Maneti v. Commissioner of Social Security

Filing 21

DECISION and ORDER GRANTING 11 Plaintiff's Motion for Judgment on the Pleadings; DENYING 18 Defendant's Motion for Judgment on the Pleadings. The matter is REMANDED to the Commissioner for calculation of benefits. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 9/25/2019. (TAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
TYRONE FRANK MANETI,
Plaintiff,
v.
ANDREW M. SAUL, 1 Commissioner of
Social Security,

DECISION
and
ORDER
18-CV-6388F
(consent)

Defendant.
______________________________________
APPEARANCES:

LAW OFFICES OF KENNETH R. HILLER, PLLC
Attorneys for Plaintiff
KENNETH R. HILLER, and
ANTHONY JOHN ROONEY, of Counsel
6000 North Bailey Avenue, Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
KATHRYN L. SMITH
Assistant United States Attorney
United States Attorney’s Office
100 State Street
Rochester, New York 14614
and
JASON PARKERSON PEEK
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
and

1

Andrew M. Saul became the Commissioner of the Social Security Administration on June 17, 2019, and,
pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to
continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

DENNIS J. CANNING
Special Assistant United States Attorneys, of Counsel
Social Security Administration
Office of General Counsel
601 E. 12th Street, Room 965
Kansas City, Missouri 64106

JURISDICTION
On July 9, 2019, this matter was reassigned to the undersigned before whom the
parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed in
accordance with this court’s June 29, 2018 Standing Order (Dkt. 20). The matter is
presently before the court on motions for judgment on the pleadings filed by Plaintiff on
December 18, 2018 (Dkt. 11), and by Defendant on April 9, 2019 (Dkt. 18).

BACKGROUND
Plaintiff Tyrone Frank Maneti (“Plaintiff”), brings this action under Title II of the
Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the Commissioner of Social Security’s final decision denying Plaintiff’s
applications filed with the Social Security Administration (“SSA”), on March 24, 2015,
2015, for Social Security Disability Insurance (“SSDI”) under Title II of the Act, and for
Social Security Supplemental Income (“SSI”) under Title XVI of the Act (together,
“disability benefits”). Plaintiff alleges he became disabled on December 5, 2014, based
on a learning disability. AR 2 at 185, 190. Plaintiff’s applications initially were denied on
May 11 and 12, 2015, AR at 53-66, and at Plaintiff’s timely request, on July 18, 2017, a
hearing was held in Rochester, New York, before administrative law judge Michael W.

2

References to “AR” are to the page of the Administrative Record electronically filed by Defendant on
October 19, 2018 (Dkt. 9).

2

Devlin (“the ALJ). AR at 27-52. Appearing and testifying at the hearing were Plaintiff,
represented by Ida M. Comerford, Esq. (“Comerford”), and vocational expert (“VE”)
David Festa.
On September 27, 2017, the ALJ issued a decision denying Plaintiff’s claim, AR
at 8-26 (“the ALJ’s decision”), which Plaintiff timely appealed to the Appeals Council.
AR at 152-54. On March 20, 2018, the Appeals Council issued a decision denying
Plaintiff’s request for review, rendering the ALJ’s decision the Commissioner’s final
decision. AR at 2-5. On May 25, 2018, Plaintiff commenced the instant action seeking
judicial review of the ALJ’s decision.
On December 18, 2018, Plaintiff moved for judgment on the pleadings (Dkt. 11)
(“Plaintiffs’ Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion
for Judgment on the Pleadings (Dkt. 11-1) (“Plaintiff’s Memorandum”). On April 9, 2019,
Defendant moved for judgment on the pleadings (Dkt. 18) (“Defendant’s Motion”),
attaching the Brief in Support of the Commissioner’s Motion for Judgment on the
Pleadings and in Response to Plaintiff’s Brief Pursuant to Local Standing Order on
Social Security Cases (Dkt. 18-1) (“Defendant’s Memorandum”). Filed on April 30,
2019, was Plaintiff’s Response to the Commissioner’s Brief in Support and in Further
Support for Plaintiff’s Motion for Judgment on the Pleadings (Dkt. 19) (“Plaintiff’s
Reply”). Oral argument was deemed unnecessary.
Based on the foregoing, Plaintiff’s Motion is GRANTED; Defendant’s Motion is
DENIED; the matter is remanded for calculation of benefits.

