Vinson v. Colvin
Filing
11
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings; denying 8 Defendant's Motion for Judgment on the Pleadings; and reversing the Commissioner's decision and remanding the matter solely for calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/9/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHELLE PATRICE VINSON,
No. 6:15-cv-06006(MAT)
DECISION AND ORDER
Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Michelle Patrice Vinson (“Plaintiff”), represented by counsel,
brings this action pursuant to Title II of the Social Security Act
(“the
Act”),
seeking
review
of
the
final
decision
of
the
Commissioner of Social Security (“the Commissioner”) denying her
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
II.
Procedural Status
On May 16, 2011, Plaintiff protectively filed an application
for DIB alleging disability since May 13, 2010, due to a neck
injury and lower back injury. After the application was denied on
November 18, 2011, Plaintiff requested a hearing, which was held
before administrative law judge Michael W. Devlin (“the ALJ”) on
February 26, 2013. Plaintiff was represented at the hearing by an
attorney. Impartial vocational expert Peter Manzi testified at the
hearing, as did Plaintiff. The ALJ issued an unfavorable decision
on May 28, 2013. T.24-36.1 The Appeals Council denied her request
for review on November 7, 2014, making the ALJ’s decision the
Commissioner’s final decision. This timely action followed, in
which Plaintiff is represented by a new attorney.
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. The Court adopts and incorporates by
reference herein the undisputed factual recitations contained in
the parties’ briefs. The Court will discuss the record evidence in
further detail
below,
as necessary
to
the
resolution
of
the
parties’ contentions. For the reasons discussed below, the Court
reverses the Commissioner’s decision and remands the matter for
calculation and payment of benefits.
III. The ALJ’s Decision
The ALJ applied the well-established five-step sequential
evaluation
promulgated
by
the
Commissioner
for
adjudicating
disability claims. See 20 C.F.R. § 404.1520(a).
At step one, the ALJ found that Plaintiff meets the insured
status requirements of the Act through December 31, 2017, and has
not engaged in substantial gainful activity since May 13, 2010, the
alleged onset date. T.26. At step two, the ALJ found that Plaintiff
has the following severe impairments: degenerative changes of the
1
Numerals preceded by “T.” refer to pages from the certified transcript of
the administrative record, submitted by the Commissioner in connection with her
answer to the complaint.
-2-
cervical spine with spinal canal stenosis and cervical myelopathy;
status post cervical fusion/laminectomy associated with chronic
neck
pain,
with
more
right-shoulder
than
left-shoulder
pain;
multi-level degenerative changes of the thoracic spine; chronic low
back pain with radiculopathy and neuropathic symptoms and signs of
the right leg; migraine headaches; and obesity. T.26. The ALJ found
that claimant has the following non-severe impairments: history of
sickle cell trait and recurrent iron deficiency anemia; remote
history
of
gastric
bypass
g a st r o pa t h y / g a s tro e s o phageal
surgery;
reflux
mild
reactive
dis e a s e ;
and
depression/anxiety. T.27. The ALJ also found that Plaintiff has
diabetes; hypertension; hypothyroidism; and gastroesophageal reflux
disease, but that they have “been well maintained, resolved and/or
have required no more than conservative treatment measures.” T.27.
Because the ALJ determined at step three that Plaintiff did
not meet or equal any listed impairment, he proceeded assess
Plaintiff’s residual functional capacity (“RFC”). According to the
ALJ, Plaintiff can perform
less than a full range of sedentary work, specifically:
occasionally lift and/or carry less than 10 pounds;
frequently lift and/or carry no appreciable weight; stand
and/or walk at less than two hours in an eight hour
workday; sit about eight hours in an eight hour workday;
he allowed to sit for 1-2 minutes after standing for 15
minutes and he allowed to stand 1-2 minutes after sitting
for 30 minutes; occasionally push and/or pull less than
10 pounds; rarely climb ramps and/or stairs, balance,
stoop,
kneel,
crouch,
or
crawl;
never
climb
ladders/ropes/scaffolds; never reach overhead with either
upper extremity; and frequently reach, handle, and finger
-3-
with both upper extremities occasional reach (all other
directions), handle, and finger with both upper
extremities.
T.28.
The ALJ found that Plaintiff had past relevant work as a
psychiatric aide (DOT# 355.377-014), a semi-skilled
(svp 4), medium exertional job that she actually performed at the
heavy exertional level. T.35.2 The demands of that work exceed her
current RFC, however. Id. As of the onset date of May 13, 2010,
Plaintiff was 46 years-old, making her a “younger individual” (age
45-49) under the Regulations; and she had at least a high school
education and could communicate in English. Considering her age,
education, work experience, and RFC, the ALJ found, based on the
vocational expert’s testimony, that Plaintiff could perform the
requirements of representative occupations such as table worker
(DOT #739.687-182, unskilled (svp 2), sedentary) and addresser (DOT
#209.587-010, unskilled (svp 2), sedentary), both of which exist in
significant
numbers
in
the
national
and
regional
economies.
