structural
changes made to the spine” which this typical in a failed spinal fusion. Conditions: Post-Laminectomy
Syndrome: Non-surgical Treatments for Failed Back Surgery, National Spine & Pain Centers,
https://www.treatingpain.com/conditions/post-laminectomy-syndrome/ (last visited Apr. 14, 2021).
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prescribed opiates to treat her pain, including Norco, Tramadol, Morphine, Percocet,
and Hydrocodone. (See e.g. T. 223-224, 512, 1136, 1151, 1227, 1510, 1561-1562).
For an approximate five- to six-month period in 2016, surgery was performed to
remove Plaintiff’s gallbladder, and she suffered complications from that surgery which
required post-operative care. (See e.g. T. 1508-1512, 1658). Plaintiff also had issues
related to her uncontrolled diabetes (e.g., foot ulcers and cellulitis), although as noted
by the ALJ, the record is replete with instances of Plaintiff’s noncompliance with
treatment recommendations for her diabetes, including poor eating habits/ diet and
failure to take her diabetes medications.
It is unclear how Dr. Schwab’s opinion of only a mild restriction of gripping
objects comports with the years of medical evidence of record that Dr. Schwab did not
have the benefit of reviewing; moreover, his examination took place before Plaintiff’s
various surgeries and worsening back pain. Dr. Schwab noted, for example, Plaintiff’s
normal gait, squatting, walking with no assistive devices, and rising from a chair or
table, as well as her full range of motion and unexceptional lumbar spine—all
documented issues, however, in the years following the examination. The ALJ did note
Plaintiff’s two back surgeries and difficulties with lifting and walking, and her
postlaminectomy syndrome at step two of his analysis. (T. 795, 800). The ALJ
highlighted Plaintiff’s routine rating of her low back pain as 1 to 2 (low end) of a 1-to-10
pain scale after her second surgery in January 2015. (T. 802). The records cited by the
ALJ reveal that Plaintiff reported 1/10 and 2/10 in severity but she qualified these
statements by stating that her pain was aggravated by certain activities (i.e., walking
long distances, lifting, bending, and prolonged standing) and was alleviated by rest. (T.
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1038 [“overall” improvement but pain waxed and waned in severity throughout the day],
1051, 1054, 1227, 1251-1252). In addition, these low-end reports of back pain do not
negate the years of severe back pain that Plaintiff regularly reported to her treatment
providers after October 2011.
At the administrative hearing held in September 2017, Plaintiff testified that she
had difficulty lifting objects (she was not allowed to lift anything over 5 pounds) and
bending over and rising back up, and she was not supposed to place pressure on her
foot. Plaintiff testified that she was unable to stoop, as the ALJ recognized in his
decision. (T. 800). She also described difficulty climbing stairs because she had to
place weight on her left side, as her right side/ leg had been affected by her back
surgery. Plaintiff further described pain and swelling in her back following her surgeries
and her limitation to 20-30 minutes of standing. She performed housework for only 15
to 20 minutes and then would take a break for 20 to 30 minutes (lying down on her bed)
before resuming work. Plaintiff further testified that her rheumatoid arthritis was
triggered when the temperature was too cold or too hot. (T. 841-842, 846-849, 853854).
“While an inability to bend more than occasionally would not ‘substantially affect
an individual’s ability to perform . . . sedentary work,’ McDonaugh v. Astrue, 672 F.
Supp. 2d 542, 571 (S.D.N.Y. 2009) (citing SSR 85-15, 1985 SSR LEXIS 20, 1985 WL
56857, at *2-3 (1985)), a complete inability to stoop would render an individual
incapable of unskilled sedentary work.” Bleil v. Colvin, 2017 U.S. Dist. LEXIS 48753,
*27 (N.D.N.Y. Mar. 31, 2017). The vocational expert (“VE”) testified that an individual
who needed unscheduled breaks or rest periods would be problematic for any job that
8
would fit in the designated hypothetical if the individual was off-task for 15% or more of
the work day. (T. 858). The ALJ apparently gave no weight to the VE’s finding that
frequent rest breaks could prevent a claimant from working, or Plaintiff’s testimony
about other physical limitations. The physical RFC includes no accommodations for
breaks or changing positions, lifting objects over 5 pounds, or bending over.
It is well settled that “[a]n ALJ is not qualified to assess a claimant’s RFC on the
basis of bare medical findings, and as a result an ALJ’s determination of RFC without a
medical advisor’s assessment is not supported by substantial evidence.” Urban v.
Berryhill, 2017 WL 1289587, *3 (W.D.N.Y. Apr. 7, 2017) (internal citation and quotation
marks omitted). As such, “even though the Commissioner is empowered to make the
RFC determination, [w]here the medical findings in the record merely diagnose [the]
claimant’s exertional impairments and do not relate those diagnoses to specific residual
functional capabilities, the general rule is that the Commissioner may not make the
connection himself.” Id. (internal citation and quotation marks omitted). “Still,
depending on the circumstances, like when the medical evidence shows only minor
physical impairments, ‘an ALJ permissibly can render a common sense judgment about
functional capacity even without a physician’s assessment.’” Stoeckel v. Comm'r of
Soc. Sec., 2019 U.S. Dist. LEXIS 185028, *6, 2019 WL 5445518 (W.D.N.Y. Oct. 24,
2019) (internal citation omitted).