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FACTS 3
Plaintiff Tyrone Frank Maneti (“Plaintiff” or “Maneti”), born March 7, 1965, was 49
years old as of December 5, 2014, his alleged disability onset date (“DOD”), and 52
years old as of October 2, 2017, the date of the ALJ’s decision. AR at 21, 185. At age
20, Plaintiff finished high school where he attended special education classes, and has
not received any further education or vocational training other than a CDL Class B
(commercial) driver’s license. AR at 33-34, 134, 252, 268. Plaintiff never married, has
no children, and at the time he applied for disability benefits, lived with his mother, but
as of the date of the administrative hearing, had moved into his own apartment although
he continues to spend three to four days a week at his mother’s apartment, and
receives almost daily assistance from his mother. AR at 32-33, 43-45, 47, 203, 252.
Plaintiff has past work experience as a garbage collector, a construction worker,
and as a driver for a delivery company, with several years of full-time employment at
each of these jobs, but eventually was terminated from these jobs because of an
inability to focus, follow directions, and use a computer or cellular phone. AR at 34-40,
49-51, 229. Plaintiff also briefly worked in cleaning and maintenance at a local school,
but left the job when he moved his residence. AR at 38-39.
Plaintiff has a driver’s license, has a vehicle and regularly drives to grocery shop
and help his mother with errands. AR at 47-48, 207. Plaintiff can prepare some meals,
sometimes with his mother’s assistance. AR at 206. Plaintiff regularly receives help
from his mother with regard to completing paperwork and paying bills. AR at 43-44.
Although Plaintiff reports having a good relationship with his mother, Plaintiff also has

3

In the interest of judicial economy, recitation of the Facts is limited to only those necessary for
determining the pending motions for judgment on the pleadings.

4

brothers with whom Plaintiff does not socialize much, nor does Plaintiff have any
friends. AR at 46-47. Citing a desire to be alone and to stay away from people, Plaintiff
explains that he is most concerned with maintaining his own home and driving his
vehicle which Plaintiff considers his “freedom. . . .” AR at 48.
On May 19, 2015, Plaintiff began receiving primary health treatment at Parma
Health Center (“PHC”), in Hilton, New York, where Plaintiff was diagnosed by Arshad
Masood, M.D. (“Dr. Masood”), with attention deficit disorder for which Plaintiff was
referred for neurology and psychiatry consultation. AR at 285-332. On June 3, 2015,
Plaintiff underwent a neurological consultation with Louis H. Medved, M.D. (“Dr.
Medved”), whose impression was that Plaintiff’s goals, including obtaining assistance in
living on his own, were more appropriate for a social worker than a medical neurologist,
and that formal neuropsychological testing was necessary to document Plaintiff’s
cognitive disability. AR at 268-69. Accordingly, on June 29, 2015, Plaintiff underwent
an employability assessment performed by Tulio R. Ortega, M.D. (“Dr. Ortega”), a
psychiatrist. AR at 278-83. Dr. Ortega’s mental status examination of Plaintiff showed
Plaintiff with a learning disability, ADHD, problems with reading and attention, and
unable to follow directions. AR at 280. On a Monroe County Department of Human
Services (“DHS”) Psychological Assessment for Determination of Employability form
completed by Dr. Ortega, Plaintiff is indicated as having normal functioning in
maintaining basic standards of hygiene and grooming, but “very limited,” i.e., unable to
function 25% or more of the time, as to demonstrating the capacity to follow, understand
and remember simple instructions and directions, perform simple and complex tasks
independently, maintain attention and concentration for role tasks, regularly attend to a

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routine and maintain a schedule, and perform low stress and simple tasks. AR at 281.
Similar employability determinations on the same DHS Determination of Employability
form were made on June 13, 2016, and November 7, 2016, by mental health
professional Katherine Pawlaczyk, LCSW (“LCSW Pawlaczyk”), from whom Plaintiff
received services at West End Psychotherapy Services. AR at 356-59; 404-07. On
February 23, 2016, Plaintiff underwent a psychiatric evaluation with Brad Landsman,
Ph.D. (“Dr. Landsman”), who administered an IQ test on which Plaintiff scored an
“extremely low” full-scale IQ of 65. AR at 271-77. Dr. Landsman also administered
achievement testing, the results of which were consistent with the performance
predicted by the cognitive testing. AR at 275.