Therefore, the ALJ entered a finding of “not disabled.”
2
When Plaintiff ceased working due to her disability in May 2010, she was
employed part-time by the Rochester Psychiatric Center (“RPC”) as a
pharmaceutical technician working in the lab. T.44. Prior to that she worked
full-time at RPC as a senior security hospital treatment assistant, dealing with
the criminally insane. T.45. In March 2009, she sustained a fall at work and reinjured her back, knee, and buttocks, which is why she was transferred to the job
in the lab. T.47. Plaintiff also had worked at Berkshire Farm, State-run facility
for young adults, as one of the first-line of security staff. T.46-47. In total,
she had 27 years and 9 months of employment with the State. T.46.
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IV.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). “Failure to apply
the correct legal standards is grounds for reversal.” Townley, 748
F.2d at 112.
V.
Discussion
A.
The ALJ’s RFC Is Not Supported by Substantial Evidence.
Plaintiff argues that in formulating the limitations in the
RFC assessment, the ALJ did not rely on actual medical evidence or
opinion but instead substituted his own lay opinion.
Social Security Ruling (“SSR”) 83-10 defines RFC as follows:
“A medical assessment of what an individual can do in a work
setting in spite of the functional limitations and environmental
-5-
restrictions imposed by all of his or her medically determinable
impairment(s). . . .” SSR 83-10, 1983 WL 31251, at *7 (S.S.A.
1983). “As explicitly stated in the regulations, RFC is a medical
assessment;
therefore,
the
ALJ
is
precluded
from
making
his
assessment without some expert medical testimony or other medical
evidence to support his decision.” Gray v. Chater, 903 F. Supp.
293, 301 (N.D.N.Y. 1995) (citing 20 C.F.R. § 404.1513(c), (d)(3));
other citation omitted).
Plaintiff contends that the sitting
and standing limitations created by the ALJ, requiring Plaintiff to
sit
for
1-2
minutes
after
standing
15
minutes,
and
stand
1-2 minutes after sitting 30 minutes, T.28, are not supported by
any particular medical opinion and are based solely on the ALJ’s
intuition or conjecture. Therefore, Plaintiff argues, remand is
warranted. See Dkt #9, p. 2 (citing Cosnyka v. Colvin, 576 F. App’x
43, 46 (2d Cir. 2014) (summary order)). In Cosnyka, the ALJ found
that the claimant would be off task approximately ten percent of
the workday, which the ALJ there defined as six minutes out of each
hour. Relying upon the testimony of the vocational expert that
being off-task six minutes out of every hour would not prevent
Cosnyka from holding a job, the ALJ concluded that he was not
disabled under the Act. The Second Circuit found that the ALJ’s RFC
finding and consequent interpretation of the vocational expert’s
testimony
was unsupported,
see
Cosnyka,
576
F. App’x
at
46,
explaining that the ALJ’s determination that this “off-task” time
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translated to six minutes out of every hour “was not based on the
record but was the result of the ALJ’s own surmise.” Id. The Second
Circuit observed that an orthopedic examiner had reported Cosnyka
would require “regular comfort breaks,” but did not indicate the
length of those breaks; and that Cosnyka testified that he can sit
for “[m]aybe up to three” hours if he can shift around in his seat,
and that he would need more frequent breaks after that. However,
there was “no evidence in the record to the effect that Cosnyka
would be able to perform sedentary work if he could take a
six-minute break every hour, rather than some other duration and
frequency amounting to ten percent of the workday.” Id. Indeed, the
Second Circuit noted the existence of evidence in the record to the
contrary: Cosnyka testified that he would need a 15–20 minute break
to walk off his pain caused by sitting. Id. Accordingly, the Second
Circuit found “no basis for the ALJ to incorporate this ‘six
minutes per hour’ formulation into the RFC finding.” Id. Moreover,
the Second Circuit noted, the vocational expert’s opinion that
there
were
jobs
that
Cosnyka
could
perform
was
based
upon
hypothetical questions involving the ALJ’s six-minutes per hour
formulation. Given that the ALJ’s six-minutes per hour limitation
in the RFC was unsupported by substantial evidence, the vocational
expert’s testimony based on that limitation necessarily was flawed.