The Court concludes that the ALJ cannot render a “common-sense judgment” in
this case about Plaintiff’s physical RFC, due to the multiple, complex surgeries and
treatment described above. Moreover, the ALJ could not make the connection between
the medical records and Plaintiff’s functional limitations himself, where the medical
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assessment relied upon by the ALJ was stale and based on an incomplete medical
record. No medical source opined about Plaintiff’s ability to perform the necessary
activities of sedentary work, and the ALJ did not explain the basis for his unstated
conclusion that Plaintiff would be capable of walking for up to 6 hours, and standing or
walking for up to 2 hours, per 8-hour workday. Likewise, the ALJ did not provide any
rationale for his implicit finding that Plaintiff could fulfill the sitting, standing, lifting,
carrying, and bending requirements of a full range of sedentary work.
Plaintiff further argues that the ALJ should have also provided a function-byfunction analysis of the seven strength demands in exertional capacity, i.e., her ability to
sit, stand, walk, lift, carry, push, and pull in the context of an 8-hour workday, as limited
by her impairments.
“An ALJ’s failure to express a claimant’s RFC in a function-by-function analysis
does not necessarily mandate remand so long as the RFC is otherwise supported by
substantial evidence.” Pullins v. Comm'r of Soc. Sec., 2019 U.S. Dist. LEXIS 213324,
*8-9, 2019 WL 6724586 (W.D.N.Y. Dec. 11, 2019) (internal citations and quotation
marks omitted); see Cichocki v. Astrue, 729 F.3d 172, 176-177 (2d Cir. 2013) (declining
to adopt a per se rule requiring remand where an “explicit” function-by-function analysis
is not performed). “Although remand is not automatic, it would be appropriate ‘where an
ALJ fails to assess a claimant’s capacity to perform relevant functions, despite
contradictory evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.’” Houseman v. Colvin, 2015 U.S. Dist. LEXIS 144637, *22,
2015 WL 6442571 (W.D.N.Y. Oct. 21, 2015), quoting Cichocki, 729 F.3d at 177.
10
The RFC is not based on substantial evidence, and the ALJ’s analysis has
complicated the Court’s ability to review the ALJ’s decision. There is contradictory
evidence in the record regarding Plaintiff’s ability to occasionally lift objects up to 10
pounds or bend over, and it is questionable whether she would be able to sit for six
hours and stand or walk for two hours, as required by sedentary work. Remand is
warranted here where, in the absence of a supporting medical opinion, the ALJ implied
that Plaintiff has the capacity to perform sedentary work because, for example, (1) she
exercised “regularly”, (2) she had certain hobbies, and (3) her x-ray results showed no
significant findings. The ALJ relied on such findings as supportive of his determination,
with respect to Plaintiff’s physical RFC, that “[t]he evidence does not support the
claimant’s allegations of symptom severity.” (T. 801). The Court does not find this
reasoning persuasive.
First, the cited records establish only that Plaintiff stated she swam, as well as
walked three or seven days per week (duration of the walks unaddressed) (T. 376, 515,
519, 580, 589, 1044-1045, 1134, 1151). Plaintiff stated at one of these medical
appointments that she was not working due to low back pain, including her need to readjust her position “constantly” while standing, sitting, or lying down. (T. 519).
Second, Plaintiff’s hobbies of reading and woodcarving (T. 376, 580, 589), and
her testimony concerning her activities of daily living to include household chores and
sitting on the floor to play with her young niece and nephews, as also noted by the ALJ
(T. 800; see T. 851-852), do not involve standing or walking for extended periods of
time, “nor are they necessarily indicative of Plaintiff’s ability to perform sedentary work,
with some additional restrictions, over the course of an eight-hour workday.” Fairuz B.
11
v. Saul, 2021 U.S. Dist. LEXIS 15520, *21-22 (W.D.N.Y. Jan. 27, 2021), citing Williams
v. Bowen, 859 F.2d 255, 260 (2d Cir. 1988) (“A claimant need not be an invalid to be
found disabled under...the Social Security Act.”).
Third, the ALJ noted that Plaintiff’s “June 2011 cervical spine x-rays showed
minimal spondylosis without any significant findings” (T. 802 [emphasis added]).
Plaintiff’s lumbar spine (back) was it issue, not her neck. The ALJ determined at step
two of his analysis that Plaintiff had severe impairments to include post-laminectomy
syndrome and lumbar radiculopathy, and noted that an MRI and CT scan of Plaintiff’s
lumbar spine from 2013 and 2014 showed, respectively, “disc herniation with
impingement upon the ventral sac and both nerve roots at L5-S1.” (T. 795). Oddly,
Plaintiff’s lumbar spine conditions and related diagnostic imagining results were not
mentioned in the ALJ’s analysis of Plaintiff’s physical RFC.