DISCUSSION
1.

Standard and Scope of Judicial Review
A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s
determination that a claimant is not disabled if the factual findings are not supported by
substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),
1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In
reviewing a final decision of the SSA, a district court “is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were

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based on a correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (internal quotation marks and citation omitted). “Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. It is not, however, the district court’s
function to make a de novo determination as to whether the claimant is disabled; rather,
“the reviewing court is required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be drawn” to determine
whether the SSA’s findings are supported by substantial evidence. Id. “Congress has
instructed . . . that the factual findings of the Secretary, 4 if supported by substantial
evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982).
2.

Disability Determination
The definition of “disabled” is the same for purposes of receiving SSDI and SSI

benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable
regulations set forth a five-step analysis the Commissioner must follow in determining
eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.
Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir.
1982). If the claimant meets the criteria at any of the five steps, the inquiry ceases and
the claimant is not eligible for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.
The first step is to determine whether the applicant is engaged in substantial gainful
activity during the period for which the benefits are claimed. 20 C.F.R. §§ 404.1520(b)
and 416.920(b). The second step is whether the applicant has a severe impairment

4

Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.

7

which significantly limits the physical or mental ability to do basic work activities, as
defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Third, if
there is an impairment and the impairment, or its equivalent, is listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or “the Listings”), and
meets the duration requirement of at least 12 continuous months, there is a
presumption of inability to perform substantial gainful activity, and the claimant is
deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§
423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth
step, however, if the impairment or its equivalent is not listed in Appendix 1, the
Commissioner must then consider the applicant’s “residual functional capacity” or “RFC”
which is the ability to perform physical or mental work activities on a sustained basis,
notwithstanding the limitations posed by the applicant’s collective impairments, see 20
C.F.R. 404.1520(e)-(f), and 416.920(e)-(f), and the demands of any past relevant work
(“PRW”). 20 C.F.R. §§ 404.1520(e) and 416.920(e). If the applicant remains capable of
performing PRW, disability benefits will be denied, id., but if the applicant is unable to
perform PRW relevant work, the Commissioner, at the fifth step, must consider whether,
given the applicant’s age, education, and past work experience, the applicant “retains a
residual functional capacity to perform alternative substantial gainful work which exists
in the national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of
proof is on the applicant for the first four steps, with the Commissioner bearing the
burden of proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4);
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).

8

In the instant case, the ALJ found Plaintiff met the insured status requirement for
SSDI through December 30, 2019, AR at 13, has not engaged in substantial gainful
activity since December 5, 2014, his alleged disability onset date, AR at 13, and suffers
from the severe impairments of attention deficit hyperactivity disorder, adjustment
disorder with depressed mood, persistent depression disorder (dysthymia), intellectual
disability, and learning disability, unspecified, as well as non-severe impairments of
some traits of anti-social personality disorder and avoidant features, but does not have
an impairment or combination of impairments meeting or medically equal to the severity
of any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1, id. at 13-16, that
Plaintiff retains the RFC to perform a full range of work at all exertional levels with the
nonexertional limitations of understanding, remembering and carrying out simple
instructions and tasks, occasionally interacting with co-workers and supervisors, little or
no contact with the general public, working in a low stress work environment (i.e., no
supervisory duties, no independent decision-making required, no strict production
quotas, minimal changes in work routine and processes, etc.), and consistently
maintaining concentration and focus for up to two hours at a time, id. at 16-20, and that
Plaintiff’s RFC permits Plaintiff to perform his PRW as a garbage collector and
construction worker. Id. at 20-21. Based on these findings, the ALJ determined Plaintiff
is not disabled as defined under the Act. Id. at 21.
Plaintiff does not contest the ALJ’s findings with regard to the first two steps of
the five-step analysis, but argues that at the third step, the ALJ improperly discounted
the opinions of Dr. Ortega, a psychiatrist, and Ms. Pawlaczyk, a social worker, whose
opinions indicated Plaintiff is very limited in certain key areas, Plaintiff’s Memorandum at