Here, treating source Dr. Andrew Wolff, whose opinion the ALJ
accorded “great” weight, completed a Medical Source Statement of
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Ability
to
Do
Work-Related
Activities
(Physical)
(“MSS”)
on
January 18, 2013. See T.345-48. One question on the MSS asked “how
many hours total (with normal breaks) can the individual sit,” and
the options given on the form were as follows: “less than about
6 hours in an 8-hour workday;” “about 6 hours in an 8-hour
workday;” or “must periodically alternate sitting and standing to
relive pain or discomfort (if checked, explain in item 5).” T.346.
Dr. Wolff checked off the third option (periodically alternate
sitting and standing). In item 5, the form asked what medical
findings supported Dr. Wolff’s conclusions; Dr. Wolff wrote, “arm
weakness due to cervical myelopathy,” and “leg pain and weakness
due to lumbosacral radiculopathy.” T.346. Dr. Wolff also stated
that Plaintiff could only stand and/or walk less than two hours in
an eight-hour workday. T.345. This limitation is inconsistent with
sedentary
work which
“generally
involves
up
to two
hours of
standing or walking and six hours of sitting in an eight-hour work
day.” Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing SSR
83-10; 20 C.F.R. § 404.1567(a)).
Similarly, consultative examiner
Dr. Karl Eurenius, to whose opinion the ALJ assigned “significant”
weight, did not provide any specifics as to the duration of time
Plaintiff
could sit,
stand,
and
walk;
he
simply
opined
that
Plaintiff was “limited” with regard to “prolonged” sitting and
“prolonged”
standing,
but
did
not
provide
any
specific
time
guidelines or limitations. See T.291-94. However, “[b]y its very
-8-
nature ‘sedentary’ work requires a person to sit for long periods
of time. . . .” Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 643 (2d Cir. 1983).
Furthermore, Plaintiff testified that she experienced constant
pain in her lower back and in both sides of her buttocks, radiating
from her right buttock down the entire leg into the foot; it was an
“aching, pounding pain.” T.48. Asked what made the pain worse,
Plaintiff responded “[p]rolonged sitting, prolonged standing” and
anytime she has to stay in a certain position. T.49. She testified
that she was “[p]robably” able to stand for 10 minutes without a
problem and walk for 10 minutes without a problem, but when asked
if
she
could
Plaintiff
sit
without
explained
that
a
problem,
the
pain
she
in
replied
her
back
negatively.
will
start
“tightening up” her muscles so she will “go out of the chair and
back in, because [she] [has] to just keep maneuvering [her]self, to
try to be comfortable.” T.52. Even prior to the administrative
hearing, after her injury at work, when she was trying to return to
work in a lesser capacity in 2012, the restrictions imposed by her
medical providers no longer than 15 minutes of sitting and no
longer than 15 minutes of standing, as well as no stairs or no
climbing. T.61. Therefore, the ALJ’s “sit for 1-2 minutes after
standing 15
minutes,
and
stand
1-2
minutes
after
sitting
30
minutes” formulation is unsupported by substantial evidence in the
record, be it medical opinion or testimonial evidence. Moreover, as
-9-
in Cosnyka, the vocational expert’s opinion that there were jobs
that Plaintiff could perform was based upon hypothetical questions
involving the ALJ’s “sit for 1-2 minutes after standing 15 minutes,
and stand 1-2 minutes after sitting 30 minutes” formulation. See
T.67-68 (testifying that if an individual was unable to sit, stand
and walk, in combination, for at least eight hours in an eight-hour
day, there would not be any jobs). The ALJ’s finding that Plaintiff
is not disabled is based on an RFC that is not based on substantial
evidence and is based solely on his own surmise. Had the ALJ
included the sitting and standing limitations which were supported
by substantial evidence in the record, there would be no jobs that
Plaintiff could perform, based on the VE’s testimony.
B.
The ALJ Erred in Refusing to Find Plaintiff’s Depression
to Be a Severe Impairment.
Plaintiff
argues
that
the
ALJ
improperly
discounted
Plaintiff’s depression as a non-severe impairment at step two and
did not obtain a consultative psychological examiner’s opinion or
request a mental residual functional capacity assessment by a
treating
source.
Plaintiff
asserts
that
there
is
substantial
evidence in the record demonstrating that she was being treated
consistently by her doctors for depression.
In this Circuit, the step two “severity inquiry” serves only
to “screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019,
1030 (2d Cir. 1995). When mental impairments are at issue, the
severity determination (i.e., whether there is an abnormality
-10-
having more than minimal effect on the claimant’s ability to work)
is made by applying the “special technique” set out in 20 C.F.R.