Accordingly, the Court concludes that remand is appropriate, and instructs the
ALJ on remand to obtain a physical RFC assessment or medical source statement from
an acceptable medical source concerning Plaintiff’s physical capabilities, in other words,
assessing how Plaintiff’s limitations affect her physical ability to perform work-related
functions. Further, in assessing Plaintiff's RFC, the ALJ should provide a specific
rationale as to how the medical and/or opinion evidence supports his physical RFC
finding and should explain the weight afforded the opinion evidence.
Upon remand, after re-assessing Plaintiff’s RFC with a medical opinion that
accounts for Plaintiff’s deteriorating condition and that is based on a complete medical
record, the ALJ should consider Plaintiff’s limitations and their affects upon Plaintiff’s
ability to perform any job in the national economy. The ALJ shall “if warranted by the
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expanded record, obtain testimony from a vocational expert to clarify any additionally
assessed limitations on Plaintiff’s ability to work and jobs available in the national
economy.” Wright v. Saul, 2019 U.S. Dist. LEXIS 178337, *12-13, 2019 WL 5157026
(W.D.N.Y. Oct. 15, 2019). Having done so, the ALJ will be able to complete the RFC
determination and his five-step analysis of Plaintiff’s ability to work.
B.
Plaintiff’s remaining challenges to the ALJ’s decision
Plaintiff’s remaining arguments concerning the ALJ’s credibility determinations
and the ALJ’s mental RFC finding need not be considered at this time because further
development of the record on remand may affect those determinations. See e.g. Davis
v. Berryhill, 2018 U.S. Dist. LEXIS 39605 *10, 2018 WL 1250019 (W.D.N.Y. Mar. 9,
2018) (“Having already determined that remand of this matter is required [because the
ALJ failed to obtain an updated opinion regarding his mental impairments], the Court
need not and does not resolve this issue [whether the ALJ failed to comply with a
directive from the Appeals Council’s order]. On remand, the ALJ should properly
consider all the evidence of record . . .”); Brink v. Colvin, 2017 U.S. Dist. LEXIS 89909,
*8, 2017 WL 2531711 (W.D.N.Y. June 12, 2017) (“The Court need not reach plaintiff’s
arguments regarding the ALJ’s credibility finding, because it has already determined
that remand is necessary. On remand, the Commissioner is instructed to reconsider the
credibility finding in light of the record as a whole.”).
C.
Time limit for further administrative proceedings
Plaintiff argues that the Court should order a remand for further administrative
proceedings on an expedited basis, i.e., to order that the Commissioner issue a new
determination within a certain timeframe. (Dkt. No. 18, pp. 9-10).
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The Court is cognizant of the hardships that Plaintiff must have experienced
because of her pursuit of benefits for nearly ten years. Plaintiff filed her initial
application for SSI disability benefits on August 18, 2011. (T. 125). Her initial ALJ
hearing was on February 19, 2013 (T. 43), and she received an unfavorable ALJ
decision on March 13, 2013 (T. 862). The Appeals Council denied Plaintiff’s request for
review on May 23, 2013. (T. 862). Plaintiff commenced a civil action on July 18, 2014,
and on August 20, 2015, the Commissioner’s decision was reversed on grounds that
the ALJ failed to consider Listing 12.05(c) and remanded the case. (T. 827). On
September 25, 2015, the Appeals Council ordered the ALJ to consider the case on the
grounds it was remanded for. (T. 814). On September 25, 2017, the ALJ held another
hearing. (T. 837). The ALJ issued the instant unfavorable decision on January 8, 2018.
(T. 789). Plaintiff then filed the instant action on March 30, 2018. (Dkt. No. 1).
The Court denies Plaintiff’s request, however. Plaintiff has not yet demonstrated
that she is disabled (compare Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004),
amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005) and Michaels v. Colvin, 621 Fed.
App’x 35, 41 (2d Cir. 2015) (summary order)), and regardless, to impose a time-limit
could frustrate the rights of other litigants to a timely determination of disability and/or
benefits. In any event, “this Court ‘expects,’ especially in light of the delay that [Plaintiff]
has experienced because this case already has been remanded once due to the
Commissioner’s errors, ‘that administrative proceedings on remand [will] proceed
expeditiously.’” Annis v. Comm'r of Soc. Sec., 2019 U.S. Dist. LEXIS 216459, *30, 2019
WL 6875231 (W.D.N.Y. Dec. 17, 2019), quoting Belen v. Colvin, 2016 U.S. Dist. LEXIS
31755, 2016 WL 1048058, at *4 (S.D.N.Y. Mar. 11, 2016).
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CONCLUSION
Is hereby ORDERED that pursuant to 28 U.S.C. § 636(b)(1) and for the reasons
set forth above, the decision of the Commissioner is VACATED, and this matter is
REMANDED for further administrative proceedings consistent with this Decision and
Order. It is further ordered that the Commissioner’s motion for judgment on the
pleadings (Dkt. No. 16) is DENIED, and Plaintiff’s motion for similar relief in her favor
(Dkt. No. 13) is GRANTED in part and DENIED in part.
The Clerk of the Court shall take all steps necessary to close the case.
IT IS SO ORDERED.
__s/Richard J. Arcara_________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 14, 2021
Buffalo, New York
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