9

9-15, and also relied on an invalid IQ score, which if properly considered with the other
key criteria, establish Plaintiff meets the criteria for disability under Listing Impairment
12.05B. Plaintiff’s Memorandum at 15-18. Defendant argues substantial evidence
supports both the ALJ’s finding that Plaintiff’s impairments did not meet or equal a
Listing Impairment, Defendant’s Memorandum at 17-22, as well as the ALJ’s
assessment of Plaintiff’s RFC. Id. at 22-29. In reply, Plaintiff argues the ALJ improperly
discounted the opinions of Dr. Ortega and LSW Pawlaczyk, Plaintiff’s Reply at 1-3, and
improperly determined Plaintiff’s RFC without obtaining any opinion as to Plaintiff’s
physical capacity for work. Id. at 3. A fair reading of the record establishes substantial
evidence supports Plaintiff meets the criteria for disability under the relevant Listing of
Impairments.
Specifically, Listing Impairment 12.05B sets forth the criteria for disability based
on intellectual disorder, including, as relevant,
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal
or performance IQ score (or comparable part score) or 70 or below on an
individually administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning:
a. Understand, remember, or apply information (see 12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive functioning and
about the history of your disorder demonstrates or supports the conclusion that
the disorder began prior to your attainment of age 22.
20 C.F.R. Part 404, Subpt. P, App. 1, § 12.05B.

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The parties do not dispute that Plaintiff meets the criteria under 12.05B.1 and 3, but
disagree as to whether the 12.05B.2 criteria pertaining to adaptive functioning are met
with the ALJ finding that despite his low IQ, there is evidence in the record that Plaintiff
“has exhibited good adaptive functioning skills,” including living in his own apartment
which Plaintiff maintains by himself, cooking, cleaning, and doing laundry, obtaining and
maintaining a commercial driver’s license, and no exertional limitations. AR at 20. The
record, however, does not support the ALJ’s determination on this issue.
In particular, on the only three assessments in the record pertaining to adaptive
functioning, i.e., the DHS Psychological Assessment for Determination of Employability
forms completed by Dr. Ortega on June 29, 2015, and by LCSW Pawlaczyk on June 13,
2016, and November 7, 2016, Plaintiff was consistently assessed as “very limited”
functioning, i.e., unable to function 25% or more of the time, with regard to at least two
of the domains, including demonstrating the capacity to follow, understand and
remember simple instructions and directions, perform simple and complex tasks
independently, and maintain attention and concentration for role tasks. AR at 281, 358,
and 406. Not only do these assessments establish Plaintiff is “markedly” limited in the
domains of understanding, remembering, or applying information, as well as in
maintaining concentration, persistence and pace, see 20 C.F.R. Part 404, Subpt. P,
App. 1, § 12.05B(2)(a) and (c), but they are the only medical evidence in the record on
this point. The ALJ, however, discounted this evidence because LCSW Pawlaczyk is
not an acceptable medical source, and Dr. Ortega’s assessment, formed based on only
a single consultative examination, was limited to a period of less than 12 months, i.e.,
less than the 12-months statutory threshold for disability benefits. AR at 19. Although