§ 404.1520a(b)-(e); see also Kohler v. Astrue, 546 F.3d 260, 265–66
(2d
Cir.
2008)
technique
(describing
requires an
“special
ALJ to
“rate
technique”).
the
degree
The
special
of functional
limitation” in four areas: (1) “[a]ctivities of daily living;”
(2) “social
pace;”
functioning;”
and
(4)
(3)
“episodes
“concentration,
of
persistence,
decompensation.”
20
or
C.F.R.
§ 404.1520a(c)(3). Here, the ALJ’s application of the “special
technique” consists of the following sentence: “According to the
evidence of record, [he] finds the claimant has mild limitations in
activities
of
daily
concentration,
living,
persistence,
social
pace,
functioning,
and
no
and
episodes
in
of
decompensation.” T.27. Therefore, the ALJ found her medically
determinable mental impairment to be non-severe. T.27 (citing 20
C.F.R. § 404.1520a(d)(1)). However, although the ALJ appears to
have evaluated the four functional areas, he failed to record
specific findings to support the degree of limitation assigned to
any of the functional areas or to cite to any particular record
evidence in support of his application of the special technique.
This
Court’s
ability
to
provide
meaningful
appellate
review
accordingly is frustrated. See Kohler, 546 F.3d at 269
(“We can
neither
Kohler’s
identify
findings
regarding
the
degree
of
limitations in each of the four functional areas [at step two] nor
-11-
discern whether the ALJ properly considered all evidence relevant
to those areas. We therefore cannot determine whether the ALJ’s
decision regarding Kohler’s claim is supported by substantial
evidence
and
reflects
application
of
the
correct
legal
standards.”).
Moreover,
substantial
the
ALJ’s
evidence
in
step
light
two
of
finding
the
is
unsupported
long-standing
by
treatment
Plaintiff has received for her depression. Although the date of her
initial diagnosis is unclear, a treatment record from Dr. Glenn
Rechtine in August 2009, indicates she already had been prescribed
Cymbalta for depression. T.282. Plaintiff’s depressive symptoms
were treated throughout the relevant time by both Dr. Rechtine and
Dr. Wolff. See T.278, 273-274; 330; 331; 327-329; 325-326; 319;
315; 317; 309; 310; 313. Dr. Wolff’s notes indicate that Plaintiff
visited a psychiatrist at one point, but her Worker’s Compensation
insurance would not cover the cost, so she stopped going. T.309.
Dr.
Wolff
stated
on
a
multiple
occasions
that
Plaintiff’s
depression was severe and “worsening” despite a “high” dosage of
her anti-depressant, and that he wanted her to see a psychiatrist
for medication management, as well as a therapist for counseling.
See T.310, 317, 318, 329, 331.
The Commissioner argues that there is substantial evidence in
the
record
to
support
the
ALJ’s
conclusion
that
Plaintiff’s
depression is non-severe. The Commissioner cites one treatment note
-12-
by
Dr.
Wolff
indicating
that
Plaintiff’s
depression
was
“improving,” T.328, but ignores the treatment notes cited above
that indicate that Plaintiff felt medications were not helping and
that
her
symptoms
seemed
worse.
Further,
the
Commissioner’s
statement that Plaintiff’s depressive symptoms were controlled by
Cymbalta is not supported by the record. Plaintiff was taking both
Cymbalta and amitryptiline (Elavil), see T.327, but she “denie[d]
any improvement in her anxiety or depression, she wonders if she
needs a different anti[-]depressant. She does feel somewhat more
depressed.” T.330.
The Commissioner also argues that Plaintiff only alleged
disability based on physical impairments and, in any event, cannot
possibly have more than mild restrictions caused by her mental
impairments, since she stated, in a function report submitted at
the beginning of the disability application process, that she did
not need reminders to take her medicine, had no problems paying
attention, and could follow instructions. See T.167, 170-71. The
Commissioner’s argument depends on an assumption that Plaintiff
mental condition has been static, which is contrary to the record
in
this
attempting
case.
Moreover,
the
Commissioner
is
impermissibly
to supply post hoc rationalizations for the ALJ’s
flawed decision-making. See, e.g., Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999) (“A reviewing court ‘may not accept appellate
-13-
counsel’s
post
hoc
rationalizations
for
agency
action.’”)
(quotation omitted).
In
addition,
the
Commissioner’s
arguments
depend
on
a
selective parsing of the record. “It is a fundamental tenet of
Social Security law that an ALJ cannot pick and choose only parts
of a medical opinion that support his determination.” Nix v.
Astrue, No. 07–CV–344, 2009 WL 3429616, at *7 (W.D.N.Y. Oct. 22,
2009) (citing Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.