11

social workers are not considered “acceptable medical sources” under the regulations,
see 20 C.F.R. § 416.913(a) 5 (defining “acceptable medical sources” to include, inter
alia, licensed physicians (medical or osteopathic doctors), and psychologists), licensed
social workers are considered to be among the non-medical “other sources” from whom
evidence may be considered for purposes of considering whether a claimant is disabled
under the Act. 20 C.F.R. § 416.913(d)(3). Accordingly, the opinions of LCSW
Pawlaczyk, from whom Plaintiff received monthly counseling services at West End
Psychotherapy Services between January 25, 2016 through February 7, 2017, AR at
343-93, should be considered. Further, insofar as Dr. Ortega, on June 29, 2015, limited
his disability finding to three to six month, AR at 281, that on June 13, 2016, LCSW
Pawlaczyk was unable to estimate the duration of Plaintiff’s disability, AR at 358, and on
November 7, 2016, estimated Plaintiff’s disability was expected to continue for at least
one year, AR at 406, establishes Plaintiff’s disability meets the statutory 12-months
threshold under 42 U.S.C. § 423(d)(1)(A) (providing the medically determinable physical
or mental impairment must have lasted or be expected to last for a continuous period of
not less than twelve months), and § 1382c(a)(3)(A) (same). Although LCSW Pawlaczyk
is considered a non-medical “other source,” evidence from her may still be considered
in determining the severity of an impairment, 20 C.F.R. § 416.913(d), including the
impairment’s anticipated duration. See Camilo v. Comm’r of Soc. Sec., 2013 WL
5692435, at * 20 (S.D.N.Y. Oct. 2, 2013) (holding the ALJ’s failure to acknowledge,
much less address, social worker’s opinion that the plaintiff would be disabled for at
least 12 months, based on an impairment diagnosed by a medical doctor, was error).

5

Because the regulations regarding medical and other evidence of impairment were amended effective
March 27, 2017, the regulations in effect when Plaintiff filed his claim are used.

12

With regard to the domain of understanding, remembering, or applying
information, § 12.05B.2.a, the relevant regulations provide
this area of mental functioning refers to the abilities to learn, recall, and use
information to perform work activities. Examples include: Understanding and
learning terms, instructions, procedures; following one- or two-step oral
instructions to carry out a task; describing work activity to someone else; asking
and answering questions and providing explanations; recognizing a mistake and
correcting it; identifying and solving problems; sequencing multi-step activities;
and using reason and judgment to make work-related decisions.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00E.1.
The ALJ found Plaintiff has only a mild limitation in this domain, with “some deficits in
intellectual functioning,” because despite being diagnosed with a learning disability, IQ
testing when Plaintiff was nine years old revealed a below average full scale IQ of 81,
and Plaintiff graduated from high school, and lives by himself. AR at 14. The evidence
in the record, however, shows that although IQ testing at age nine indicated Plaintiff had
a full-scale IQ of 81, AR at 200, IQ tests given prior to age 16 are not considered valid
after two years, whereas IQ scores tend to stabilize at age 16. Velez v. Astrue, 2013
WL 321552, at * 4 (W.D.N.Y. Jan. 28, 2013) (quoting 20 C.F.R. Pt. 404, Subpt. P, App.
1 § 112(D)(10)). Plaintiff’s later IQ testing when Plaintiff was 50 years old thus is an
acceptable indicator of Plaintiff’s IQ prior to age 22. See Goldthrite v. Astrue, 2010 WL
2998660, at * 3 (W.D.N.Y. July 27, 2010) (“Absent evidence of a change in a plaintiff’s
intellectual functioning, it is appropriate to assume that the results of an IQ test
administered after age 22 accurately reflects the plaintiff’s IQ prior to age 22.” (citing
Vasquez-Ortiz v. Apfel, 48 F.Supp.2d 250, 257 (W.D.N.Y. 1999) (finding the plaintiff met
the requirements for disability under § 12.05 despite not undergoing IQ testing until age
42))). Defendant essentially concedes this point, acknowledging that although the ALJ
specifically noted Plaintiff obtained a full scale IQ score of 81 at age nine, Plaintiff’s
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current IQ testing showed full-scale score of 65, which is within the “extremely-low
range.” Defendant’s Memorandum at 20, 23. Further, although the ALJ observed the
record was not clear as to the reason for the discrepancy in IQ scores, id. at 20 (citing
AR at 20), “‘absent evidence of sudden trauma that can cause retardation, [not present
in this case,] IQ tests create a rebuttable presumption of a fairly constant IQ throughout
[a person’s] life.’” Santiago v. Astrue, 2008 WL 2405728, at * 4 (W.D.N.Y. June 11,
2008) (bracketed material added) (quoting Hodges v. Barnhart, 276 F.3d 1265, 1268
(11th Cir. 2001)). Moreover, while in school, Plaintiff attended special classes where he
received below-average, often failing, grades, and required an additional three years to
receive a non-Regents diploma. 6 AR at 33-34, 197-202, 268.
Although as of the date of the administrative hearing, Plaintiff had recently
obtained his own apartment, AR at 32, not only is the apartment intended for people
with disabilities for which Plaintiff’s intellectual developmental disability was verified by
LCSW Pawlaczyk, AR at 365-69, but there is evidence in the record that the motivation
for Plaintiff to move into the apartment was to reduce his 76-year old mother’s “burden”
and allow her to move into senior housing. See AR at 46 (Plaintiff’s hearing testimony
that his mother moved into a “senior community”), and 269 (Dr. Medved reporting
Plaintiff desired to “live and function independently and to reduce the burden on his
mother”). Even after Plaintiff moved into his apartment, Plaintiff continued to spend
three to four days and nights per week at his mother’s apartment because he often
needed help with such tasks as completing paperwork and managing his finances. AR

6

It is not clear from the record whether Plaintiff actually graduated from high school or merely aged out of
eligibility for public education. See AR at 198-200 (portions of Plaintiff’s high school records indicating
Plaintiff remained in 11th grade for at least four years, including school years 1981-82 through 1984-85,
and would turn 21 on March 7, 1986).

14

at 32-33. This is consistent with Plaintiff’s earlier failed attempt to live on his own after
Plaintiff’s father passed away in 2006, by staying in his father’s house, but was unable
to manage the upkeep so his mother sold the house. AR at 46. Plaintiff also has
difficulty managing money, as evidenced by his overuse of credit cards requiring him to
declare bankruptcy. AR at 45.
The ALJ determined that Plaintiff left some jobs on his own accord, AR at 20, yet
a fair construction of the evidence on which the ALJ relies in making this statement fails
to support it. In particular, the ALJ references the opinion of Dr. Medved stating that
Plaintiff “describes his employment history as spotty, jumping from job to job. From his
description, it sounds that he had quit some jobs and was terminated from others.” AR
at 268. Dr. Medved’s statement on this point thus is, at best, equivocal. Nor did the
ALJ comment on the very next sentence in Dr. Medved’s report, describing “[a] common
theme was apparently difficulty following directions and procedures or answering
complex questions such as to people to whom he made deliveries,” AR at 268, which
can only be construed as consistent with Plaintiff’s low intellectual functioning, as well
as Plaintiff’s administrative hearing testimony regarding his work history. Specifically,
Plaintiff testified that he was terminated from the delivery job after only three days
because he was unable to use a computer, cell phone or GPS, and constantly became
lost, AR at 34-35, and was terminated from two garbage collecting jobs because he was
unable to focus and was late for work. Id. at 35-37. A move required Plaintiff to
voluntarily leave a part-time job he held for less than three months doing cleaning and
maintenance for a school district, AR at 38-39, but Plaintiff was terminated from a
similar job with the Village of Hilton, New York when he was unable to follow directions.

15

Id. at 39-40. Plaintiff also held a part-time construction job for several years, but could
not handle the stress of the job. AR at 39.
In short, nothing in the record supports the ALJ’s determination that Plaintiff has
only a mild limitation as to understanding, remembering, and applying information as
provided under 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B.2.a.
With regard to the domain of concentration, persistence, and maintaining pace,
§ 12.05B.2.c, the relevant regulation provides
this area of mental functioning refers to the abilities to focus attention on work
activities and stay on task at a sustained rate. Examples include: Initiating and
performing a task that you understand and know how to do; working at an
appropriate and consistent pace; completing tasks in a timely manner; ignoring or
avoiding distractions while working; changing activities or work settings without
being disruptive; working close to or with others without interrupting or distracting
them; sustaining an ordinary routine and regular attendance at work; and working
a full day without needing more than the allotted number or length of rest periods
during the day.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00E.3.
The ALJ found Plaintiff has a moderate limitation attributed to Plaintiff’s attention deficit
hyperactivity disorder for which Plaintiff takes medication, and that Plaintiff was limited
only with regard to his ability to maintain attention and concentration for rote tasks. AR
at 14. Nothing in the record, however, indicates that despite being limited as to
maintaining attention and concentration for rote tasks, Plaintiff is not similarly limited
with regard to non-rote tasks, a point not addressed by either the ALJ or Defendant. It
simply exceeds the limits of common sense that a disability claimant with deficits in the
domain of concentration, persistence and maintaining pace as to “rote tasks” would not
also have such deficits with regard to more complex tasks.
Moreover, as discussed in connection with the domain of understanding,
remembering, and applying information, Discussion, supra, at 14-16, there is a plethora
16