2004)). The November 2011 report cited by the Commissioner actually
states that Plaintiff answered affirmatively when asked if she has
trouble remembering things. See T.171 (stating that she “will
forget unimportant things” and that she “think[s] sometimes [her]
medicine makes [her] forget”). About two years later, at the
hearing in February 2013, Plaintiff testified as to increased
impairment in her memory. See T.51 (stating that she “used to
remember things very well” but now “it’s not good”). For instance,
Plaintiff could not remember the name of a medicine she took twice
a day, and she had to “write down everything” or else she would
forget. T.51. She also testified that her concentration and focus
“not good.” Id. Plaintiff testified that she goes into rooms and
forgets why she had done so; she used to be able to keep a lot of
information in her head for her job at the RPC and described her
memory as formerly being “very sharp” but “now it’s not good.”
T.51. At the time of the hearing, Plaintiff testified, “I take
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morphine, Lyrica, Cymbalta, Ambien, amitriptyline, calcium. That’s
all I
can remember.” T.50. Her records indicate she also was
taking
Butalbital-Acetominophen-Caffeine,
Lansoprazole,
and
Nystatin (topical). T.330. However, the ALJ failed to include in
his RFC the side-effects of these medications to which Plaintiff
testified, chiefly, her drowsiness and tiredness, lack of ability
to pay attention and concentration, difficulty remembering and
increased
forgetfulness.3
The
ALJ
recognized
that
Plaintiff
testified as to symptoms that would affect her productivity at
work, given that one of his hypotheticals to the VE posited an
individual who was off-task due to “medications and drowsiness”
15 to 20 percent of the time. The VE testified that such a
restriction would rule out all of the jobs to which he previously
testified. T.70. The VE testified that although a 5 percent level
3
Side effects of morphine include dizziness, drowsiness, nausea, vomiting
stomach pain and cramps, sweating, dry mouth, weakness, headache, agitation,
nervousness and confusion. See
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682133.html#side-effects.
Side effects of Ambien include drowsiness, tiredness, headache, dizziness,
lightheadedness, “drugged feeling”, unsteady walking, difficulty keeping
balance, nausea, constipation, and dry mouth. See
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a693025.html#side-effects.
Side effects of Lyrica include tiredness, dizziness, headache, dry mouth,
constipation, speech problems, difficulty concentrating or paying attention,
confusion, difficulty remembering or forgetfulness, anxiety, lack of
coordination, and loss of balance or unsteadiness. See
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a605045.html#side-effects.
Side effects of amitriptyline include drowsiness, weakness or tiredness,
nightmares, headaches, dry mouth,
constipation, changes in appetite or
weight, confusion, and unsteadiness. See
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682388.html#side-effects.
Butalbital-Acetominophen-Caffeine (Fioricet) can cause fast, pounding, or
uneven heartbeat; feeling light-headed or short of breath; drowsiness;
dizziness, confusion or lightheadedness; dry mouth;
drunk feeling; or
headache. See
http://www.rxlist.com/fioricet-drug/patient-images-side-effects.htm#sideeffect
s.
-15-
of being off-task possibly could be tolerated in the call out
operator
job
“in
the
beginning”,
even
5
percent
“might
be
problematic” “if it persisted[.]” T.71. The ALJ’s RFC did not take
into account any of the significant non-exertional limitations
caused by Plaintiff’s physical and mental impairments and the
medications she required to attempt to manage these impairments.
Had the ALJ included in his RFC these non-exertional limitations
that were supported by substantial evidence, the VE’s testimony
establishes that substantial gainful employment would be precluded.
V.
Remedy
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. The Second Circuit “has recognized delay
as a factor militating against a remand for further proceedings
where the record contains substantial evidence of disability.”
McClain v. Barnhart, 299 F. Supp.2d 309, 310 (S.D.N.Y. 2004)
(citations omitted). The standard for directing a remand for
calculation
of
benefits
is
met
when
the
record
persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004). That standard is easily met here, as
discussed
above.
Reversal
for
-16-
calculation
of
benefits
is
particularly appropriate because Plaintiff’s benefits claim has
been pending for over seven years, and additional administrative
proceedings would only lead to further delay.
VI. Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was erroneous as a matter of law and
was not supported by substantial evidence. Accordingly, Defendant’s
Motion for Judgment on the Pleadings (Dkt #8) is denied, and
Plaintiff’s Motion for Judgment on the Pleadings (Dkt #7) is
granted. The Commissioner’s decision is reversed, and the matter is
remanded solely for calculation and payment of benefits.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 9, 2015
Rochester, New York
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