of evidence in the record that Plaintiff is markedly limited insofar as Plaintiff remained in
high school for three years beyond what generally is required to graduate, repeating
classes in special education, and has been terminated from several jobs because of
Plaintiff’s inability to satisfactorily complete tasks, including making deliveries and
collecting garbage, in accordance with the requirements of such jobs. Significantly,
although Plaintiff did manage to obtain a CDL after several tries, he never used the
license for work because Plaintiff is unable to use a computer or cell phone. AR at 334,
419.
Accordingly, substantial evidence in the record establishes Plaintiff is markedly
limited in the domain of concentrating, persisting or maintaining pace, as defined under
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05B.2.c. The determination that Plaintiff is
markedly limited in the domains of understanding, remembering, or applying
information, as well as in concentrating, persisting or maintaining pace establishes
Plaintiff meets the requirements for disability under Listing Impairment § 12.05B.
Moreover, having found Plaintiff meets the criteria for disability based on a Listing
Impairment, the inquiry ceases. 20 C.F.R. § 416.920(d) (providing claimant who meets
or equals criteria of a Listing Impairment is considered disabled without regard to age,
education, and work experience). Accordingly, the matter is REMANDED for calculation
of benefits.
Mindful of the often painfully slow process by which disability determinations are
made, the Second Circuit instructs that some evaluation of relative hardship to a
claimant of further delay should be considered, Butts v. Barnhart, 388 F.3d 377, 387 (2d
Cir. 2004), district courts may therefore “when appropriate set a time limit for action by

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the administrative tribunal, and this is often done.” Zambrana v. Califano, 651 F.2d 842,
844 (2d Cir. 1981) (citing cases). See also Michaels v. Colvin, 621 Fed.App'x. 35, 41
(2d Cir. 2015) (directing upon remand for further fact-finding at step five that given eight
years had elapsed since the plaintiff filed for disability benefits, the further administrative
proceedings were to be completed within 120 days, with the Commissioner's final
decision to be rendered within 60 days of any appeal by the plaintiff from the ALJ's
decision, and citing Butts v. Barnhart, 388 F.3d 377, 387 (2d Cir. 2004) (imposing time
limit on remand where “the past delay is of such magnitude – years – that a time limit is
imperative”) as amended on reh'g in part, 416 F.3d 101, 106 (2d Cir. 2005) (providing
that if deadlines for further administrative proceedings at the fifth step, on which the
Commissioner bears the burden of proof, are not met, “a calculation of benefits owed
[plaintiff] must be made immediately)).
Here, Plaintiff filed his application for disability on March 24, 2015 (R. 185),
testified at an administrative hearing on July 18, 2017 (R. 27-52), received the ALJ’s
Decision finding Plaintiff not disabled on September 27, 2017 (R. 8-26), and the
Appeals Council’s denial on March 20, 2018. (R. 2-5). As it has been more than four
years since Plaintiff first filed his application for disability, further delay for remand is a
hardship this Plaintiff should not bear. The Commissioner's calculation of benefits
should therefore be completed within 120 days of this Decision and Order. See
Dambrowski v. Astrue, 590 F.Supp.2d 579, 588 (S.D.N.Y. 2008) (imposing a time limit
of 120 days for subsequent proceedings when five years had passed since Plaintiff filed
his application).

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CONCLUSION
Based on the foregoing, Plaintiff’s Motion (Dkt. 11) is GRANTED; Defendant’s
Motion (Dkt. 18) is DENIED; the matter is remanded to the Commissioner for calculation
of benefits. The Clerk of Court is directed to close the file.
SO ORDERED.

/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED:

September 25th, 2019
Buffalo, New York

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